Southern California Edison

117 Cal. App. 4th 1039 (2004), 12 Cal. Rptr. 3d 441, 2004 Cal. App. LEXIS 568

The Court of Appeal (Second District, Division 8), affirmed a Commission award of intervenor compensation to TURN.  At issue was the portion of the award compensating TURN for its efforts as an intervenor in a proceeding in federal court.  Edison had initiated the federal action to challenge the Commission’s jurisdiction to enter certain rate orders in a Commission proceeding to which both TURN and Edison were parties.  The Court of Appeal held that TURN’s activities as an intervenor in the federal court proceeding on behalf of the defendant therein (the Commission) fell within the scope of the phrase “obtaining judicial review” in Section 1802.  The Court deferred to the Commission’s construction of Section 1802, citing language from Southern Californian Edison v. Peevey, 31 6 (2003 Cal. 4th 78) (“Peevey”) stating that “the PUC’s interpretation of the Public Utility (sic) Code ‘should not be disturbed unless it fails to bear a reasonable relation to statutory purposes and language.’”  The Peevey court, in turn, had cited Greyhound Lines, Inc. v. Public Utilities Com. (1968) 68 Cal. 2d 406, 410-411 (Para. 71, infra)  for that proposition.  The Court seems to have applied the second step of Chevron deference without applying the first. That approach, however, does find support in Greyhound (to a much greater extent than from Edison v. Peevey where the Legislature had expressly authorized the Commission to determine “uneconomic costs”).  In any event, the affirmation of the vitality of Greyhound (and thereby Greyhound deference) was significant because Greyhound arguably requires a greater level of deference to the Commission’s construction of statutes than that enjoyed by any federal agency under Chevron and its progeny.  One must question, however, whether Greyhound deference remains appropriate for the intervenor compensation statutes in light of New Cingular Wireless I and II (Paras. 3 and 4).  At the same time, the reader should also note that Section 1759 requires a Superior Court to adhere an even stricter level of deference, requiring it to defer to the Commission’s construction of a statute if “even palpably erroneous.”  Anchor Lighting v. Edison, 142 Cal. App. 4th 541, 548 (August 30, 2006) (Para. 18 of the Appendix).

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