HomeMy WebLinkAbout2000-06-27; City Council; 15803 Exhibit 2; Redevelopment Plan Adoption EIRMAY, 2000
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City of Carlsbad
Housing and Redevelopment Department
SOUTH CARLSBAD COASTAL
REDEVELOPMENT PLAN ADOPTION
PROGRAM ENVIRONMENTAL IMPACT REPORT
RESPONSES TO COMMENTS
Prepared for:
Carlsbad Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, California 92008-2389
(760) 434-2815
Prepared by:
Culbertson, Adams & Associates, Inc.
85 Argonaut, Suite 220
Aliso Viejo, California 92656-4105
(949) 581-2888
STATE CLEARINGHOUSE NO. 99101 106
DRAFT EIR COMMENTS AND RESPONSES
INTRODUCTION
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In accordance with Section 15088 of the State CEQA Guidelines, the Carlsbad Housing and
Redevelopment Department has reviewed and evaluated each of the written comments submitted on
the Draft Environmental Impact Report @Et). This chapter contains all of the letters and comments
received during the Draft EIR review period, along with the Department’s responses.
Five timely submitted comment letters were received during the 45-day public review period for the
Draft EIR (February 17,2000 to April 3,2000). One comment letter was received subsequent to the
closing of the public review period. The comment letters and associated responses are organized in
chronological order.
Received comments addressed issues generally including biological resources, well sites, school
impacts, power plant impacts, and construction impacts. As appropriate, revisions to EIR discussion
and mitigation measures are provided in this Responses to Comments document. Added mitigation
measures provide for detailed environmental review for yet-to-be-defined residential and commercial
projects to ensure analysis of biological impacts, abandoned wells, school impacts and City facilities.
No new significant environmental impacts result from the submitted comments and associated
revisions to the EIR.
The persons and/or agencies that have submitted comments on the South Carlsbad Coastal
Redevelopment Plan Draft Program EIR are listed below. The comment letters have been lettered
so that corresponding responses can be easily identified. The letters and comments are reproduced
and presented in a format that depicts the written comment, with each comment bracketed and
numbered, in a reduced size on one side of the page, with corresponding responses aligned opposite
the comments on the same page.
There is no legal obligation to respond to comments received after April 3,2000. However, to the
extent that late comments were received, the Department will endeavor to incorporate them into the
record.
COMMENT LETTERS RECEIVED REGARDING DRAFT PROGRAM EIR
A. United States Fish & Wildlife Service / California Department of Fish & Game, March 27,
B. State of California Department of Conservation, March 30, 2000.
C. Carlsbad Unified School District, March 3 1 , 2000.
D. Hofman Planning Associates, April 1 2000 (received April 4,2000).
E. Sempra Energy, April 3,2000.
F. State of California, Governor’s Office ofplanning and Research, State Clearinghouse, April 3,
2000.
2000.
South Carlsbad Coastal Redevelopment Plan
Program Environmental Impact Report
1
Responses to Comments
May, 2000
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ATTACHMENT 1
LEGEND - REDEVELOPMENT PROJECT AREA
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ATTACHMENT 2
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I FINAL MASTER
CITY OF CARLSBAD Environmental Imoact Reooly
5.3.4 Level of Sianificance
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Impacts to air quality from the implementation of the proposed General Plan will be significant and not
fully mitigable. 'The existing policies and proposed mitigation lessen the impacts to the greatest extent
possible given the regional nature of air quality. Without implementation of the General Plan policies,
air quality impacts will be more severe.
5.3.5 Miticration Measures
The following existing policies and mitigation measures are required to reduce significant air quality
impacts to the lowest level possible.
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Planned Land Use Pattern
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6.
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9.
Development applications should contribute to and extend existing systems of foot or bicycle
paths, equestrian trails, and the greenbelts provided for in the Circulation, Parks and Recreation
and Open Space Elements. (Land Use Element, Overall Land Use Pattern, C.7.5.)
Development should provide for safe, easy pedestrian and bicycle linkages to nearby
community centers, parks, schools, points of interest, major transportation corridors,
neighborhood commercial centers, and the proposed Carlsbad Trail System. (Combined from
Land Use Element, Overall Land Use Pattern, C.7.7; Residential, C.12; Commercial C.2.e.)
Provide for a sufficient diversity of land uses so that schools, parks and recreational areas, ,
churches and neighborhood shopping centers are available in close proximity to each resident
of the City. (Land Use Element, Overall Land Use Pattern, C.8.)
Locate multi-family uses near commercial centers, employment centers, and major
transportation corridors. (Land Use Element, Residential, C.6.)
Encourage a variety of residential accommodations and amenities in commercial areas to
increase the advantages of "close-in" living and convenient shopping. (Land Use Element,
Residential, C. 1 1 .I
Require new master planned developments and residential specific plans of over 100 acres to
provide usable acres to be designated for community facilities such as daycare, worship, youth
and senior citizen activities. (Land Use Element, Residential, C.13.)
Comprehensively design all commercial centers to be easily accessible to by pedestrians,
bicyclists, and automobiles to nearby residential developments. (Land Use Element,
Commercial, C.3.)
Orient travel/service commercial areas along the 1-5 corridor, in the Village, or near
resorthecreation areas. (Land Use Element, Commercial, C.8.)
Limit general industrial development within the community to those areas and uses with
adequate transportation access. (Land Use Element, Industrial, C.2.)
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FINAL MASTER
Environmental Imnact Renofl CITY OF CARLSBAD
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18.
Require new industrial specific plans to provide, within the proposed development, a
commercial site designed to serve the commercial needs of the occupants of the business park.
(Land Use Element, Industrial, C.8.)
Regulate industrial land uses on the basis of performance standards, including, but not limited
to, noise, emissions, and traffic. (Land Use Element, Industrial, C.ll .)
Control nuisance factors (noise, smoke, dust, odor, and glare) and do not permit them to
exceed city, state and federal standards. (Land Use Element, Industrial, C.12.)
Implement the policies of the Regional Growth Management Strategy when the program is
adopted by the City. (Land Use Element and Circulation Element, Regional Circulation
Considerations, C. 1 )
The City should encourage adaptive reuse of aging industrial, commercial and some residential
buildings by developing an ordinance that would create affordable living spaces for combined
living/working spaces. (Housing Element, Program 2.4)
Review existing zoning and land use policies to remove impediments to mixed use
development. Major commercial centers should incorporate, where appropriate, mixed
commercial/residential uses. Major industriaVoffice centers, where not precluded by
environmental and safety considerations, should incorporate mixed industrial/office/residential
uses. (Housing Element, Program 2.5)
The City will study the impact of commercial and industrial development on housing demand
and the ability of local employees to afford local housing. Where adverse impacts are
identified, mitigation measures will be considered to reduce the impact. These measures
include, but are not limited to, the requirement of commercial and industrial developers and
employers to contribute an in-lieu fee towards the production of affordable housing and
employer assistance to finance affordable housing for their employees. (Housing Element,
Program 4.1)
Consider housing density, proximity to schools, general public access, local resident access,
adjacent residential area traffic impacts, safe pedestrian access, and compatible use with the
surrounding environment when determining park locations. (Parks and Recreation Element,
Park Development, C.5.)
Require, where possible, the individual developers of master planned communities to provide
pocket parks and active recreational facilities unique to each development. (Parks and
Recreation Element, Park Development, C.8.)
Transportation Planning
19. Require new development to comply with the adopted (September 23, 1986) Growth
Management performance standards for circulation facilities. (Circulation Element, Streets and
Traffic Control, C.l.)
20. Minimize the number of access points to major and prime arterials to enhance the functioning 1
of these streets as throughways. (Circulation Element, Streets and Traffic Control, C.4.)
t .. 1 5.3-8 AIR QUALITY
FINAL MASTER
CITY OF CARLSBAD Environmental lmaact Report
21. Provide traffic 'control devices along all roadway segments and at intersections and
interconnect and synchronize the operation of traffic signals along arterial streets, whenever
feasible. (Circulation Element, Streets and Traffic Control, C.7 and C.11 .I
22. Encourage joint public/private efforts to improve parking and circulation in developed areas.
(Circulation Element, Streets and Traffic Control, C.14.)
23. Encourage the inclusion of onsite or nearby amenities such as day care facilities, dry cleaners
and convenience stores within residential and industrial projects to reduce vehicular trips.
(Circulation Element, Regional Circulation Considerations, C.2.)
Alternate Modes of Transportation
24.
25.
26.
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28.
29.
30.
31.
32.
33.
Encourage the construction of sidewalks along all public roadways with social emphasis given
to collectors, arterials, and areas with high pedestrian traffic generators such as schools,
commercial centers, transportation facilities, public buildings, beaches and parks. (Circulation
Element, Alternate Modes of Transportation, C.l .I
Encourage pedestrian circulation in commercial areas through the provision of convenient
parking facilities, increased sidewalk width, pedestrian-oriented building designs, landscaping,
street lighting and street furniture. (Circulation Element, Alternate Modes of Transportation,
C.2.)
Design pedestrian spaces and circulation in relationship to land uses and available parking for
all new construction and redevelopment projects. (Circulation Element, Alternate Modes of
Transportation, C.3.)
Link public sidewalks to the network of public and private trail systems. (Circulation Element,
Alternate Modes of Transportation, C.4.1
Provide for handicapped access to and along public sidewalks and along as much of the trail
system as feasible. (Circulation Element, Alternate Modes of Transportation, C.5.)
Install sidewalks and trail systems within existing and new industrial developments.
(Circulation Element, Alternate Modes of Transportation, C.6.)
Coordinate the location of bicycle routes with the Parks and Recreation Element and the open
Space and Conservation Element. (Circulation Element, Alternate Modes of Transportation, c.11 .I
Develop and implement employer incentive programs to encourage the placement of strategic
bicycle storage lockers, and the construction of safe and convenient bicycle facilities.
(Circulation Element, Alternate Modes of Transportation, C. 13.)
Improve bicycle access to beach areas. (Circulation Element, Alternate Modes of
Transportation, C.15.)
Provide linkage to bus, pedestrian and bicycle routes from any new light rail commuter transit
facility. (Circulation Element, Alternate Modes of Transportation, C.18.)
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FINAL MASTER
Environmental Impact Report CITY OF CARLSBAD
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Encourage passive and active use of the railroad right-of-way as tail linkage and bicycle
pathway. (Circulation Element, Alternate Modes of Transportation, C. 19.1
Encourage commuter usage -of busses, carpools and vanpools through a combination of
employer incentives, public education programs and construction of safe, convenient and
aesthetically pleasing transfer facilities. (Circulation Element, Alternate Modes of
Transportation, C.21 .I
Encourage the expansion of bus service and new routes into developing or redeveloping areas
of the City. (Circulation Element, Alternate Modes of Transportation, C.22.)
Establish a Carlsbad Trail System, primarily pedestrian oriented, but for bicycles where feasible,
provided that a financing mechanism for the trail is approved. (Open Space and Conservation
Element, TraiVGreenway System, C. 1 .)
Design the trail system to serve both recreation and non-motorized transportation proposes.
(Open Space and Conservation Element, TraiVGreenway System, C.4.)
Provide, whenever possible, incentives for car pooling, flex-time, shortened work weeks,and
telecommunications and other means of reducing vehicular miles traveled. (Open Space and
Conservation Element, Air Quality Preservation, C.3.)
Design and construct trails within parks to connect with the proposed Carlsbad Trail System
as part of future park development. (Parks and Recreation Element, Park Development, C.11 .I
Regional Cooperation
41.
42.
43.
44.
45.
46.
Participate in the implementation of transportation demand management programs on a regional
basis. (Open Space and Conservation Element, Air Quality Preservation, C.l .I
Restrict, whenever possible, all unnecessary vehicle trips during episode violations as defined
by the State Air Resources Board. (Open Space and Conservation Element, Air Quality
Preservation, C.2.)
Make every effort to participate in programs to improve air quality in the San Diego Region.
(Open Space and Conservation Element, Air Quality Preservation, C.4.)
Monitor air quality and cooperate with the ongoing efforts of the U.S. Environmental Protection
Agency, the San Diego Air Pollution Control District, and the State of California Air Resources
Board in improving air quality in the regional air basin. (Open Space and Conservation Element,
Air Quality Preservation, C.5.)
Coordinate with the San Diego Association of Governments (SANDAG) and the North County
Transit District (NCTD) on the installation of any new trolley or light rail transit systems.
(Circulation Element, Alternate Modes of Transportation, C.17.)
Plan and coordinate park-and-ride facilities with CALTRANS, NCTD and SANDAG. (Circulation
Element, Alternate Modes of Transportation, C.20.)
FINAL MASTER
CITY OF CARLSBAD Environmental lmoact Re~ort
Energy Conservation
47. The City will continue to implement energy conservation measures in new housing
development through State Building Code, Title 24 regulations, and solar orientation of major
subdivisions through Title 20, Chapter 17 of the Municipal Code. (Housing Element, Program
5.1 1
The following mitigation measure shall be incorporated into the Open Space and Conservation Element.
Construction-Related Impacts
48. The City shall monitor all construction to ensure that proper steps are taken by developers to
reduce short-term construction related impacts to air resources. During cleaning, grading, earth
moving or excavation developers shall:
Control fugitive dust by regular watering, paving construction roads, or other dust
preventive measures;
Maintain equipment engines in proper tune;
Seed and water until vegetation cover is grown;
Spread soil binders;
Wet the area down, sufficient enough to form a crust on the surface with repeated
soakings, as necessary, to maintain the curst and prevent dust pick up by the wind;
Street sweeping, should silt be carried over to adjacent public thoroughfares;
Use water trucks or sprinkler systems to keep all areas where vehicles move damp
enough to prevent dust raised when leaving the site;
Wet down areas in the late morning and after work is completed for the day;
Use of low sulfur fuel (0.5% by weight) for construction equipment.
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ATTACHMENT 2
ATTACHMENT 3
Ruth Love
Real Estate Advisor
Real Estate & Facilities
H0050
101 Ash Street
San Diego. CA 92101
Tel: 619-696-2481
Fax: 619-696-2595
January 21,2000
Ms. Deborah K. Fountain, Director
Housing and Redevelopment Department
City of Carlsbad
2965 Roosevelt Street, Suite B
Carlsbad California 92008
Re: Draft Environmental Impact Report (DEIR) for
South Carlsbad Coastal Redevelopment Plan
Dear Debbie: , .-
The purpose of this letter is to provide additional information to the City of Carlsbad concerning
the topic of electromagnetic fields as a potential issue for discussion in the Hazards and
Hazardous Materials section of the DEIR.
As thoroughly discussed in San Diego Gas and Electric Companv. Petitioner, v. The Superior
Court of Orange Countv. Respondent: Martin Covalt et al.. Real Parties in Interest, 13 Cal. 4”
893 (1 996), the California Supreme Court, the California Public Utilities Commission
(“Commission”) and the State Department of Environmental Health have concluded that they are
not only unsure whether adverse health affects exist from electric and magnetic fields, but they
also do not know what measures could be taken that would be protective of public health of such
health affects did exist. The results of existing studies are inconclusive. See, for example, the
materials and references provided herein.
Because CEQA findings concerning whether a project may have significant effects on the
environmental shall be made upon the basis of “substantial evidence” in light of the whole record
and not upon argument, speculation, unsubstantiated opinion or narrative, and because the
existence of public controversy over the environmental effects of a project shall not require the
preparation of an EIR without such substantial evidence, it is inappropriate to identify and
evaluate EMF as a “hazardous material” or as a “hazard” to human health in the DEIR. As noted
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Deborah K. Fountain
January 21,2000
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in the above California Supreme Court case, there is no substantial evidence that such a hazard
exists.
