CPUC won’t weigh in on effort to pay fire costs to ratepayers

The California Public Utilities Commission won't be stepping into San Diego Gas & Electric Co.'s years-long battle to recover costs linked to 2007 fires unless it is ordered to do so.

The waiver of rights to respond to the utility's petition to the U.S. Supreme Court was filed Monday by the commission's attorney, Christine Jun Hammond. San Diego Gas & Electric Co. (SDG&E) v. California Public Utilities Commission, 18-1368.

The majority of cert petitions filed with the U.S. Supreme Court are not accepted, which could mean the CPUC doesn't believe the case will be granted review. However, the Supreme Court could order the CPUC to respond to SDG&E's petition.

Michael S. Aguirre of Aguirre Severson LLP in San Diego, who represents ratepayer Ruth Henricks in the fight to oppose SDG&E's petition, called the CPUC's move "disappointing."

"If the CPUC gets out of the way, that's something that will work against utility customers like my client," Aguirre said.

Hammond forwarded comment inquiries to Terrie Prosper, director of news and outreach for the California Public Utilities Commission. Repeated requests for comment to Prosper were not returned.

A spokesperson for SDG&E released the following statement:

"It is common practice for a respondent to waive their response to the cert petition. The CPUC will have an opportunity to weigh in if the Court calls for a response in June. SDG&E remains optimistic that the Supreme Court will take seriously the important issues raised in our petition, and will call for the CPUC's response, so that we can engage on the merits of our case."

For a decade, SDG&E has attempted to charge $379 million to ratepayers to reimburse money linked to the 2007 San Diego County wildfires that wasn't covered by insurance. After being denied by both the CPUC, the 4th District Court of Appeal and the state Supreme Court, SDG&E took its fight to the nation's highest court, claiming a violation of constitutional rights.

SDG&E's petition to the Supreme Court asked whether "it is an uncompensated taking for public use in the violation of the Fifth and Fourteenth Amendments for a state to impose strict liability for inverse condemnation in a privately-owned utility without ensuring the cost of that liability is spread to benefited ratepayers."

SDG&E maintains that if it must pay under strict liability, the company has the right to and should be provided the opportunity to disperse the costs among ratepayers, according to the petition.

Aguirre noted the state Supreme Court couldn't find any important federal issues to consider when it reviewed the case.

"We argue that [SDG&E's] petition is not well taken because the last court that heard the case ruled that SDG&E didn't raise any vital constitutional issues," said Aguirre. "If the California Supreme Court decides not to hear the case, that's considered a decision on the merits, and it'll be hard to argue for the U.S. Supreme Court to review the case."

Aguirre sued the CPUC in October 2017 in the Southern District of California. Ruth Henricks v. California Public Utilities Commission, Michael Picker, 3:17-CV-02177, (S.D. Cal., filed Oct. 24, 2017).

Aguirre said he dismissed the suit when the CPUC agreed to approve two administrative law decisions that SDG&E should not be allowed to pass on the fire costs to ratepayers. Now, Aguirre said he and his client are left wondering why the CPUC isn't stepping in at the high court.

"It's like watching a slow-moving train heading in my direction and I'm left wondering, 'where's the CPUC?'"