Enclosed are copies of this case, and excerpts of 1992-1 996 research reviews that reference
nineteen separate reports. You may also wish to refer to these web sites for additional
information. See:
1. National Academv of Sciences report Possible Health Eflects of Ejcposure to
Residential Electric and Magnetic Fields (1 997), full text online at
http://books.nap.edu/books/0309054478/html/index.html
2. The press release regarding the study entitled Exposure to Power-9equency
Magnetic Fields and the Risk of Childhood Cancer. The Lancet 1999 December 4;
353(9194):1925-31, at http://www.nrpb.org.uk/Pr17-99.htm
3. The National Institute of Environmental Health Sciences report Health Eflects
?om Exposure to Power-Line Frequency Electric and Magnetic Fields (issued June
1999), at: http://www.niehs.nih.gov/emfiapid/html/EMF~DIR-RF’T/Report-18f.htm
Debbie, thank you for receiving this information and distributing it to your consultant. We trust
this infomation is helpll.
Sincerely,
”
Ruth Love
Enclosures
Excerpts From the Conclusions of 1992-96 Research Reviews
By Major Scientific Organizations and Independent Regulatory Advisory Groups
National Research Council (National Academy Of Sciences]
Possible Health Effects from Exposure to Electric and Maqnetic Fields
Committee on the Possible Effects of Electromagnetic Fields on Biologic Systems,
Board on Radiation Effects Research, Commission on Life Sciences
Washington, DC, October 1996
“Based on a comprehensive evaluation of published studies relating to the effects of power frequency electric
and magnetic fields on cells, tissues, and organisms (including humans), the conclusion of the commiftee,is
that the current body of evidence does not show that exposure to these fields presents a human-health
hazardSpecificaIly, no conclusive and consistent evidence shows that exposures to residential electric and
magnetic fields produce cancer, adverse neurobehavioral effects, or reproductive and developmental
effects. ” (p. I)
”The body of evidence, in the commiffee’s judgment, has not demonstrated that exposure to power-frequency
electric and magnetic fields is a human-health hazard. However, some epidemiologic data support an
association between sumgate measurements of magnetic fields and an increased risk of childhood
leukemia. Further research for understanding the various ways of measuring exposure and their possible
association with adverse health outcomes in model and human systems will be needed to resolve the
uncertainty. ” (p. 185)
Virginia Department of Health
Monitorinq of Onaoinq Research on the Health Effects of High Voltaqe Transmission Lines
Eleventh Annual Report
February 1996
*The preponderance of evidence for an increased risk of cancer in humans from exposure to EMF presented
in the epidemiologic studies published so far, taken individually or collectively, can best be construed as
tenuous, and does not allude to an inordinate hazard.. . .Given the inherent limitations of the epidemiologic
studies, absence of an exposure-effect or dose-response relationship, lack of consistency and specificity of
observations, and a void in experimental verification, it is not currently possible to state with any certainty that
there is a human health risk associated with exposure to EMF or with living near high voltage transmission
lines.” (p. 18)
American Cancer Society
Electromannetic Field ExDosure and Cancer: A Review of Epidemioloqic Evidence
CA-A Cancer Journal for Clinicians
January/February 1996
“The weakness and inconsistent nature of epidemiologic data, combined with the continued dearth of
coherent and reproducible findings from experimental laboratory research, leave one uncertajn and rather
doubtful that any real biologic link exists befween EMF exposure and carcinogenicity.. ..Should our research
investment not lead to reproducible and cohesive results, the scientific community will need to reach some
consensus about the likelihood and possible extent of risk. While it may be impossible to prove either the
presence or absence of risk, perhaps it can be feasible to assign likely risk boundaries upon which practical
guidelines for community consensus can be reached. ” (p. 42-43)
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American Physical Society
Backqround Paper on Powerline Fields and Public Health
Panel on Public Affairs
May 1995
“The scientific literature and the reports of review panels show no consistent, significant link between cancer
and the 60-Hz ELF fields. This literature includes epidemiological studies, research on biological systems,
and the analyses of theoretical mechanisms. This result is consistent with those that have advanced
arguments that there can be no such link. The preponderance of the epidemiological and
biophysicalhiological research findings have failed to substantiate those studies that have reported specific
adverse health effects from the exposure to 60 Hz ELFs. It is always possible that some minor carcinogenic
connection might be found, but the present data do not establish that connection.” (p. 7-2)
American Medical Association
Effects of Electric and Maanetic Fields
Report 7 of the Council on Scientific Affairs
January 1995
”Some studies of the past 15 years have associated exposures to 50 or 60 Hz electric and magnetic fields
with slightly elevated risk of developing cancer or leukemia in children or adults. However, the inconsistency
of the results and the shortcomings of most of the studies, in terms of selecting test and control groups,
estimating exposures, and accounting for key variables that might affect outcomes, detract from the studies’
conclusions .... It is not certain that electromagnetic fields pose health risks, or if they do, which attribute or
mechanism of action is responsible .... Yet, without stronger evidence there is no problem, it would be unwise
to dismiss the possibility that electromagnetic fields have adverse health effects.”~. 10-f 7
’The Council of Scientific Affairs recommends that the following statement[s] be adopted and that the
remainder of the report be filed.
c “rhat] no scientifically documented health risk has been associated wi?h the usually occumng
levels of electromagnetic fields; nevertheless, the American Medical Association should continue
to monitor development and issues related to the subject. (p. 72)
National Radioloqical Protection Board
Electromaqnetic Fields and The Risk of Cancer,
Supplementary Report by the Advisory Group on Non-ionizing Radiation
Prepared for National Radiological Protection Board, United Kingdom April 1994
“The [Advisory] Group [on Non-lonising Radiation] has concluded that all these studies [Swedish, Danish,
Finnish childhood epidemiology studies] were well controlled and substantially better than that previously
reported associations with cancer. The studies do not establish that exposure to electromagnetic fields is a
cause of cancer but, taken together, they do provide some evidence to suggest that the possiblility exists in
the case of childhood leukemia. ” (p. 79)
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“Thus, at present, there is no persuasive biological evidence that ELF electromagnetic fields can influence
any of the accepted stages in carcinogenesis. There is no clear basis from which to derive a meaningful
assessment of risk, nor is there any indication of how any putative risk might vary with exposure.” (p. 80)
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Expert Group on Non-lonisinn Radiation
The Danish Ministrv of Health
Report on the Risk of Cancer in Children Livinq in Homes Exposed to
50 Hz Magnetic Fields From Hiqh Voltaqe Lines (Appendum), Denmark
February 1994
7he combined analyses [of the Swedish, Danish, and Finnish childhood epidemiology studies] add more
statistical power to the statistical association of childhood cancers with 50 Hz magnetic field exposure but
cannot resolve the uncertainty in terms of causal inference.
Following a discussion of the combined analyses, the Danish expert group concerning non-ionizing radiation
does not find reason to change the main conclusions in this [1993] report." (p. 66)
Universities Consortium on Electromagnetic Fields
Investigations in Power-Line Frequency EMF and Its Risks to Health: A Review
of the Scientific Literature (1992 SupplementL Colorado
February 1994
"This review of the 1992 published literature has not caused us to change our initial summary or
recommendations bn our 1992 reporty (p. 7)
Expert Group on Non-lonising Radiation
The Danish Ministry of Health
Report on the Risk of Cancer in Children Livinq in Homes Exposed to
50 Hz Maqnetic Fields From High Voltaqe Lines, Denmark
May 1993
7he expert group believed that neither the earlier nor the latest studies offers sufficient documentation to
characterize 50 Hz magnetic fields in homes adjacenf to high-current electricity supply plants as a cancer-
inducing factor among children. The studies described do not, however, allow this assumption to be
dismissed. The group, therefore, finds no scientific reason for establishing standards with respect to high-
current plants. " (p. 70)
Department of the Partnership for Social and Economic Development
National Institute of Health and Medical Research
Synthesis of the Literature on Health Effects From Very Low Frequency Electric and Maqnetic Fields
National Institute of Health and Medical Research, Paris, France
February 1993
"Any epidemiological data must be interpreted in light of its biologic plausibility and experimental results.
Now, animal experiments have never demonstrated carcinogenic effects of exposure to EMF. In conclusion,
the epidemiologic results presently available do not permit the exclusion of a role for magnetic fields in the
incidence of leukemia, particularly in children. New investigations are necessaty to confirm or deny this role. I'
(Pa 46)
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Department of Enercrv. Ireland
Electromaqnetic Fields. A Review of Recent Developments in Research and
Public Attitudes, and the Response of Authorities to These Developments
A report to Mr. Robert Molloy, T.D., Minister of Energy, Department of Energy
July 1992
"Without exception these reports and the positions taken by the organizations concerned do not see enough
evidence to be able to indict electromagnetic fields as a hazard to health." (p. xx) [In this report the
Department of Energy refers to all the other reviews as part of their conclusion]
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Oak Ridne Associated Universities
Health Effects of Low-Freauencv Electric and Maqnetic Fields
Prepared by Oak Ridge Associated Universities for the United States Committee
on Interagency Radiation Research and Policy Coordination (ORAU9ZF8)
June 1992 (Released November 1992)
"This review indicates that there is no convincing evidence in the published literature to support the
contention that exposures to extremely low-frequency electric and magnetic fields (ELF-EMF) generated by
sources such as household appliances, video display terminals, and local powerlines are demonstrable
health hazards.
"Epidemiologic findings of an association between electric and magnetic fields and childhood leukemia or
other childhood or adult cancers are inconsistent and inconclusive. No plausible biological mechanism is
presented that would explain causality. Neither is there conclusive evidence that these fields initiate cancer,
promote cancer, or influence tumor progression. Likewise, there is no convincing evidence to supporC
suggestions that electric and magnetic fields result in birth defects or other reptuductive problems.
Furthermore, any neurobehavioral effects are likely to be temporary and do not appear to have health
consequences. " (p.ES-I1 to ES-12)
National Radiolonical Protection Board
Electromagnetic Fields and The Risk of Cancer
Report of an Advisory Group on Non-ionizing Radiation
Prepared for National Radiological Protection Board, United Kingdom
(Vol. 3, No. 1, 1992), Chilton, Didcot, Oxon OX1 1 ORQ
June 1992
"In the absence of any unambiguous experimental evidence to suggest that exposure to these
electromagnetic fields is likely to be carcinogenic, in the broadest sense of the term, the findings to date can
be regarded only as sufficient to justa fonnulating a hypothesis for testing by further investigation. I' (p. 132)
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Committee of the Health Council of the Netherlands
Extremelv Low-Frequencv Electromaqnetic Fields and Health
A report prepared by a Committee of the Health Council of the Netherlands.
April 1992
"mhe Committee thinks that any evidence from currently available research is insufficient to support the
hypothesis that exposure to ELF EMF generated by the electricity distribution system and by electric
household appliances and industrial electrical equipment has any influence on the initiation or growth of
malignancies, or on the course of pregnancy or fetal development.
The Committee recognizes that several epidemiological studies in the US have reported a relation between
the configuration of ovethead distribution lines (the 'wire code? and the incidence of childhood leukemia. This
relation is in itself insufficient reason for the Committee to assume a causal relationship between exposure. to
ELF EMF and the incidence of leukemia (or other types of cancer). A relation with the measured field
strength has not been found. 'I (emphasis in originar). (p.21)
Connecticut Academy of Science and Ennineerirlg
Electromaqnetic Field Health Effects
Response to inquiry for the Department of Health Services,
State of Connecticut Prepared by Connecticut Academy of Science and Engineering
April 1992
mhe only general conclusion can be that the state of our knowledge at this time does not permit firm
judgements [sic] about possible adverse effects of Extremely Low Frequency (ELF) magnetic fields on
human health. Even the weight of evidence indicating the possibility of such effects versus the weight of
evidence that such effects could not occur is difficult to judge. Absolute proof.of the occurrence of adverse
effects of ELF fields at prevailing magnitudes cannot be found in the available evidence, and the same
evidence does not permit a judgement [sic] that adverse effects could not occuc as is true for any putative
hazard without a solid base of evidence.
. . ."Epidemiological studies of human populations exposed to magnetic fields are dHcult to interpret. At this
time, they lack a proven mechanism, the excess risks are relatively small, and the estimate of exposures is
fraught with diffculties. Associations between exposure, and attempts to relate the excess risks to actual
measurements of magnetic fields have been relatively unsuccessful. This failure may be due to the difficulties
in documenting past exposures by recent measurements.
Thus, the epidemiological literature does not presently support a conclusion that electromagnetic field
exposure unequivocally increases risk for cancer or any other adverse health outcome. In fact, the totality of
the epidemiological studies suggests that if adverse health effects from residential electromagnetic field
exposure exist, they are not likely to make a large contribution. If (p. 7)
r-
Universities Consortium on Electromagnetic Fields
lnvestination in Powerline Frequency EMF and Its Risks to Health:
A Review of the Scientific Literature
Submitted by Universities Consortium on Electromagnetic Fields, Colorado
March 1992
"Taken together, the conclusions from this review highlight the absence of health effects directly related to 60
Hz alternating current EMF on humans. It is equally clear that the book is not closed. Several questions
remain unanswered that should be addressed in carefuly conducted research by qualified investigators who
are knowledgeable in the problems and pitfalls of this type of research. If (p.2)
.-
5
c
I
"-
Electro-magnetic Health Effects Committee, Public Utilitv Commission of Texas
Health Effects of Exposure to Powerline-Frequencv Electric and Maanetic Fields.
Electro-magnetic Health Effects Committee,
Public Utility Commission of Texas, Austin, Texas
March 1992
"The Committee believes that, based on its evaluation of the existing EMF research, the evidence at this time
is insufficient to conclude that exposure to EMF from electric power transmission lines poses an imminent or
signikant public health risk. In general, the Committee's evaluation is corroborated by other EMF literature
summaries and background reports.
The Committee concludes that at presenf there is insufficient evidence regarding human health effects of
EMF to provide the basis for a health-based standard. The Committee can find no reason to create arbitraty
numbers to use as a desired level of exposure, because the use of such numbers cannot be argued or
defended on the basis of scientific evidence. The primary objective of the Committee is the protection of
public health, and the Committee can find no scientific argument to support standards, either through
guidance or through regulatory criteria. 'I (p.xxi)
Illinois Department of Public Health in coordination with the Illinois EPA
Possible Health Effects of Extremely Low Freauencv Electric
and Magnetic Fields Exposure: A Review
Prepared in Response to House Resolution 1064 of the 86th General Assembly of the State of Illinois
by the Illinois Department of Public Health in coordination with the Illinois EPA
March 1992
"Even though certain bioeffects have been clearly established, the basis for those effects and the underlying
mechanisms of interaction remain largely unknown. Whether these observed ELF bioeffects cause adverse
health effects in humans and animals is not yet clear. No scientific consensus has been reached on this
issue. without sufficient information, health risks from exposure to these fields cannot be properly
determined. " (p.iii)
Environmental Protection Aqencv Science Advisorv Board
A letter written in response to memorandum from
EPA requesting a peer review of the draft report
Evaluation of the Potential Carcinonenicity ofElectromaqnetic Fields
Prepared by Environmental Protection Agency Science Advisory Board
January 1992
(EPA/60016-90/005B)
"Currently available information is insufficient to conclude that the electric and magnetic fields are
carcinogenic. Some human epidemiologic data report an association between surrogates for electric and
magnetic field exposure and an increased incidence of some types of cancer, but the conclusion of causality
is currently inappropriate because of limited evidence of an exposure-response relationship and lack of a
clear understanding of biologic plausibility. " (p.3)
Revised: 21 January, 2000
6
"
c
LISTING OF MAJOR SCIENTIFIC ORGANIZATIONS AND INDEPENDENT
REGULATORY ADVISORY GROUPS THAT HAVE CONDUCTED SCIENTIFIC REVIEWSI
National Research Council, National Academy of Sciences (October 1996)
Virginia Department of Health (February 1996)
American Cancer Society (JanuarylFebruary 1996)
American Physical Society (May 1995)
American Medical Association (January 1995)
National Radiological Protection Board, United Kingdom (April 1994)
Expert Group on Non-lonising Radiation, The Danish Ministry of Health (February 1994)
Universities Consortium on Electromagnetic Fields, Connecticut (February 1994)
Expert Group on Non-lonising Radiation, The Danish Ministry of Health (May 1993)
National Institute of Health & Medical Research, France (February 1993)
Oak Ridge Associated Universities (Prepared for the United States Committee on Interagency Radiation
Research and Policy Coordination) (June 1992; released November 1992; updated Spring 1993)
Department of Energy, Ireland (September 1992)
National Radiological Protection Board, United Kingdom (June 1992)(Updated Spring 1993)
Health Council of the Netherlands (April 1992)
Connecticut Academy of Science and Engineering (April 1992)
Universities Consortium on Electromagnetic Fields, Connecticut (March 1992)
Electro-Magnetic Health Effects Committee, Public Utility Commission of Texas (March 1992)
Illinois Department of Public Health/The Illinois Environmental Protection Agency (March 1992)
Environmental Protection Agency Science Advisory Board (commenting on the 1990 draft EPA report
listed above) (January 1992)
Committee on Interagency Radiation Research and Policy Coordination, U.S. (1991)
American Conference of Governmental Industrial Hygienists (1 991)
Environmental Protection Agency (1990)
International Non-Ionizing Radiation Committee of the International Radiation Protection Association
(1 990)
'In these "reviews," interdisciplinary scientific panels collect and analyze hundreds of individual EMF "studies." Each of these 1
reviews is sponsored and published by government agencies or established scientific, health or academic institutions and
represents the most authoritative efforts to put the whole of the science of EMF into perspective. All of these reviews conclude
that there is no sound scientific basis for contending that exposure to power-frequency EMF poses a health risk to humans. Most
reviews support further research to resolve unanswered questions.
c
LISTING OF MAJOR SCIENTIFIC ORGANIZATIONS AND INDEPENDENT
REGULATORY ADVISORY GROUPS THAT HAVE CONDUCTED SCIENTIFIC REVIEWS
California Public Utilities Commission/ California Department of Health Services (1 989)
United States Congress, Office of Technology Assessment (1989)
New York State Public Services Commission (1988)
New York State Power Lines Project (1 987)
World Health Organization (1987)
Florida Electric and Magnetic Fields Science Advisory Commission (1 985)
American Institute of Biological Science (1985)
World Health Organization (1984)
-National Academy of Sciences (I 977)
2
Page 3
1ST CASE of Level 1 printed in FULL format.
" SAN DIEGO GAS AND ELECTRIC COMPANY, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
MARTIN COVALT et al., Real Parties in Interest.
No. S045854.
SUPREME COURT OF CALIFORNIA
13 Cal. 4th 893; 920 P.2d 669; 1996 Cal. LEXIS 4216; 55 Cal. Rptr. 2d 724; 96 Cal. Daily Op.
Service 6288; 96 Daily Journal DAR 10287
August 22, 1996, Decided
PRIOR HISTORY: [***13 Superior Court Orange County.
Ct. App. 4/3 No. 6016256. Court of Appeal
of Califonrnia, Fourth Appellate District, Division
Three. Super. Ct. No. 722284. Hon. John M.
Watson, Judge.
DISPOSITION: The judgment of the Court of Appeal is
affirmed.
CORE TERMS: electric, magnetic, powerline, water, ex-
posure, italics, magnetic field, cause of action,
customer, park, appliance, cancer, noise, transmis-
sion, scientific, trespass, guidelines, interfere,
public health, electricity, voltage, energy, fre-
quency, inverse condemnation, intrusion, electromag-
netic, residential, exclusive jurisdiction, public
utility, radiation
COUNSEL:
Palmieri, Tyler, Wiener, Wilhelm 8 Waldron, Frank C.
Rothrock, Gary C. Weisberg, Smith, Helms, Mulliss &
Moore, William L. Young, O'Connor, Cohn, Dillon 8
Barr, Duncan Barr and Joel C. Lamp for Petitioner.
Fred J. Hiestand, Catherine I. Hanson, Gregory M.
Abrams, Kirk B. Johnson, Michael L. Ile, Martin S.
Kaufman, J. Michael Reidenbach, John Stuart Tinker,
Horvitr & Levy, Ellis J. Horvitz, Frederic D. Cohen,
Julie L. Woods, Spiegel & McDiarmid, Daniel I.
Davidson, Scott H. Strauss, De Cuir & Somach and David
S. Kaplan as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Casey, Gerry, Casey, Westbrook, Reed & Schenk,
Frederick Schenk, Schroeter, Goldmark & Bender,
Michael E. Withey, Robinson 8 Phillips and Mark R.
Robinson for Real Parties in Interest.
Leslie Brueckner, Uylie A. Aitken, Annee Della Donna,
Miller, Starr & Regalia, Edmund L. Regalia and Arthur
F. Coon as Amici Curiae on behalf of Real Parties
t***21 in Interest.
JUDGES: Opinion by Mosk, J., expressing the unanimous
view of the court.
OPINIONBY: MOSK
OPINION: [*9021 C**6731
MOSK, J.
Section 1759 of the Public Utilities Code nl de-
clares that no court except this Supreme Court has
jurisdiction to review any order or decision of the
Public Utilities Cmission (hereafter the cmis-
sion) or to interfere with the comnission in the
performance of its duties. Section 2106, however,
authorizes an action in superior court for dapges
caused by any unlawful act of a public utility. In
Waters v. Pacific Telephone Co. (1974) 12 Cal. 3d
1, 4 t114 Cal. Rptr. 753, 523 P.2d 11611, this
court held that llin order to resolve the potential
conflict between sections 1759 and 2106, the latter
section must be construed as limited to those situa-
tions in which an award of [*9031 damages would not
hinder or frustrate the comnission's declared super-
visory and regulatory po1icies.I' Ue granted review in
this case to determine whether section 1759 as con-
strued in Waters bars a superior court action for
property damage allegedly caused by the electric and
magnetic fields arising from powerlines owned and op-
erated by a public utility. 1***31 We shall con-
clude that such an action would impermissibly inter-
fere with a broad regulatory policy of the comnission
on this subject, and hence is barred by section 1759
as construed in Waters. We therefore affirm the judg-
Page 4
13 Cal. 4th 893, '903; 920 P.2d 669, **673;
1996 Cat. LEXIS 4216, ***3; 55 Cal. Rptr. 2d 724
- ment of the Court of Appeal so holding.
e
nl All further unlabeled statutory references are
to this code.
BACKGROUND
"Although 'electric and magnetic fields' may sound
mysterious or ominous to some people, scientists have
had a good understanding of them since the nine-
teenth century." (U.S. Cong., Office of Technology
Assessment, Biological Effects of Power Frequency
Electric and Magnetic Fields (1989) p. 4 (here-
after OTA Report).) n2 To [**6743 begin with,
Health Services (Cal. Dept. Health Services,
Electric and Magnetic Fields: Measurements and
possible Effects on Hunan Health (1992) (DHS
Report)). For the relevant basic science,
the opinion also draws from a respected general
source. (18 New Encyc. Britannica (15th ed.
1990) Electricity and Magnetism, p. 159; id.,
Electromagnetic Radiation, p. 195.) The material
we set forth is not in dispute and will be helpful
in understanding the issues; our discussion is not
intended, of course, to be a full scientific pre-
sentation of the subject of electric and magnetic
fields.
[***51
n3 It is the natural electrical activity in the hu-
"Electric and magnetic fields arise from many natu- man body, for example, that makes possible such fa-
re1 sources. They appear throughout nature and in miliar diagnostic tools as the electrocardiograph
all living things." (OTA Rep., supra, at p. 4.) and the electroencephalograph.
The Earth has a strong magnetic field arising from
the rotation of its inner core. Atmospheric forces
cause large electric fields at the Earth's surface
during thunderstorm [***41 activity. Certain miner-
als in the Earth's crust, particularly iron and its
compounds, have magnetic properties and give rise to
magnetic fields. And at the hunan level, the body it-
self is a strong source of internal electric fields:
%ll cells in the body maintain large natural electric
fields across their outer membranes. These naturally
occurring fields are at least 100 times more intense
than those that can be induced by exposure to cormon
Since the development of comnercial and domestic
uses of electricity in the last century, many man-
made sources of electric and magnetic fields have been
added to the foregoing natural sources. They arise
primarily from the electric power systems that gener-
ate and deliver electricity to factory, office, and
home, and from the machinery, appliances, and light-
ing that electricity'operates. The scientific expla-
nation for all electric and magnetic fields, however,
is the same. - power-frequency fields." ( Id. at p. 1.) Indeed,
this phenomenon is essential to life: "cells, espe-
cially [*9041 those in the nervous system, make use
of complex electrochemical processes in their normal
function." ( Id. at p. 2.) n3 -
c
n2 The cited report is a background paper pre-
pared for the congressional Office of Technology
Assessment by the Department of Engineering and
Public Policy of Carnegie Mellon University. This
portion of our opinion is drawn from that re-
port and from a second report by the same au-
thors (Dept. Engineering & Pub. Policy,
Carnegie Mellon U., Electric and Magnetic Fields
from 60 Hertz Electric Power: What Do We Know
About Possible Health Risks? (1989) (Carnegie
Mellon Report)), as well as similar reports by
the United States Enviromntal Protection Agency
(U.S. Envtl. Protection Agency, Questions and
Answers About Electric and Magnetic Fields (1992)
(EPA Q&A)) and by the California Department of
Every constituent of matter has an electric
charge, which is either positive or negative.
Charges that are alike (tuo positive or two negative
charges) repel each other, while opposite charges
(one positive and one negative charge) attract; this
is the electric force. The electric force acts along
a 1 ire between the two charges, and its strength is
inversely proportional to the square of the distance
between them: e.g., if the distance [***61 between
the two charges is doubled, the force of attraction or
repulsion becomes weaker by a factor of four, decreas-
ing to one-quarter of its original strength. Every
charge has an electric field, which is the region of
space in which the charge is capable of exerting, at
a distance, an electric force of attraction or re-
pulsion on any other charge. The electric field al-
ways begins on a positive charge and ends on a neg-
ative charge. Like the electric force, the strength
of the electric field diminishes with distance from
the source of the field.
When an electric charge is moving, however, it cre-
ates a different and additional force on any other
Page 5
13 Cal. 4th 893, *904; 920 P.2d 669, **674;
1996 Cal. LEXIS 4216, ***6; 55 Cal. Rptr. 2d 724
charge in its vicinity, provided the second charge is
also moving: this is the magnetic force. Like the
electric force, the strength of the magnetic force di-
minishes with distance. Every moving charge likewise
has a magnetic field, which is the region of space in
which the charge is capable of exerting, at a dis-
tance, a magnetic force on any other moving charge.
The magnetic field is more complex than the electric
field: for example, the magnetic field does not have
a beginning or an end, but forms closed, continuous
loops of force [***7l around the source of the field.
n4 Like the electric field, however, the strength of
the magnetic field also diminishes with distance.
n4 The "field linesm1 forming these loops are made
visible in the well-known experiment in which an
ordinary magnet is held underneath a sheet of pa-
per on which iron filings are scattered.
An electric current is a group of charges moving
in the same direction through a wire or other conduc-
tor. Voltage is the difference in electric [*9053
potential that causes the charges to flow through the
wire; it is analogous to the pressure in a water pipe
before the faucet C**67!53 is opened (e.g., in pounds
per square inch), and is measured in volts (V) or, in
the case of powerlines, in thousands of volts or kilo-
volts (kV). Current is the rate at which the charges
flow through the wire; it is analogous to the rate at
which water flows through a pipe after the faucet is
opened (e.9.. in gallons per minute), and is measured
in amperes. The quantity of power t***81 (in watts)
that a conducting wire transmits is thus the product
of its voltage and its current. Power systems are
designed to hold the voltage relatively constant but
to meet fluctuating demand by allowing the current to
rise and fall.
The strength or intensity of an electric field is
proportional to its voltage, and is measured in volts
per meter or in kilovolts per meter. The strength of
a magnetic field is primarily proportional to its cur-
rent; the most comnonly used 'unit of measurement of
the strength of a magnetic field--or more properly,
of %mgnetic flux densityIl--is the gauss. Because
the gauss is a large unit, such fields are often mea-
sured in thousandths of a gauss or mi lligauss (mG).
n5
n5 Since magnetic fields depend on current but
electric fields depend only on voltage, an appli-
ance (e.g., an electric fan) that is plugged into
an electric outlet but is not turned on generates
an electric field because the voltage is always
present, but it does not generate a magnetic field
because there is no current; when the appliance is
turned on, the current flows and a magnetic field
arises as well. If the appliance is then oper-
ated at a higher current level (e.g., by increas-
ing the fan speed), the strength of the magnetic
field will increase but not that of the electric
field, because the voltage remains constant. ,
t***91
Electric fields are affected by objects in the en-
vironment, especially objects that conduct electric-
ity: some of the field lines will end on charges in
the object. For example, buildings, tall fences, and
even trees can partially block electric fields aris-
ing from nearby powerlines. n6 Magnetic fields, by
contrast, pass through most objects and can be blocked
only by special shielding materials.
n6 Although the effect varies with the construction
material, a typical house will block out about 90
percent of any electric field in which it is sit-
uated.
Electric and magnetic fields affect conducting ob-
jects in the enviromnt by the dual processes of
electric and magnetic induction. n7 Such fields
cause charges to flow in conducting objects; the re-
sulting currents are said to be induced by the fields.
The hunan body is a conducting object because it con-
tains free electric charges, largely in such fluids
as the blood and the [*9061 lm. When a hunan
body is in an electric or a magnetic field, [***lo1
therefore, the field induces a current in the body.
Electrically induced currents and magnetically in-
duced currents flow in different patterns in the body
and the strength of each depends on a variety of fac-
tors, but each is far weaker than the body's natural
currents. n8
n7 The induction effect of electric fields, at
least, has long been known to the comnission (e.g.,
Postal Te1.-Cable Co. v. Railroad Com. (1925)
197 Cal. 426 [241 P. 811) ad to this court (e.g.,
Postal Te1.-Cable Co. v. Pacific C. 8 E. Co.
Page 6
13 Cal. 4th 893, *906; 920 P.2d 669, **675;
1996 Cal. LEXIS 4216, ***lo; 55 Cal. Rptr. 2d 724
(1927) 202 Cal. 382 1260 P. 1101, 56 A.L.R. 4141).
n8 "The amouni of this current, even if you are
directly beneath a large transmission line, is
extremely small (millionths of an anperel. The
current is too weak to penetrate cell membranes;
it is present mostly between the cells.I# (Nat.
Inst. Envtl. Health Sciences & U.S. Dept.
Energy, Questions and Answers About EMF, Electric
and Magnetic Fields Associated Uith the Use of-
Electric Power (1995) p. 9 (NIEHS & USDE QUI.)
Naturally [***I11 occurring electric and magnetic
fields, such as the Earth's magnetic field, are
static. Fields arising from powerlines oscillate,
because the current in powerlines does not flow
steadily in one direction (direct current) krt flows
alternately first in one direction and then in the
other (alternating current). In the United' States
and Canada, the flow of current in electric power-
lines reverses direction 60 times each second: the
power is therefore said to have a frequency of 60 cy-
cles per second, or 60 hertz (Hz). In turn, this
oscillation causes the electric and magnetic fields
arising from the powerlines to likewise reverse their
direction 60 times each second; they are therefore
said to be 60-hertz fields or power-frequency fields.
Sixty-hertz fields are also called extremely low-
frequency fields, for the following reason. C**6761
Such fields are only one form of the energy known
as electromagnetic radiation. That energy, which is
both natural and manmade in origin, has a wide vari-
ety of effects on matter depending on its frequency:
the higher the frequency, the shorter the wavelength
and the greater the energy. The frequencies of dif-
ferent [***12] forms of electromagnetic energy ex-
tend over an enormous range, comaonly represented as
a spectrun. At one end of the electromagnetic spec-
trun are X-rays and gam rays, which have extremely
high frequencies (1016 Hz to 1025 Hz and above) and
hence extremely high energy. n9 Next on the elec-
tromagnetic spectrun is ultraviolet light, which has
somewhat lower frequencies (1015 Hz to 1016 Hz) and
hence somewhat lower energy. Below it is the famil-
iar spectrun of visible light, followed in sequence by
infrared waves, microwaves (1 billion HZ to 300 bil-
lion Hz), and television and radio waves (500,000 Hz
to 1 billion Hz). Although each of these has progres-
sively lower frequencies and energy, even the lowest
(AM radio) has a frequency range of 500,000 Hz (500
kHz) to 1.6 million Hz (1600 kHz). Lowest of all
on the electromagnetic spectrun are electric and mag-
netic fields such as those arising from the powerlines
in this case. When their frequency of a mere 60 Hz is
compared with the frequency [*9073 of the other forms
of electromagnetic energy, it is evident why they are
called "extremely low frequency" fields.
n9 A frequency of 1025 Hz is thus a nunber of cy-
cles per second of 1 followed by 25 zeros. The
figures given in this paragraph, of course, are
approximations.
1***131
An important consequence of the low frequency and
resulting low energy of electric and magnetic fields
is that they are non-ionizing. An atom or molecule
is said to be ionized when one or mre of its elec-
trons is dislodged by an energetic outside force such
as very high-frequency radiation. Gam rays, X-
rays, and high-frequency ultraviolet light are termed
ionizing radiation because their energy is so great
that they are capable of ionizing atoms or molecules
of ordinary matter. Uhen that matter is human tis-
sue, ionization can damage the DNA molecules of the
cells, causing mutations and various forms of can-
cer. 'IHowever, the energy carried in 60 Hz fields is
much too small to break molecular or chemical bonds.It
(Carnegie Mellon Rep., supra, at p. 9, italics in
original.) Like visible light, infrared, microwaves,
and television and radio waves, electric and magnetic
fields are therefore termed non-ionizing radiation.
n10
n10 Although 60 Hz fields are included in the
general category of non-ionizing radiation be-
cause they are undoubtedly non-ionizing, they are
not properly called "radiation": as the United
States Environmental Protection Agency has ob-
served, Itelectric and magnetic fields from 60 Hz
exposures are not considered 'radiation' for var-
ious technical reasons, . . .It (EPA P&A, supra,
at p. 2.) One of those reasons is the distinc-
tion between propagating fields or waves, which
can travel far from their source (e.g., visi-
ble light or radio waves), and confined fields,
which diminish rapidly with distance from their
source. 8%ecause the power-frequency fields of
public health concern are not of the propagat-
ing type, it is technically inappropriate to refer
to them as 'radiation. I (OTA Rep., supra, at
p. 6.) Indeed, in comnon usage even propagating
Page 7
13 Cat. 4th 893, *907; 920 P.2d 669. **676;
1996 Cal. LEXIS 4216, ***13; 55 Cal. Rptr. 2d 724
c waves such as visible light and radio waves are
not spoken of as Ilradiationll; that term is gener-
ally reserved for ionizing radiation, such as X-
rays and gam rays.
c
[*** 141
One form of non-ionizing radiation--microwaves--
can nevertheless cause biological damage by a dif-
ferent process: microwaves are absorbed by the wa-
ter present in tissue, and can induce currents strong - enough to heat the tissue. nll But While 60 Hz
c
fields can also set up currents in tissue, these cur-
rents are much weaker. The amount of heat they gener-
ate is trivial compared to the natural heat that comes
from the cells of the body. There is no reason to be-
lieve that health effects can be caused by such minus-
cule amounts of heat." (Carnegie Mellon Rep., supra,
Rep., supra, at p. 3.)
-
c at p. 9; accord, OTA Rep., supra, at p. 1; DHS
nll This is how a microwave oven heats food. The
microwaves that it generates have a frequency of
2.45 billion Hz.
Because 60 Hz electric and magnetic fields are non-
ionizing and cannot cause significant tissue heating,
it was long believed they could not have any effect
on hunan health. Beginning in the mid-19701s, how-
ever, laboratory [*9081 [**677l C***151 studies on
cell cultures showed that these fields can affect cer-
tain activities of certain types of cells. Although
the results were suggestive, several serious problems
remained. First, there was no known mechanism to ex-
plain how these extremely weak fields could disturb
the much stronger fields arising naturally from hunan
cell activity. Second, disturbances at the cellular
level do not necessarily extrapolate to adverse ef-
fects on the organism as a whole: the organism can
tolerate some disturbances and compensate for others.
Biological effects, in short, are not always harmful.
Third, the dose-response relationship was unknown.
With most enviromntal hazards, e.g., toxic chemi-
cals, the higher the dose, the greater the response
or effect. But this did not appear to be true of
electric and magnetic fields: a number of the labora-
tory studies observed biological effects only in nar-
row ranges of field strength, frequency, or length of
exposure; above and below those ranges there were no
effects. Contrary to expectation, therefore, in such
cases weaker fields would not necessarily be %aferlI
than stronger fields. (OTA Rep., supra, at pp. 19-
20; Carnegie Mellon Rep., supra, at [***161 pp. 21-
23; DHS Rep., supra, at p. 6; EPA P&A, supra, at pp.
3-4.)
In addition, beginning in the Late 19701s the re-
sults of some epidemiological studies suggested a
statistically significant relationship between 60 Hz
electric and magnetic fields and certain forms of
cancer in certain populations. nl2 Again problems
arose, however, as the design, execution, and inter-
pretation of these studies were challenged on a nun-
ber of grounds: e.g., the population samples were
small and the types of cancer studied were relatively
rare; the field strengths were not measured directly
but were indirectly inferred from past proximity to
powerlines or from the job titles or descriptions;
and the studies did not control for exposure to other
known or potential carcinogens. (See generally, OTA
Rep., supra, at pp. 57-66; Carnegie Mellon Rep.,
supra, at pp. 16-18; DHS Rep., supra, at pp. 4-
5; EPA P&A, supra, at p. 2.)
n12 The primary studies investigated the incidence
of leukemia in children living in houses situated
near powerlines, and the incidence of leukemia and
other cancers in workers employed in occupations
assuned to be heavily exposed to 60 Hz fields,
e.g., electric utility and telephone workers and
electricians.
t***17l
In short, by the early 19801s the question whether
powerline electric and magnetic fields pose a danger
to health had become a matter of some public concern
and a source of growing controversy in the scientific
comnunity. The stage was set for intervention by
the commission; as will appear, that process began
in earnest in 1988. (Pt. IV, post.)
Before continuing this history, however, we make
two final preliminary points. First, it will be
helpful to understand the basic components of the
[*9091 electric power or system. Powerplant
generators deliver electric power to the system at
approximately 20 kV. B1Step-upa8 transformers increase
that voltage to higher levels for transmission pur-
poses, because the higher the voltage, the less power
lost in the wires. The power is then carried long
distances over transmission lines at voltages that
range between 50 kV and 765 kV. Transmission lines
terminate at substations, where %tep-down" trans-
fomrs reduce the voltage for distribution purposes.
- 13 Cal. 4th 893, *909; 920 P.2d 669, **677;
1996 Cal. LEXIS 4216, ***17; 55 Cal. Rptr. 2d 724
Page 8
The power is then carried shorter distances over var-
ious types of distribution lines, at various voltages ovens and ranges, refrigerators and freezers, as well
below 50 kV, to the ultimate users. By the time the as toasters, coffeemakers, food processors, and all
power is delivered [***181 to the residential user, other small kitchen appliances. "The most intense
its voltage has been reduced to the household level magnetic fields in the home are found near appli-
of 120/240 V. ances (particularly those with small motors or trans-
c- dryers, clothes washers and dryers, irons, electric
-
Second, it is important to stress that electric
and magnetic fields arise not only from powerlines but
8kO from the distribution and use of that power in-
side the home, office, or factory. One cannon source
building itself, which delivers the electricity to
the individual rooms in which it is used for light-
ing, heating, or operating appliances. Although the
magnetic fields of modern wall and ceiling wiring are
small, older wiring %an make significant contribu-
tions to the average magnetic field in homes.11 (OTA
looked, is the "ground currents" that [**6781 flow
through the water pipes, gas lines, or steel fram-
c
- of such fields is the wall and ceiling wiring of the
c
c Rep., supra, at p. 15.) Another source, often over-
- ing typically used for grounding the wiring system of
the building: "the magnetic fields that they produce
can contribute substantially to the overall magnetic
field in (Ibid.)
7
A third cmn source of electric and magnetic
fields is electric equipment and appliances. In
the factory, this means all machines and tools pow-
ered by electricity--in other words, L***191 virtu-
ally all industrial machinery in use today. In the
office, this means fluorescent light fixtures and all
printers, copiers, typewriters, and fax machines.
In the home, this means television sets, videocas-
ble lamps, vacuun cleaners, power tools, portable
heaters, electric blankets, electric shavers, hair
-
- .- such equipment as computers, video display terminals,
- sette recorders, compact disc players, radios, ta-
formers such as hairdryers and fluorescent light fix-
tures)." (OTA Rep., supra, at pp. 14-15.) Although
they are probably not the main source of the magnetic
background because their fields decrease rapidly with
distance end users generally spend only brief peri-
ods of time operating such appliances (with [*9101 the
exception of electric blankets and television sets),
they are ubiquitous in the modern home. n13
n13 Some examples vi11 illustrate both points.
The background magnetic field level in the typi-
cal home, away from appliances, ranges f ran 0.1
to 4 mG. (EPA PM, supra, at p. 4.) In aver-
age usage, the maxim magnetic field on the right
of way of a 115 kV transmission line is 30 mG; 50
feet away from the line, however, it has decreased
to 7 mG; and 100 feet away it is less than 2 mG,
and is therefore indistinguishable from background
levels. (Id. at p. 8.)
The strength of appliance magnetic fields may
initially be much higher, but it decreases even
more rapidly. The following chart lists the mag-
netic fields (in mG) of some cmn appliances,
measured at two distances from the source. In
each case the figure is given as a range, because
of such variations as the make and model of the
appliance and the power level at which it is oper-
ated.
Appliance
At 1.2 Inches
At 12 Inches
Electric Blanket 2 to 80
Clothes Washer 8 to 400
Television 25 to 500
Electric Range 60 to 2,000
Microwave Own 750 to 2,000
Fluorescent Lamp 400 to 4,000
Electric Shaver 150 to 15,000
Hair Dryer 60 to 20,000
(Adapted from 52 Cal.P.U.C.2d 1, 12 (IS%).)
not applicable
2 to 30
0.4 to 20
4 to 40
40 to ao
5 to 20
not applicable
1 to 70
Page 9
13 Cat. 4th 893, *910; 920 P.2d 669, **678;
1596 Cat. LEXIS 4216, ***19; 55 Cal. Rptr. 2d 724
c***203
To sun up, "There are electric and magnetic fields
wherever there is electric power.'# (OTA Rep., supra,
at p. 1.) In the typical home, fields of various
strengths arise from the wall and ceiling wiring, the
ground currents, and all electric machinery, equip-
ment, and appliances: "Keeping fields out of the home
would mean keeping any electricity from coming into or
being used in the home.') (EPA Q&A, supra, at p. 16,
italics added.) And because the sources of electric
and magnetic fields inside the home are so nunerous,
IWccupants of the average household are probably ex-
posed to higher fields from their house wiring and
appliances than from the outside wiring," i.e., from
powerlines. (Ibid.)
With this background in mind, we turn to the facts
of the case at bar.
I
On Dechr 16, 1993, plaintiffs Martin and Joyce
Covalt filed the present action for damages and in-
junctive relief against San Diego Gas and Electric
Company (SDG&E). The complaint alleges that plain-
tiffs own and occupy a single-family residence in San
Clemente, California, and SDG&E P9111 owns an ease-
ment on the land adjacent to their property. The
complaint further alleges that SDG&E runs electric
C***211 currents through powerlines on that easement
which are "in very close proximity to and placed upon
plaintiffs' property, and because of this have con-
tinuously omitted [sic] high and unreasonably danger-
ous levels of electromagnetic radiation onto plain-
a third 12 kV distribution circuit (requiring 4 wires)
was added in response to increased customer demand f.or
power; to accomnodate the third circuit, the single
poles were replaced by double poles standing 12 feet
apart and joined by longer crossbars. Exhibits at-
tached to the SDG&E letter show that before July 1990
the crossbars extended 5 and 6 feet from the center
line of the pole towards plaintiffs' property, and af-
ter July 1990 the crossbars extended 8.5 feet from the
center line towards plaintiffs' property. Thus the
effect of the reconfiguration was to move portions of
the 3 circuits either 2.5 feet or 3.5 feet closer to
plaintiffs' house. The closest point of plaintiffs'
house, however, was 68 feet from the center line of
either pole configuration. The SDG&E Letter esti-
mated that the average magnetic field level at that
point was 5 tnG before 1990 and was anticipated to be
approximately 8.9 mG in 1993, for an average increase
of approximately 3.9 M. Plaintiffs furnish no fig-
ures for the electric field levels at that point.
In the same points and authorities plaintiffs
state that they purchased the house in question in
1990, but do not specify when in that year they did
1***233 so; they also state that they have since va-
cated the house and the property "has been foreclosed
upon by the mortgagor.l# n14
n14 Plaintiffs do not allege the date of the fore-
closure. We may infer that it took place before
September 30, 1994, the date of the points and au-
thorities in which they disclosed this fact.
tiffs' property." The complaint also alleges that in
February 1990 SDG&E 18substantially increased the nun-
ber of Powerlines housed in the easement adjacent to The remaining factual altegations of the complaint
plaintiffs' property. Such increase in Powerlines do not pertain to the case at bar. n15
C**6791 dramatically increased the dangerous levels
of electromagnetic radiation flowing onto plaintiffs'
property."
1*9121
The conplaint does not specify the voltage of the
powerlines in question, nor their nunber, configu-
ration, and electric and magnetic field levels be-
fore and after the 1990 upgrading. In their mem-
orandun of points and authorities filed in support
of their return, however, plaintiffs state additional
facts taken from a letter sent to them by SDGLE on
January 5, 1993, to wit, that prior to July 1990
the SDGBE easement adjacent to their property, dat-
ing from 1928, carried two 12 kv distribution circuits
(requiring a total of 7 wires) on crossbars mounted on
single poles; between February and July [***223 1990
n15 Thus the complaint alleges that a certain
Isplaintiff McCartin" was told by SDG&E that "there
uas [sic] 'no adverse health affects [sic] from
such radiation"; that after investigating the mat-
ter ''plaintiff McCartin8' believed otherwise; and
that laplaintiff McCartinIl then requested SDG&E to
relocate its powerlines in order to Wecrease the
risk of bodily injury" from such radiation, but
SDG&E refused to do so. McCartin, however, is
not in fact a plaintiff in the present action;
rather, he was a plaintiff in a prior action filed
by neighbors of the present plaintiffs (Covalts)
against the same defendant (SDG&E). The McCartin
Page 10
13 Cal. 4th 893, *912; 920 P.2d 669, **679;
1996 Cal. LEXIS 4216, ***23; 55 Cal. Rptr. 2d 724
"
action is not before us; it terminated in a judg- be reviewed on an appeal from the final judgment (Code
rnent for SDG&E on June 17, 1994, and an appeal Civ. Proc., 0 904.1, 906), and that such an ap-
was dismissed by stipulation. The erroneous al- peal is normally presuned to be an adequate remedy
legation, nevertheless, draws our attention to the at law, thus barring imnediate review by extraordi-
fact that the present complaint is a verbatim copy nary writ (id., 0 1086, 1103). The Court of Appeal
of the complaint in the McCartin action, to the then held, however, that the case at bar falls within
point that it reproduces each of the latter's mis- the exception to this rule that has been recognized
takes of spelling and syntax, several of which are when the demurrer raises an important I***261 ques-
noted herein. tion of subject-matter jurisdiction; in that event,
courts have held it proper to review the order over-
P**241 ruling the demurrer by means of extraordinary writ.
(See, e.g., County of Sacramento v. Superior Court
(1972) 8 Cal. 3d 479, 481 1105 Cal. Rptr. 374,
503 P.2d 13821 [prohibition]; State of California v.
Superior Court (1984) 150 Cal. App. 3d 848, 853,
fn. 4 I197 Cal. Rptr. 9141 [mandate]; County Of
Santa Barbara v. Superior Court (1971) 15 Cat. App.
3d 751, 754-755 193 Cal. Rptr. 4061 Iprohibitionl.)
The parties do not question this holding. n17
The conplaint first alleges five causes of ac-
tion for personal injury, seeking to recover damages
for Itmedical monitoringmt (count 11, intentional in-
fliction of emotional distress (count 2), negligent
infliction of emotional distress (count 3), strict
product liability (count 41, and negligent product
liability (count 5). The complaint next alleges
three causes of action for property damage, i.e.,
trespass (count 6), nuisance (count 7), and inverse
condemnation (count 8). n16 Lastly, the conplaint
I alleges a cause of action for injunctive relief, seek-
ing an order requiring SDG&E to Ildiscontinue the ad-
missions Isicl of electromagnetic radiation onto or
adjacent to plaintiffs' property."
..
c
n16 The conplaint mistakenly t?unbers both counts 7
and 8 as ltSeventh.al
c
SDG&E demurred to the complaint on the ground that
the court lacks subject-matter jurisdiction (Code
Civ. Proc., 5 430.10, SUM. (a)) because a judgment
for plaintiffs on any count would hinder or frustrate
a general regulatory policy of the comnission C***251
and hence the action is barred by section 1759 as con-
Cal. 3d 1, and related cases. SOGBE also demurred on
the ground that on each of the counts the complaint
" failed to state facts [**Mol sufficient to consti-
tute a cause of action. (Code Civ. Proc., 0 430.10,
SUM. (e).) The demurrer was overruled.
-
c strued in Waters v. Pacific Telephone Co., supra, 12
SDGBE thereupon filed a petition for writ of pro-
hibition or mandate in the Court of Appeal, seeking an
order directing the trial court to sustain the demur-
rer and dismiss the complaint. The Court of Appeal
granted an alternative writ and stayed all proceed-
i ngs .
-
In its ensuing decision the Court of Appeal cor-
rectly observed at the outset that an order overruling
a demurrer is not directly appealable but may [*9131
c
n17 The Court of Appeal also relied on cases hold-
ing in other contexts that mandate may lie to re-
view a ruling on the pleadings when i t wi 11 pre-
vent Vteedless and expensive trial and reversalto
( Taylor v. Superior Court (1979) 24 Cal. 3d
890, 894 [I57 Cal. Rptr. 693, 598 P.2d 8541) and
when the issue presented is loof widespread inter-
est" ( Brandt v. Superior Court (1985) 37 Cat.
3d 813, 816 1210 Cal. Rptr. 211, 693 P.2d 7961).
Because the parties do not question the Court of
Appeal's reliance on these cases, we need not de-
termine whether their holdings apply, as here, to
review of an order overruling a demurrer. The
cases cited in the text are directly in point and
support the use of the extraordinary writ proce-
dure in the case at bar.
c***271
Turning to the merits, the Court of Appeal first
addressed the five personal injury causes of action
of the complaint. The court observed that in these
causes of action plaintiffs do not allege that they
have been physically harmed by the electric and mag-
netic fields arising from SDG&EIs powerlines, but
only that they have experienced emotional distress
because they fear that in the future they may contract
cancer or other serious disease as a result of their
exposure to such fields. In these circumstances the
Court of Appeal relied on the holding of this court
in Potter v. Firestone Tire & Rubber Co. (1993)
6 Cal. 4th 965, 997 C25 Cal. Rptr. 2d 550, 863
c
Page 11
13 Cal. 4th 893, *913; 920 P.2d 669, **680;
1996 Cal. LEXlS 4216, ***27; 55 Cal. Rptr. 2d 724
P.2d 7951 (hereafter Potter) that "damages for fear of
cancer may be recovered only if the plaintiff pleads
and proves that (1) as a result of the defendant's
negligent breach of a duty owed to the plaintiff,
the plaintiff is exposed to a toxic substance which
threatens cancer; and (2) the plaintiff's fear stems
from a knowledge, corroborated by reliable medical or
scientific opinion, that is more likely than not that
the plaintiff will develop the cancer in the future
due to the toxic exposure.Im (First italics [***283 in
original, second italics added.)
Applying this rule, the Court of Appeal held that
plaintiffs failed to plead any facts to meet the sec-
ond prong of the Potter test, i .e., that Veliable
medical or scientific opinionai corroborates their be-
lief that it is probable that 1*9143 they will in
fact develop cancer in the future from exposure to
the electric and magnetic fields arising from SDG&Eas
powerlines. For this reason the court held that the
complaint failed to state a cause of action on the
personal injury counts. n18
n18 The Court of Appeal also noted that plaintiffs'
first cause of action for %edical monitoring" rmst
fall in any event because it is not a separate
tort but simply an item of damages that cannot be
awarded until liability is established under a tra-
ditional tort theory. (Potter, supra, 6 Cal. 4th
at pp. 1006-1007.)
The Court of Appeal then stressed that throughout
their briefs plaintiffs concede they are no longer
asserting that electric and magnetic fields are in
fact [***293 harmful: in their return, for exanple,
plaintiffs state that their claims "do not rest upon
the assertion that EMF [electric and magnetic fields3
is [sicl a [**all scientifically proven health haz-
ard," and in their acconpanying points and authori-
ties plaintiffs acknowledge they "do not claim that
medical science has proven that EMF cause cancer and
are thus hazardous to hunan beings." Rather, as will
appear, plaintiffs contend primarily that a public
fear of such fields--regardless of whether or not that
fear is reasonable or scientifically supported--has
diminished the value of their real property. For this
reason the Court of Appeal held that plaintiffs can-
not amend their complaint to sufficiently plead their
causes of action for personal injury; as to those
causes of action, therefore, the demurrer should have
been sustained without leave to amend.
The Court of Appeal then addressed the three prop-
erty damage causes of action of the complaint. The
court began by recognizing the broad powers granted
to the camnission by Constitution and statute. From
section 1759 and Waters v. Pacific Telephone Co.,
supra, 12 Cat. 3d 1, the court drew the rule [***301
that if the Covalt action would conflict with a gen-
eral regulatory policy of the comnission regarding
powerline electric and magnetic fields, the superior
court would lack jurisdiction to proceed. The Court
of Appeal then identified such a comnission policy,
expressed in several of its rulings and culminating
in a decision on the specific question issued in 1993.
Applying the Waters rule, the court conckuded that a
judgment on any of the three property damage causes
of action would hinder and frustrate that comnission
policy. The court therefore issued a writ of mandate
directing the trial court to vacate its order over-
ruling the demurrer and to enter a new order sustain-
ing the demurrer without leave to amend. Ue granted
review .
I1
"The comnission is a state agency of constitu-
tional origin with far-reaching duties, functions
and powers. (Cal. Const., art. XII, 5 1-
6.) The [*9151 Constitution confers broad author-
ity on the comnission to regulate utilities, in-
cluding the power to fix rates, establish rules,
hold various types of hearings, award reparation,
and establish its own procedures. (Id., 5 2, 4,
6.) The comnission's powers, however, are not re-
stricted to those [***311 expressly mentioned in the
Constitution: 'The Legislature has plenary power,
unlimited by the other provisions of this constitu-
tion but consistent with this article, to confer ad-
ditional authority and jurisdiction upon the comnis-
sion . . . .I (Cal. Const., art. XII, 5
5.)" ( Consuners Lobby Against Monopolies v. Public
Utilities Com. (1979) 25 Cal. 3d 891, 905 [160 Cal.
Rptr. 124, 603 P.2d 411, italics added.)
Pursuant to this constitutional provision the
Legislature enacted, inter alia, the Public Utilities
Act. (5 201 et seq.) That law vests the comnission
with broad authority to %upervise and regulate ev-
ery public utility in the State" (5 701) and grants
the comnission numerous specific powers for the pur-
pose. Again, however, the comnission's powers are
not limited to those expressly conferred on it: the
Legislature further authorized the comnission to "do
all things, whether specifically designated in [the
Public Utilities Act3 or in addition thereto, which
are necessary and convenient" in the exercise of its
13 Cal. 4th 893, *915; 920 P.2d 669, **681;
1996 Cal. LEXIS 4216, ***31; 55 Cat. Rptr. 2d 724
Page 12
jurisdiction over public utilities. (Ibid., italics
added.) Accordingly, "The comnissionls authority has
been liberally construedll (Consuners [***32] Lobby
Against Monopolies v. Public Utilities Com., supra,
25 Cal. 3d 891, 905, citing cases), and includes not
only administrative but also legislative and judicial
powers ( People v. Western Air Lines, Inc. (1954)
42 Cat. 2d 621, 630 t268 P.2d 7231 1.
The Constitution also confers plenary power on the
Legislature to laestablish the manner and scope of re-
view of comnission action in a court of record" (Cal.
Const., art. XII, 0 5). Pursuant to this consti-
tutional provision the Legislature enacted article 3
of chapter 9 of the Public Utilities Act, entitled
08Judiciel Review." (5 1756 et seq.) That article
prescribes a method of judicial review that is nar-
row in both %anner and sc0pe.1~ It is narrow in man-
ner because review of a comnission decision may be
obtained only by filing a petition for writ of re-
view directly in this court--bypassing the Court of
Appeal--uithin 30 days after the comnission denies
rehearing or issues a decision on rehearing. [**682]
(§ 1756, 1758.) And it is narrow in scope because
such review is limited to determining the legal ques-
tion Whether the comnission has regularly pursued
its authority" (8 1757); except when a federal con-
stitutional [***331 challenge is raised (§ 1760), the
comnissionls findings and conclusions on questions
of fact--including ultimate facts and determinations
of reasonableness and discrimination--%hal 1 be final
ad shall not be subject to reviewa1 (5 1757). [*916]
Having thus vested this court with limited juris-
diction to review comnission actions, the Legislature
then made it clear in section 1759 of the Public
Utilities Act that no other court has jurisdiction ei-
ther to review or suspend the conmission's decisions
or to enjoin or otherwise ninterferell uith the cwrmis-
sionls performance of its duties: section 1759 de-
clares in relevant part that "No court of this State,
except the Supreme Court to the extent specified in
this article, shall have jurisdiction to review, re-
verse, correct, or annul any order or decision of the
comnission or to suspend or delay the execution or op-
eration thereof, or to enjoin, restrain, or interfere
with the cmission in the performance of its official
duties, . . .Is (Italics added.)
In the case at bar we are required once again
to reconcile the foregoing provision of section 1759
with another provision of the Public Utilities Act,
section 2106. The Legislature [***341 enacted sec-
tion 2106 as part of a different chapter of the act,
chapter 11. (5 2100 et seq.) That chapter, enti-
tled Wiolations,la prescribes a wide variety of reme-
dies designed to redress violations of comnission de-
cisions comnitted by public utilities. All but one
of these are public remedies prosecuted in the name
of the people of the state by comnission counsel or
by the Attorney General or the appropriate district
attorney. (Q 2101.) They include: orders to com-
mon carriers to collect undercharges or unlawful re-
bates (§ 2100), actions for mandamus or injunction
(5 2102-2103), actions to recover penalties (0 2104,
2107, 2111, 2115), imposition by the comnission of
fines with interest (5 2107.5), criminal prosecutions
(4 2110, 2112, 2114, 2119). and contempt proceedings
(0 2113).
The sole private remedy authorized by chapter 11
is found in section 2106. That section supplements
the foregoing public remedies by authorizing the tra-
ditional private remedy of an action for damages
brought by the injured party in superior or municipal
court against any public utility that does any act
prohibited--or omits to do any act required--"by the
Constitution, any law of this State, or [***351 any
order or decision of the comnission" (0 2106). The
supplemental nature of this remedy is further shown by
the fact that the statute declares that no recovery of
such private damages %hall in any manner affect a re-
covery by the State of the penalties provided in this
part or the exercise by the comnission of its power
to punish for contempt.Io (Ibid.) n19
n19 Section 2106 provides in full: ##Any public
utility which does, causes to be done, or per-
mits any act, matter, or thing prohibited or de-
clared unlawful, or whiih omits to do any act, mat-
ter, or thing required to be done, either by the
Constitution, any Law of this State, or any order
or decision of the comnission, shall be liable to
the persons or corporations affected thereby for
all loss, damages, or injury caused thereby or re-
sulting therefrom. If the court finds that the
act or mission was uilful, it may, in addition to
the actual damages, award exemplary damages. An
action to recover for such loss, damage, or injury
may be brought in any court of competent jurisdic-
tion by any corporation or person.
"No recovery as provided in this section shall
in any manner affect a recovery by the State of
the penalties provided in this part or the exer-
cise by the comnission of its power to punish for
contempt."
Page 13
13 Cal. 4th 893, *916; 920 P.2d 669, **682;
1996 Cal. LEXlS 4216, **36; 55 Cal. Rptr. 2d 724
"
c.
1***363
When sections 1759 and 2106 are thus seen in their
respective statutory contexts, it is easier to under-
stand how this court reconciled the potential [*9173
conflict between them in the leading case of Waters
v. Pacific Telephone Co., supra, 12 Cal. 3d 1
(hereafter Waters). There the plaintiff, a real es-
tate broker, filed an action for damages in superior
court against the defendant Pacific Telephone Campany
(Pacific) pursuant to section 2106. The plaintiff
alleged that she had experienced a nunber of inter-
ruptions and failures of telephone service caused by
a variety of negligent acts on the part of Pacific,
including improper installation and removal of tele-
phones, inconpleted calls, and inadequate mainte-
nance. Pacific's tariff, approved by t**6831 the
comnission, limited its liability for interruptions
and failures of service caused by acts of ordinary
negligence to a credit allowance not exceeding the
customer's total fixed charges for the billing pe-
riod in question. Pacific moved for partial sunnary
judgment limiting its liability to that amount; the
trial court granted the motion, and when the plain-
tiff waived her right to recover that amount, [***373
the court entered a nonsuit for Pacific.
This court affirmed the judgment, undertaking for
the first time to reconcile sections 1759 and 2106.
The court began by stressing the broad supervisory
and regulatory pouers of the comnission. (Waters,
supra, 12 Cal. 3d 1, 6.) It then observed that the
comnission was authorized by law to require utilities
to file tariffs and to regulate their contents. The
court next emphasized that several years earlier the
comnission had conducted "an extensive investigation
of the general question of [the1 limitation of lia-
bility by telephone utilities, and in its subsequent
decision the comnission made it clear that the credit
allowance device has always been considered to be a
rule limiting the utility's liability.84 ( Id. at p.
8.) In that decision the comnission determined "as
a matter of policyf8 (ibid.) that telephone utilities
should be at least partially liable for gross negli-
gence but that the rules limiting liability for or-
dinary negligence in respect to service were reason-
able. Accordingly, the comnission required all tele-
phone utilities to incorporate into their tariffs a
provision limiting their liability for service inter-
ruption [***38J to specified credit allowances, and
the comnission took such limitations into account in
exercising its ratemaking functions. ( Id. at pp.
8-9.)
Addressing the question of statutory construction,
this court declared the primacy of section 1759 and
the correspondingly limited role of section 2106.
The court held that loin order to resolve the poten-
tial conflict betueen sections 1759 and 2106, the lat-
ter section must be construed as limited to P9181
those situations in which an award of damages would
not hinder or frustrate the comnissionls declared su-
pervisory and regulatory policies." (Waters, supra,
12 Cal. 3d at p. 4, italics added.) The court
reasoned ( id. at p. 11) that IOPlaintiff main-
tains that section 2106, in permitting damage actions
against utilities for their unlawful acts, authorizes
the instant action in spite of the language and policy
underlying section 1759. Yet the two sections must be
construed in a manner which harmonizes their language
and avoids unnecessary conflict. Section 2106 rea-
sonably may be interpreted as authorizing only those
actions which would not -interfere with or obstruct the
comnission in carrying out its own policies.I8 [***391
Under the Waters rule, accordingly, an action for
damages against a public utility pursuant to section
2106 is barred by section 1759 not only when an award
of damages would directly contravene a specific order
or decision of the comnission, i.e., when it uould
"reverse, correct, or annul18 that order or decision,
but also when an award of damages uould simply have
the effect of undermining a general supervisory or
regulatory policy of the comnission, i.e., when it
uould 18hinder" or "frustrate" or @'interfere with" or
a10bstruct8b that policy. n20
n20 Other courts have used other synonyms to ex-
press the same idea: "The PUC has exclusive ju-
risdiction over the regulation and control of util-
ities, and once it has assuned jurisdiction, it
cannot be hampered, interfered with, or second-
guessed by a concurrent superior cwrt action ad-
dressing the same issue.18 ( Barnett v. Delta
Lines, Inc. (1982) 137 Cal. App. 3d 674, 681
1187 Cal. Rptr. 2191, italics added.) Still
other synonyms could be invoked, e.g., impair, im-
pede, inhibit, or encumber. The point is clear.
[***403
This court applied the foregoing rule to affirm the
judgment of nonsuit in Waters, supra, 12 Cal. 3d
1, despite the fact that the plaintiffls action for
damages for telephone service interruptions did not
directly contravene any order or decision of the com-
mission. Rather, the court reasoned that "It stands
undisputed that the comnission has approved a general
13 Cal. 4th 893, *918; 920 P.2d 669, **683;
1996 Cal. LEXIS 4216, ***40; 55 Cal. Rptr. 2d 724
Page 14
policy of limiting the liability of telephone utili-
ties for ordinary negligence to a specified credit al-
lowance, and has relied [**&I upon the validity and
effect of that policy in exercising its rate-making
functions. [Citation.] It also appears clear that
to entertain suits such as plaintiff's action herein
and authorize a substantial recovery from Pacific
uould thwart the foregoing policy. That being so,
the express language of section 1759 tcitationl bars
plaintiff's action." (12 Cal. 3d at p. 10, italics
added. 1
The Waters rule may be further understood by con-
sidering examples of how it has been applied by wr
Courts of Appeal. Uhen the bar raised against a pri-
vate damages action has been a ruling of the comnis-
sion on a single matter such as its approval of a tar-
iff or a merger, C***411 the courts have t*9191 tended
to hold that the action would not "hindertm a "policy"
of the comnission within the meaning of Waters and
hence may proceed. But when the relief sought wwld
have interfered with a broad and continuing super-
visory or regulatory program of the commission, the
courts have found such a hindrance and barred the ac-
tion under section 1759. Two pairs of Court of Appeal
decisions are illustrative.
First, in Cellular Plus, Inc. v. Superior Court
(1993) 14 Cal. App. 4th 1224 C18 Cal. Rptr. 2d
3081, a consuner of cellular telephone services filed
an action seeking damages for price fixing in vio-
lation of the Cartwright Act (Bus. & Prof. Code,
§ 16700 et seq.) against two cellular telephone
service conpenies. The comnission had previously
granted both defendant companies certificates of con-
venience and necessity authorizing them to operate
in the geographic area in question, and had approved
the rates they proposed to charge. The defendant
companies demurred on the ground that the comnission
has sole jurisdiction over rates charged for cellu-
lar telephone service. The trial court sustained the
demurrers without leave to amend, but the Court of
Appeal [***421 granted a writ vacating the order.
In the Court of Appeal the defendant companies con-
ceded that the comnission's jurisdiction over rates
does not imnunize them from a Cartwright Act claim,
but argued that such a claim must first be brought be-
fore the comnission under the "primary jurisdiction"
doctrine. (See Farmers Ins. Exchange v. Superior
Court (1992) 2 Cal. 4th 377 E6 Cal. Rptr. 2d
487, 826 P.2d 7303.) In rejecting that contention
the Court of Appeal stressed that the comnission had
determined only that the proposed rates of the de-
fendant companies were reasonable, while launder the
Cartwright Act a court does not look at the economic
reasonableness of the prices. Rather, a court looks
at whether the prices were in fact artificiatly main-
tained at a uniform level, whether 'reasonable' or
not.'' ( Cellular Plus, lnc. v. Superior Court,
supra, 14 Cal. App. 4th at p. 1246.) The court
then applied the rule of Uaters, supra, 12 Cat. 3d
1, 4, reasoning that We cannot conceive how a price
fixing claim under the Cartwright Act could 'hinder or
frustrate' the WC's supervisory or regulatory poli-
cies. The only apparent policy of the PUC that could
be affected is its C***433 regulation of rates charged
by cellular telephone service providers. However,
[plaintiff] does not dispute that the PUC has juris-
diction over rates, nor does it seek any relief re-
quiring the PUC to change any rates it has approved."
( Cellular Plus, Inc. v. Superior Court, supra, 14
Cal. App. 4th at p. 1246.)
Again, in Stepak v. American Tel. & Tel. Co.
(1986) 186 Cal. App. 3d 633 t231 Cat. Rptr.
373, a telephone utility (PT&T) applied to the com-
mission for [*9203 approval of its proposed merger
with another utility (see 0 854). A minority share-
holder of PT&T filed a class action against PT&T el-
leging breaches of fiduciary duty in connection with
the merger. The comnission thereafter approved the
merger. Citing that approval, PT&T successfully
moved to dismiss the shareholder action on the ground
that section 1759 deprived the superior court of ju-
risdiction. The Court of Appeal reversed the judg-
ment under Waters, reasoning that: We are aware
of no 'declared supervisory and regulatory policies'
( Uaters v. Pacific Telephone Co., supra, 12 Cat.
3d 1, 4) ever formulated or relied on by the com-
mission on the subject of safeguarding minority in-
vestor interests. [***441 Applying the Waters test
of jurisdiction, we cannot conceive of how the su-
perior court's award of [**a51 damages or other re-
lief to wronged minority shareholders would 'hinder
or frustrate' (ibid.) declared comnission policy.
Appellant's class action suit is therefore authorized
under section 2106." ( Stepak v. American Tel. &
Tel. Co., supra, 186 Cat. App. 3d 633, 640-641.)
By contrast, in Brian T. v. Pacific Bell (1989)
210 Cal. App. 3d 894 t258 Cal. Rptr. 7071, the
superior court action would have interfered with a
broad and continuing policy of the comnission, and
hence was barred by section 1759. In the early to
mid-1980's telephone utilities began offering "in-
formation access services" from nunbers bearing the
976 prefix (hereafter 976 services). Concerned by
the use of 976 services to disseminate sexually ex-
plicit material to minors, Congress prohibited the
Page 15
13 Cal. 4th 893, *920; 920 P.2d 669, **685;
1996 Cal. LEXIS 4216, ***44; 55 Cal. Rptr. 2d 724
dissemination of such material generally but pro-
vided for a defense if access were restricted to
adults. The Federal Comnunications Comnission (FCC)
thereafter considered three methods of achieving such
a restriction: (1) blocking devices on the cus-
tomer's premises, (2) blocking systems [***451 at the
utility's central station, and (3) Ikustomer access
codes" issued on request to adult subscribers. The
FCC ultimately promulgated regulations adopting the
third of these methods.
In California the comnission instituted an inves-
tigation into the same problem, acting both on its
own motion and in response to a directive from the
Legislature. The investigation resulted first in an
interim decision adopted in January 1987, in which the
comnission expressed general approval of the central-
station method of blocking sexually explicit mes-
sages, .but ordered a delay in its implementation pend-
ing further study of the other two alternatives. The
comnission then conducted exhaustive hearings on the
latter, and later in 1987 reaffirmed its decision in
favor of central-station blocking.
In June 1987 a minor listened to sexually explicit
messages on a 976 service and then engaged in unlawful
sexual contacts with another minor. [*9211 The par-
ents of both minors filed an action against the tele-
phone company (Pacific Bell) and the businesses that
furnished the messages, seeking damages and a prelim-
inary injunction to compel Pacific Bell, inter alia,
to make available to its customers t***461 screening
or blocking devices that would deny minors access to
sexually explicit material.
The trial court denied the request for a prelim-
inary injunction and granted Pacific Bell's motion
to dismiss the action for lack of jurisdiction. The
Court of Appeal affirmed. Addressing the request for
an injunction, the court quoted the Uaters rule and
held that the requested relief would call in effect
for comnission action modifying its previous deci-
sions regulating the 976 services. Such interfer-
ence with a comnission policy was prohibited by sec-
tion 1759. ( Brian T. v. Pacific Bell, supra, 210
Cal. App. M 894, 900-901.)
The Court of Appeal further held that the trial
court lacked jurisdiction to enjoin, in the alterna-
tive, violations of Penal Code section 313.1, sub-
division (a) (dissemination of harmful matter to mi-
nors), reasoning that such relief would amount to a
disguised means of compelling Pacific Bell to adopt
a particular blocking system--i.e., customer access
codes--that the comnission had considered but thus
far had rejected in developing its policy regulat-
ing access by minors to 976 services. ( Brian T.
v. Pacific Bell, supra, 210 Cal. App. 3d at p.
901. ) [***47l
Finally, the Court of Appeal also held that Pacific
Bell could not be liable in damages for failing to
disconnect subscribers who used the 976 services to
disseminate sexually explicit messages, because at
the time of the acts alleged in the complaint that
remedy had been prohibited by the January 1987 de-
cision of the comnission, which approved instead the
remedy of blocking such messages on customer request.
( Brian T. v. Pacific Bell, supra, 210 Cal. App.
3d at pp. 908-909.)
Again, in Schell v. Southern Cal. Edison Co.
(1988) 204 Cal. App. 3d 1039 1251 Cat. Rptr.
667l, the superior court action would likewise have
interfered with an ongoing comnission inquiry into a
matter of regulatory policy. Section 739 directs the
comnission, in exercising its ratemaking functions,
to determine a %aseline quantity" of gas and elec-
tricity necessary to supply Ita significant portion
of [**&I the reasonable energy needs of the av-
erage residential customerlo (id., subd. (a)), and
to require utilities to establish "baseline rates"
for supplying these baseline quantities to residen-
tial customers (id., SUM. ,(c)(l)). Section 739.5
directs the comnission to require C***481 that a
%aster meterll customer who furnishes gas or elec-
tricity through submeters to tenants of 'la mobile-
home park, apartment building, or similar residential
[*9221 complex" must charge each tenant the same res-
idential rate--including the baseline rate--as would
apply if the tenant were receiving the service di-
rectly from the utility. (Id., subd. (a).)
Pursuant to these mandates, the comnission desig-
nated baseline quantities of gas and electricity by
an interim decision in 1976. In that decision the
comnission also determined that the term "residen-
tial customer" in section 739 included single-family
houses, apartments, condominim, and mobi lehomes,
but excluded transient trailerparks, hotels and mo-
tels, and other places of temporary occupancy such
as hospitals and college dormitories. The cmis-
sion took no position on recreational vehicle parks
(hereafter RV parks).
As required by the comnission, gas and electric
utilities undertook to establish rate schedules for
master-metered facilities that incorporated the base-
line rates structure. One such utility, Southern
California Edison Company (Edison), adopted two res-
idential rate schedules for such facilities: a gen-
eral [***491 schedule for multifamily accomnodations
Page 16
13 Cal. 4th 893, *922; 920 P.2d 669, **686;
1996 Cat. LEXlS 4216, ***49; 55 Cal. Rptr. 2d 724
and a special schedule for mobilehome parks only.
In September 1986 the owner of an RV park filed
an action against Edison, alleging that his RV park
was also a master-metered park with separate subne-
ters for each tenant within the meaning of section
739.5, and hence was also entitled to residential
baseline allocations under section 739. For this al-
leged discrimination the complaint sought damages un-
der section.2106. By an amendment to the complaint
the plaintiff added a cause of action for declaratory
relief, asking for a ruling whether a person using a
recreational vehicle as his residence was a residen-
tial customer under section 739 and therefore enti-
tled to baseline allocations. Edison demurred on the
grounds, inter alia, that the comnission had exclu-
sive jurisdiction and the issues were then pending in
proceedings before the comnission. The trial court
sustained the demurrer without leave to amend, and the
Court of Appeal affirmed the judgment of dismissal.
The Court of Appeal took judicial notice of three
proceedings pending before the cmission. In two,
owners of other RV parks had asked' the comnission to
order Edison to supply electric P**501 service to
them under the special rate schedule for mobilehome
parks, while a mobilehome association sought an or-
der that a new rate schedule be designed for RV parks
only. The Court of Appeal stressed that the two pro-
ceedings were awaiting decision by the cmission.
The third comnission proceeding was a recently de-
cided, but not yet final, general rate case brought
by Edison. In that decision the comnission explic-
itly refused to apply the special rate schedule for
mobilehome parks to RV [*9231 parks. The comnission
also concluded that it did not have sufficient evi-
dence to determine whether a new rate schedule should
be designed for RV parks only, and therefore ordered
Edison to conduct a study of the need for and feasi-
bility of such a schedule, including the developnent
of objective standards for judging and monitoring the
status of RV park tenants.
Although the plaintiff contended the superior
court had jurisdiction under section 2106 because
Edison's refusal to give him the benefit of the mo-
bilehome park rate supported a claim for damages, the
Court of Appeal observed that the fundamental issue
in the case was the appropriate rate schedule for RV
parks. The court then 1***513 reasoned that *#The de-
cision as to whether or not master-metered residen-
tial recreational vehicle parks should be charged at
the same rate as master-metered mobilehome parks, or
at another domestic or comnercial rate, is clearly
within the exclusive purview of the PUC as part of
its continuing jurisdiction over rate making and rate
regulation in provision of baseline service to res-
idential customers of the electric and gas corpo-
rations." ( Schell v. Southern Cal. Edison Co.,
supra, 204 Cal . App. 3d 1039, 1046. ) [**6871
The court concluded that because it was still an open
question in the comnission whether the special mo-
bilehome rate schedule applied to RV parks, "for the
superior court to undertake to determine this issue
would be a usurpation of the PUC's authority." (Ibid.,
fn. omitted.)
In addition, the Court of Appeal emphasized that
the question of the proper rate schedule for RV parks
was pending in the three comnission proceedings dis-
cussed above. Relying on the rule of Uaters, supra,
12 Cal. 3d 1, the court held that so long as the
matter was before the comnission as part of its on-
going inquiry into RV park rate schedules, the supe-
rior [***521 court had no jurisdiction over the mat-
ter pursuant to section 2106. ( Schell v. Southern
Cal. Edison Co., supra, 204 Cat. App. 3d at pp.
1046- 1047. )
We apply the rule of Waters and its progeny to the
case at bar.
I11
The first question is whether the comnission has
the authority to adopt a policy on (1) whether elec-
tric and magnetic fields arising from the powerlines
of regulated utilities are a public health risk and
(2) what action, if any, the utilities should take to
minimize that risk. Ue conclude that it does.
First, the comnission has broad authority to de-
termine whether the service or equipment of any pub-
lic utility poses any danger to the health or safety
of the public, and if so, to prescribe corrective
measures and order them into [*9243 effect. Every
public utility is required to furnish and maintain
such Yservice, instrunentalities, equipment, and fa-
cilities . . . as are necessary to promote the
safety, health, comfort, and convenience of its pa-
trons, employees, and the public.n1 (§ 451, italics
added.) The Legislature has vested the comnission
with both general and specific powers to ensure that
public utilities conply with that mandate. [***533
As noted above, the Legislature has declared that
the comnission %my do all things" necessary and con-
venient to supervising and regulating public utili-
ties in this state. (§ 701.) In particular, the
comnission has comprehensive jurisdiction over ques-
tions of public health and safety arising from utility
operations. Thus the comnission is generally autho-
Page 17
13 Cal . 4th 893, *924; 920 P.2d 669, **687;
1996 Cal. LEXIS 4216, ***53; 55 Cal. Rptr. 2d 724
rized to require every public utility to %onstruct,
maintain, and operate" its Implant, system, equipnent,
[or] apparatusn1 in such manner as to "safeguard the
health and safety of its employees, . . . cus-
tomers, and the public . . . .It (0 768.) To this
end, the comnission is further empowered to prescribe
the installation and use of %ppropriate safety or
other devices,@I and to require every utility to do
"any other act which the health or safety of its em-
ployees, . . . customers, or the public may de-
mand.ml (Ibid., italics added.)
More specifically, the Public Utilities Act pro-
vides in relevant part that whenever the comnission
finds that the %quipnent, appliances, facilities, or
service of any pub1 ic uti 1 i ty, or the methods of manu-
facture, distribution, transmission, storage, or sup-
ply employed by it" are 81unsafe,1m 1***543 it shall
prescribe the equipnent, appliances, facilities, or
service to be provided or used by the utility, and
shall further prescribe amrules for the performance of
any service or the furnishing of any cOrrmOdityIl by
such utility. (0 761.) And whenever the comnis-
sion finds that the equipnent, apparatus, or facil-
i ties of any uti 1 ity should be changed or inproved,
or new structures be erected, in order to promote the
llsecuritytt of its employees or the public, it shall
order the utility to make such changes or erect such
structures. (f 762.)
Second, the comnission has equally broad author-
ity over the design and siting of electric power-
lines. Its authority over design dates back to the
early days of the comnission and its predecessor,
the California Railroad Comnission (CRC). In 1911 the
Legislature enacted a statute prescribing mandatory
standards for the design and construction of overhead
electric lines, poles, and wires. (Stats. 1911, ch.
499, 5 1, p. 1037.) In 1915 the Legislature amended
the statute by authorizing the CRC to permit certain
deviations from those standards, and by adding a new
section (8 8) declaring that the CRC llis hereby in-
structed to inspect [**MI [***553 all work which is
included in the provisions of this act, and to make
such further additions or changes as said C*9251 cun-
mission may deem necessary for the purpose of safety
to employees and the general public, . . .Ia (Stats.
1915, ch. 600, 0 4, p. 1063, italics added.) The
legislation is now found in sections 8026 to 8038 of
the Public Utilities Code.
Pursuant to this grant of power, the CRC issued
regulations governing overhead electric lines in 1922
(Gen. Order No. 641, in 1928 (Gen. Order No. 64-
A), and in 1941 (Gen. Order No. 95). The lat-
ter order is still in effect, having been frequently
amended since its date of issuance. Its stated pur-
pose is to prescribe uniform requirements for over-
head electric line construction in order to Ilinsure
adequate service and secure safety" to those who work
on such lines and to "the public in genera1.I) (Gen.
Order No. 95, rule 11.) The order now comprises
over 440 pages of highly detailed specifications for
the design, construction, operation, and maintenance
of overhead electric lines, including such matters as
the nunber, spacing, material, strength, and shield-
ing of conductor wires, and their minimun clearances
[***561 from buildings, streets, and railroads. The
order also regulates poles and towers, guy wires, in-
sulators, transformers, voltage regulators, warning
signs, and nunerous other components of powerline de-
sign and construction.
The comnission also has exclusive jurisdiction
over the siting of the vast majority of electric
powerlines in this state. This jurisdiction flows
from the general requirement that every public util-
ity, including every electric utility, must obtain
a certificate of public convenience and necessity
from the comnission before beginning construction of
any llline, plant, or system, or of any extension
thereof" (5 1001). The only exception to this re-
quirement is the limited jurisdiction vested in the
State Energy Resources Conservation and Development
Comnission (Energy Comnission). n21 With that ex-
ception, the comnission retains exclusive jurisdic-
tion over the siting of all other electric powerlines
in the state, including all preexisting lines (Pub.
Resources Code, 5 25107, 255011, all lines in the
interconnected transmission system ( PUC v. Energy
Com., supra, 150 Cal. App. 3d 4371, all primary or
radial lines emanating from hydroelectric, wind, or
solar C***571 photovoltaic powerplants ( id. at p.
452; Pub. Resources Code, 5 25107, 251201, and all
lines emanating from out-of-state generating facili-
ties ( PUC v. Energy Com., supra, 150 Cal. App. 3d
at p. 452; Pub. Resources Code, § 25107).
n21 The Energy Comnission has exclusive jurisdic-
tion over the siting of thermal powerplants and
*oelectric transmission lines,8t but the latter are
limited to new I1primaryl1 or Itradialtt lines de-
livering electricity from thermal powerplants 10-
cated in California to their first point of junc-
tion with the state's interconnected transmission
system. (Pub. Resources Code, 5 25107, 25110,
25500; Public Utilities Com. v. Energy Resources
13 Cat. 4th 893, *925; 920 P.2d 669, **688;
1996 Cat. LEXlS 4216, ***57; 55 Cat. Rptr. 2d 724
Page 18
Conservation & Dev. Com. (1984) 150 Cat. App.
3d 437 1197 Cat. Rptr. 8661 (hereafter PUC v.
Energy Com. ). )
[*9261
IV
The next question is whether the comnission has
exercised the foregoing authority to adopt a policy
on powerline electric and magnetic fields. Ue con-
clude that it has.
Prior to 1988 the comnission had t***583 addressed
the issue of the potential public health effects of
such fields only on a case-by-case. basis. (See,
e.g., San Diego Gas & Electric Co. (1981) Ca1.P.U.C.
Dec. No. 93785.) In 1988, however, the Legislature
initiated a broad inquiry into the subject. It
found, inter alia, that "A nunber of scientific stud-
ies are beginning to indicate that electromagnetic
fields associated with electrical utility facili-
ties may present a significant cancer risk." (Stats.
1988, ch. 1551, 5 1, subd. (a)(2), p. 5565.~
The Legislature then declared its intent to determine
by further research Whether exposure to electromag-
netic fields caused by electrical utility generating
and transmission facilities presents an unreasonable
cancer risk, and whether legislation is needed to re-
duce that risk." (Id., SUM. (b), p. 5566.)
To effectuate this intent the Legislature directed
the comnission and the State Department of Health
Services (DHS) to prepare and shit a joint report
(1) identifying 1**6891 any cancer or other medical
risks found by any study to be associated with pow-
erline electric ark magnetic fields, and (2) list-
ing further "high-priority research projects" that
need [***591 to be undertaken to identify such risks.
(Stats. 1988, ch. 1551, 5 2, subd. (d)), p.
5566.)
The legislation next directed the comnission and
DHS to jointly conduct the high-priority research
projects thus listed, and to shit a further report
within three years on the status of that research pro-
gram and "on recomnendations, if any, for legislation
to limit exposure to electromagnetic fields.@I (Stats.
1988, ch. 1551, 5 3, SUM. (b), p. 5567.)
On September 15, 1989, the comnission and DHS pre-
sented their first joint report to the Legislature in
response to the foregoing statutory directive. (Rep.
to Legis. by Ca1.P.U.C. & Cal. Dept. Health
Services, Potential Health Effects of Electric and
Magnetic Fields from Electric Power Facilities (1989)
(PUC & DHS Report).) The report surmarized the exist-
ing studies on the topic and concluded, "the body of
scientific evidence for electric and magnetic fields
causing a significant health risk is not yet com-
pelling, but it is worrisome.I4 (Id. at p. 6-3.)
The report then identified a nunber of high-priority
projects for future research and recomnended a se-
ries of additional steps, e.g., engineering studies
of ways to reduce field exposure t***601 if neces-
sary, consideration of a statewide program to mea-
sure fields, coordination with research and regula-
tory programs of other states, and educational out-
reach. [*9271
The report next turned to the question whether
statewide regulation of powerline electric and mag-
netic fields would be timely and appropriate. Seven
states had adopted standards prescribing maximum
allowable field levels in certain circunstances,
but the comnission and DHS rejected that step for
California. Their report explained that #'not enough
is known yet to conclude whether or not these fields
pose a significant health hazard. Setting field
standards therefore might amount to addressing a
problem that either does not exist or is insignifi-
cant relative to other societal hazards.o1 (PUC & DHS
Rep., supra, at p. C-20.)
Uorse, the report observed, %ot only are ue un-
sure a significant health problem exists, we also do
not know what action would be protective of public
health, even if we wanted to take imnediate action on
the chance that there is a problem.
##The obvious protective approach--reducing soci-
ety's overall level of exposure to electric and mag-
netic fields--could, based on a reading C***613 of
the available science, conceivably make any exist-
ing problem worse, not better. For example, cur-
rent scientific evidence suggests that there may be
particular field strengths which activate biological
responses, while fields either below or above such
strengths may cause little or no effects. Regulatory
actions aimed at reducing overall levels of exposure
could therefore conceivably increase the nunber of
people exposed to harmful fields." (PUC & DHS Rep.,
supra, at p. C-21, italics in original.)
Finally, the report explained, the major problem
is not high-voltage transmission lines: lhore peo-
ple are exposed chronically to the fields from dis-
tribution lines, building wiring, and certain ap-
pliances (e.g., electric blankets) than they are to
transmission-line fields. Based on the available
science, it is reasonable to speculate that trans-
mission lines are a relatively minor component of any
overall health problem that may be posed by exposure
13 Cal. 4th 893, *927; 920 P.2d 669, **689;
1996 Cat. LEXIS 4216, ***61; 55 Cal. Rptr. 2d 724
Page 19
c-
to power-frequency fields." (PUC 8 DHS Rep., supra,
at p. C-22, italics in original.)
The comnission and DHS concluded that Itwe are not
only unsure uhether [adverse health1 effects exist,
we also do not know--assuming C***621 for the mo-
ment that they do exist--what measures could be taken
that would be protective of public health." (PUC & DHS
Rep., supra, at p. C-22.)
Accordingly, the comnission and DHS olrecomnended
that California take no action at the present to reg-
ulate electric and magnetic fields arOund electric
power facilities. Any such actions are premature
given current scientific understanding of this public
health issue. Too 1 i ttle is known I*9281 presently
to be able to determine where or what rules would
provide useful protection. Existing research data
are not sufficient for adequate accurate risk assess-
ment. We do not know which components, if any, of
electric power 1**6901 utility operations pose sig-
nificant health hazards. Although biological effects
are clearly established, the relationship of these
effects to possible public health risks is not yet
established." (PUC 8 DHS Rep., supra, at p. 8-4,
c italics added.)
One year later, on September 12, 1990, the com-
mission took its first step in developing a formal
fields when it issued the Kramer-Victor decision,
(Re Southern California Edison [***631 Company (1990)
37 Cal.P.U.C.2d 413 (hereafter Kramer-Victor).) The
decisim granted Southern California Edison Company
a certificate of public convenience and necessity to
construct a new 220 kV transmission line 38 miles
- regulatory policy on powerline electric and magnetic
L
" long between its Kramer and Victor substations in San
Bernardino County. n22 In discussing environmental
considerations, the comnission reiterated that ?stud-
sion as to whether the electromagnetic fields emanat-
ing fran transmission lines pose hazards to health. . . . All that is certain is that we do not know
enough to dismiss the issue entirely." ( Id. at pp.
452-453.)
- ies to date allow one to reach virtually any conclu-
,e-
-
n22 The comnission noted (Kramer-Victor, supra, 37
Cal.P.U.C.2d at pp. 463-464, fn. 2) that al-
though its jurisdiction extended to all powerlines
in the integrated utility system, it had chosen to
limit its review to lines designed to operate at
more than 200 kV (Gen. Order No. 131-C). As will
appear, the comnission has recently changed that
pol icy.
c***643
Instead, the comnission drew a dis #tint :tion between
neu and existing powerlines. It reiterated its re-
fusal to adopt standards prescribing maxim allow-
able field levels, and it declined to requ quirt el that
any action be taken to change field exposure levels
along existing transmission lines.a8 (Kramer-Victor,
supra, 37 Cal.P.U.C.2d at p. 453, italics added.)
It ruled, however, that While the jury is out on the
question of transmission line-related health risks,
the prudent response is to avoid unnecessary new ex-
posure to electromagnetic fields." (Ibid., italics
added.) The comnission explained that We are no
more able than any other governmental entity to make
a final judgment based on current information about
the potential for health risk stemning from exposure
to electromagnetic fields. However, until the sci-
entific findings are more definitive, we uill re-
quire [the utility1 to take responsible, low-cost
steps to avoid unnecessarily exposing people to these
fields." (Ibid., italics added.) The comnission con-
cluded that l8Because of the continuing scientific un-
certainty, remedies should be fashioned so as to min-
imize impact on over-all project [***651 cost. Since
no one has identified any particular exposure level
as safe or unsafe, the chosen remedy mclst strive to
maintain the status quo.Il (Ibid.) [*9291
Accordingly, the comnission placed two conditions
on the certificate of pub1 ic convenience and neces-
sity for construction of the new powerline: it or-
dered (1) that the utility give written information
on the ongoing controversy about electric and mag-
netic fields to all persons living or working near
the right of way, and (2) that the utility measure
existing field levels at the edge of the right of way
and "take reasonable steps to place the new line . . . in such a way as to minimize any increase in field
exposure levels" to persons living or working near the
right of uay. (Kramer-Victor, supra, 37 Cal.P.U.C.2d
at p. 463, italics added.)
Only four months later, on January 15, 1991, the
comnission reopened and greatly enlarged its inquiry
into this topic: on its own motion, the comnis-
sion instituted a broad investigation Vo develop
policies and procedures for addressing the poten-
tial health effects of electric and magnetic fields
of utility facilities.Il (Ca1.P.U.C. Order Instituting
Investigation No. C***661 91-01-012 (1991) p. 1
(OII).)
The order explained that the comnission was
Page 20
13 Cal. 4th 893, *929; 920 P.2d 669, "690;
1596 Cal. LEXIS 4216, ***66; 55 Cal. Rptr. Zd 724
%uilding upon8' responses to its decision in Kramer-
Victor, supra, 37 Cal.P.U.C.2d 413, and recited that
an investigation into lothe public concern over po-
tential health effects of electric power frequency
fields is necessary at this time to assure public
confidence in the maintenance of safe, reliable, and
reasonably-priced electricity service in California.Il
(011, supra, at p. 3.) The order listed the goals
that the comnission desired to achieve--primarily
to 81Develop a series of policy and regulatory ap-
proaches and programsn8 responding to the possible
public [**6913 health effects of electric and mag-
netic fields. (Id. at p. 7.) The order then
invited proposals on a wide variety of issues of both
policy and practice, named all California-regulated
utilities respondents in the proceedings, and invited
participation by all other interested parties. The
order gave notice that as a result of the investiga-
tion the comnission %ay change its existing rules,
regulations, and policies regarding the operation,
design, construction, or siting of electric utility
power facilities . . . 1***67l .I8 (Id. at p.
13.)
Thereafter the cmission appointed an advisory
panel (the consensus Group) of 17 persons represent-
ing various state agencies, utility companies, elec-
tric workers unions, and consuner organizations con-
cerned about possible health effects of electric and
magnetic fields. On March 20, 195'2, after five
months of meetings and discussions, the Consensus
Group issued its report to the cmission. (Rep.
by Cal. EMF Consensus Group to P.U.C., Issues
and Recomnendations for Interim Response and Policy
Addressing Power Frequency Electric and Magnetic
Fields (1992) (Consensus Group Report).) [*9301
The report recognized that "the scientific com-
munity has not concluded whether or not there is
a health risk" from electric and magnetic fields
(consensus Group Rep., supra, at p. 11, and pend-
ing an answer to that question, the report made a
nunber of recomnendations for interim action by the
comnission. Its main policy recamendation was to
urge the comnission to I8adopt an interim policy that
authorizes utilities to implement no-cost or low-cost
steps to reduce fields" because of public concern and
scientific mcertainty. (Id. at p. 8.) It fur-
ther recomnended [***MI that uti l i ties "take [such
concerns] into account when siting new electric fa-
cilities.as (Id. at p. 9.1 And it recOmnended that
the comnission authorize utilities to measure fields
at customers' homes on request and at workplaces if
the employer agrees to give the results to the employ-
ees. The report also made nunerous recomnendations
for further research and public education. Finally,
the report set forth a nunber of Won-consensus pro-
posals,I8 i.e., recomnendations supported by some but
not all members of the panel.
The comnission subsequently held public hearings
on the recamendations of the Consensus Group, and
the parties filed briefs. On November 2, 1993, the
comnission issued its decision responding to those
recomnendatims and hearings. (Re Potential Health
Effects of Electric and Magnetic Fields of Utility
Facilities (1993) 52 Cal.P.U.C.2d 1 (Electric and
Magnetic Fields).) The cmission evidently did not
intend the decision to be its last word on the sub-
ject: it entitled its order an tlInterim Ordert8 and
its opinion an "Interim Opinion," and it began the
latter by declaring that Wy this order we are tak-
ing interim steps to address electric and magnetic
C***691 fields (EMF) related to electric utility fa-
cilities and power 1ines.l8 ( Id. at p. 5, fns.
omitted, italics added.)
The reason for the decision's interim status was
quickly explained. The comnission stated that "At
the opening of this investigation the scientific com-
munity had not reached a consensus on the nature of
any health impacts of EMF. As the evidentiary phase
progressed, witnesses identified and testified on EMF
studies which were released subsequent to the suhit-
tal of the [Consensus Group] report." (Electric and
Magnetic Fields, supra, 52 Cal.P.U.C.2d at p. 7.)
The cmission noted that it had asked DHS to as-
sess the scientific evidence concerning the poten-
tial dangers of such fields. The comnission then
stressed that the DHS witness and other scientific
witnesses concluded that the studies released after
the Consensus Group Report "had not led them to be-
lieve that an EMF health hazard actually existed or
that there was a clear cause and effect relation-
ship between uti 1 ity property or operations and pub-
lic health." ( Id. at p. 8.)
Accordingly, the comnission found that "the
body of scientific evidence continues to evolve.Il
(Electric and Magnetic Fields [***703 , supra, 52
Cal.P.U.C.2d [*9311 at p. 8.) It recognized, how-
ever, that 8fipublic concern and scientific uncertainty
remainB' regarding the potential health effects of
such fields. (Ibid.) Citing its constitutional au-
thority to make rules for the utilities it regulates
(Cal. [**6921 Const., art. XI I, 5 6) and the statu-
tory requirement that utilities provide service and
facilities necessary to promote the health and safety
of their customers, employees, and the public (5 4511,
the comnission concluded that "it is reasonable to
Page 21
13 Cal. 4th 893, *931; 920 P.2d 669, **692;
1996 Cal. LEXIS 4216, ***70; 55 Cal. Rptr. 2d 724
establish an EMF policy for electric utility facil-
ities and power lines" (Electric and Magnetic Fields,
supra, 52 Cal.P.U.C.2d at p. 81, and it proceeded to
do so. Ue smrize the principal components of that
pol icy.
First, the comnission ordered the utilities to im-
plement no-cost and low-cost steps to reduce or mit-
igate electric and magnetic fields. The comnis-
sion defined 8110w costla to mean approximately 4 per-
cent .of the total cost of a project, and ordered
the utilities to use that 4 percent figure as a
benchmark in developing their mitigation guidelines.
<Electric and Magnetic Fields, supra, 52 Cal.P.U.C.2d
at p. t***713 9.) The comnission limited its order,
however, to new and upgraded facilities: "Absent
testimony which conclusively demonstrates that expo-
sure from electric utility EMF causes health risks,
we will continue the EMF policy established in the
Kramer-Victor transmission line decision. That pol-
icy provided that remedies applied to reduce hunan
exposure to EMF must be determined uithin the con-
straints of each new construction project.88 (Electric
and Magnetic Fields, supra, 52 Cal.P.U.C.2d at p. 9,
fn. omitted, italics added.)
Second, the comnission noted that the Consensus
Group Report also made three non-consensus propos-
als relating to electric and magnetic fields from ex-
isting facilities. The comnission expressed inter-
est in developing a record on the issues presented by
those proposals, in order to guide it in "the pos-
sible developnent of EMF policy for existing facil-
ities" if future scientific research were to warrant
such a step. (Electric and Magnetic Fields, supra,
52 Cal.P.U.C.2d at p. 9.) Accordingly, the cmnis-
sion invited the parties to file cunnents on the three
nonconsensus proposals thus identified, 1% well as
the broader question of what policy t***72l options
we should be adopting at this time to address the
concerns of ratepayers about EMFs at existing util-
ity facilities. Following review of the cunnents, we
may schedule hearings." ( Id. at p. 10.)
Third, the utilities proposed to develop "design
guidelines1# to follow in designing and siting new
powerline facilities, for the purpose of mitigating
electric and magnetic fields. The comnission agreed
in principle, and ordered its own Comnission Advisory
and Compliance Division to conduct a [*9321 public
workshop on developing such guidelines. It directed
that the guidelines incorporate the concepts and cri-
teria adopted in the present order, engineering op-
tions for mitigating electric and magnetic fields,
and criteria to justify exempting specific types of
projects. The cmission also invited electric util-
ities not subject to its jurisdiction to participate
in the workshop and adopt similar guidelines.
Fourth, the comnission declared a need for a uni-
form utility policy on measuring electric and mag-
netic fields in customers1 homes and offices, and or-
dered that the topic be addressed in the foregoing
workshop on design guidelines. The comnission recog-
nized that the utilities t***731 are legally respon-
sible for electricity only up to the point of connec-
tion of the powerline with the customers1 premises.
n23 The comnission also recognized that IIEMFs come
from many sources beyond the control of the electric
utilities,Il that Vhe most often found source of mag-
netic fields in residential and comnercial property
is the grounding system," that I8EMFs also come from
electrical appliances and electronic equipment,I8 and
hence that "utility facilities may not be a major con-
tributor to EMF exposure in the terms of field level.nb
(Electric and Magnetic Fields, supra, 52 Cal.P.U.C.2d
at p. 12.) Nevertheless, the comnission directed
that the field measurement policy authorize the util-
ities to continue making measurements on the cus-
tomers' premises beyond the connection point, be-
cause of the @reducational valuea1 of such measure-
ments. (Ibid.) The comnission also directed that
the customers be given the results of such measure-
ments in writing.
n23 That is, up to the electric meter in the case
of a residential or comnercial customer, or in the
case of an industrial customer with its own substa-
tion (i-e., transformer), up to that substation.
t***741
Fifth, the Consensus Group recomnended that a
%takeholders advisory comni ttee" t**6933 composed of
labor, industry, public, and goverrmental members be
appointed to advise the comnission on electric and
magnetic field policy, education, and research. The
comnission adopted the recumnendation, stressing that
Ininvolvement from stakeholders and the public is very
important to the development of effective EMF poli-
cies in California.' (Electric and Magnetic Fields,
supra, 52 Cal.P.U.C.2d at p. 14.) Although the
comnission deferred to DHS on the particular form
that stakeholder and public involvement should take,
it declared that We will continue to work closely
with DHS in the ongoing development of EMF policy in
California.Il (Ibid., fn. omitted.) More specifi-
cally, the comnission ordered the utilities to fund
Page 22
13 Cal. 4th 893, *932; 920 P.2d 669, **693;
1996 Cal. LEXIS 4216, ***74; 55 Cal. Rptr. 2d 724
,".
such stakeholder and public involvement activities up
to the amount of S 100,000 over the four-year life of
the education and research programs to be discussed
next. P9333
Sixth, the Consensus Group recognized that most of
the electric utilities were already conducting public
educational programs about the nature and possible
risks of electric [***El and magnetic fields. The
Consensus Group recmnded supplementing those indi-
vidual utility programs with a coordinated statewide
education program on the topic managed by DHS with
input by the stakeholders advisory cmittee and de-
signed to provide the public with credible and consis-
tent information from a neutral source. The cmis-
sion agreed, but limited the program to electric and
magnetic fields arising from regulated utilities1 fa-
cilities and powerlines. The cmission ordered the
utilities to participate in such a program and to fund
it up to the amount of S 1.49 mi 1 lion over four years,
recovering the cost from the ratepayers. In partic-
ular, as part of the program the comnission directed
the utilities to include a yearly bill insert identi-
fying Itwhat is known about EMFs, what is being done,
and what options exist based on current knowledge
about potential health risks.lI (Electric and Magnetic
Fields, supra, 52 Cal.P.U.C.2d at p. 16.)
Seventh, the Consensus Group also recmnded a
coordinated statewide research program into electric
and magnetic fields to supplement similar research
programs currently conducted by individual utilities.
Again it recmnded that the t***761 program be man-
aged by DHS with input by the stakeholders advisory
cunnittee, and proposed that it focus on six priority
research topics (see Consensus Group Rep., supra, at
p. 32): (1) resolution of unanswered questions con-
cerning the validity or applicability of leading epi-
demiological studies of electric and magnetic fields;
(2) analysis of actual patterns of exposure to such
fields in electricity-intensive occupations and loca-
tions; (3) engineering research to determine how such
fields could be affected by utility design changes,
and the costs thereof; (4) policy-options research
to evaluate and increase the nunber of regulatory re-
sponses that could be adopted, depending on the re-
sults of the scientific research; (5) laboratory ex-
periments on cells, animals, and hunans, designed (a)
to replicate the studies of different researchers re-
porting biological effects of such fields and (b)
to systematically establish a dose-response relation;
and (6) laboratory experiments attempting to under-
stand the biophysical mechanism by which such fields
affect cells.
The cmission agreed, and ordered the uti l i ties
to participate in such a program. n24 The comnission
directed the utilities t***m to fund the first four
research topics listed above (the llnon-experimntalll
research) up to the t*9341 amount of S 5.6 million
over four years, recovering the cost from the ratepay-
ers. To fund the other two research topics (the "ex-
perimentalll research), the comnission authorized the
utilities to participate in a research and risk as-
sessment program conducted by the federal government
pursuant to the National [**6941 Energy Policy Act of
1992, supported by both goverrmental and nongovern-
mental sources.
n24 The comnission was less than sanguine about
the prospect of such research reaching a defini-
tive conclusion any time soon, agreeing that
IIScientists have been unable to develop a consen-
sus that there is a definite link between EMF and
adverse health effects on humans after more than
thirty years of research and thousands of stud-
ies." (Electric and Magnetic Fields, supra, 52
Cal.P.U.C.2d at p. 20.) But the cmission also
agreed that in the absence of further research,
public policy on the issue would run the risk of
being guided by popular perception rather than sci-
entific analysis, Itresulting in the adoption of
reactive and expensive policies.*4 ( Id. at p.
21.)
1***783
There is no doubt that the comnission is still ac-
tively pursuing the broad policy inquiry into the po-
tential health effects of powerline electric and mag-
netic fields that it initiated in 1991 (011 No. 91-
01-012) and that produced its interim policy deci-
sion of 1993 (Electric and Magnetic Fields, supra,
52 Cal.P.U.C.2d 1). On June 8, 1994, the comnis-
sion issued a decision adopting a new regulation (Gen.
Order No. 131-D) imposing a permit-to-construct re-
quirement on all transmission lines designed to oper-
ate between 50 kV and 200 kv. (Re Rules, Procedures
and Practices Applicable to Transmission Lines Not
Exceeding 200 Kilovolts (1994) 55 Cal.P.U.C.2d 87
(Rules Applicable to Transmission Lines).) In the
course of that decision the cmission addressed the
issue of the potential health effects of electromag-
netic fields arising from such transmission lines.
The comnission recited that I'In cooperation with
the California Oepartment of Health Services, the
Comnission is currently studying the potential health
Page 23
13 Cal. 4th 893, *934; 920 P.2d 669, **694;
1996 Cal. LEXIS 4216, ***78; 55 Cal. Rptr. 2d 724
effects of electric power facilities in LO11 No.)
91-01-012.*1 (Rules Applicable to Transmission Lines,
supra, 55 Cal.P.U.C.2d at p. 100, italics added].)
[***793 The cmission then reaffirmed its interim
policy decision of 1993: OlOn November 12, 1993,
the Comnission issued [Electric and Magnetic Fields,
supra, 52 Cal.P.U.C.2d 13, which notes that the sci-
entific comrrrnity had not yet isolated the inpact of
utility-related exposure on public health. However,
the Comnission concluded that: (1) the policy es-
tablished in the Kramer-Victor decision [(supra, 37
Cal.P.U.C.2d 413, 45311 to reduce Electromagnetic
Fields (EMF) levels should be continued for new and
upgraded facilities; and (2) the utilities should use
4 of total cost of a tdgeted project as a bench-
mark in developing their EMF mitigation guidelines."
(Rules Applicable to Transmission Lines, supra, 55
CaL.P.U.C.Zd at p. 100.)
'lAccordingly,l' the comnission concluded, lowe re-
quire that until such time as the Comnission is-
sues new guidelines, the utilities shall implement
low-cost EMF mitigation measures in new and upgraded
projects unless exenpted by the utility's design
guidelines exemption criteria." (Rules Applicable to
Transmission Lines, supra, 55 Cal.P.U.C.2d at p.
100, italics added.) 1*9351
V
It follows that the comnission has exercised--
and C***801 is still exercising--its constitutional
and statutory authority to adopt a general policy on
whether electric and magnetic fields arising from the
powerlines of regulated utilities are a public health
risk and what steps, if any, the utilities should take
to minimize that risk. The final question is whether
the present superior court action would hinder or in-
terfere with that policy within the meaning of Waters,
supra, 12 Cal. 3d 1, and its progeny. Ue conclude
that certain counts of the conplaint must fall under
Uaters, while the remainder fail to state causes of
action under the governing rules of substantive law.
1. The Personal Injury Causes of Action
As noted above (pt. I, ante), the Court of Appeal
held that plaintiffs failed to state any personal in-
jury cause of action for fear of cancer because they
did not and could not allege, as required by Potter,
supra, 6 Cat. 4th 965, 997, that lareliable medi-
cal or scientific opinion" corroborates their belief
that it is probable that they will in fact develop
cancer in the future from exposure to the electric
and magnetic fields arising from SDGBE's powerlines.
Plaintiffs have now expressly abandoned this [***81]
issue: in their opening brief
vise us that they "do not seek
of the court's opinion dealing
sonal injury action.'' n25
on the merits they ad-
review of that portion
with the Covalts' per-
n25 The complaint also alleges a cause of action
for injunctive relief, but in their opening brief
plaintiffs concede that cause of action is now
moot because they have vacated the premises and the
mortgagor has foreclosed on the property.
[**6951 2. The Trespass Cause of Action
The conplaint predicates the trespass cause of
action on allegations that SOG&E ('intended to and did
emit electromagnetic radiation onto plaintiffs' prop-
erty without plaintiffs' consent,(' and as a result
of "this physical invasion'l plaintiffs' property was
"rendered unsafe and uninhabitable" and plaintiffs
will be forced to sell it at a substantial loss or
abandon it altogether.
Again plaintiffs do not and cannot state facts suf-
ficient to constitute a cause of action for trespass
under the substantive law of this state. That [***823
law was settled in Wilson v. Interlake Steel Co.
(1982) 32 Cat. 3d 229 [185 Cal. Rptr. 280, 649 P.2d
9221 (Wilson). The plaintiffs in that case resided
in homes adjacent to a steel fabricating plant. A
previous owner had operated the plant on an 8-hour
daytime basis, but in 1969 the defendants bought the
[*9361 plant and expanded it to a 24-hour8 around
the clock operation. Complaining of the high level
of noise generated by the plant, particularly during
late night and early morning hours, the plaintiffs
filed an action for trespass. The parties stipu-
lated that the plaintiffs' use and enjoyment of their
property was substantially disrupted by the noise em-
anating from the plant; the noise was transmitted
through the air but no physical or particulate mat-
ter passed over or onto the plaintiffs' property; the
noise did not cause any physical damage to the prop-
erty; but the plaintiffs, if called, would testify
that the noise emissions had resulted in a diminution
in the market value of their homes. On these facts
the trial court entered judgment for the defendants,
ruling that noise alone, without physical damage to
the property, does not support a trespass cause of
action. [***831
We agreed. In his unanimous opinion for the
court, Justice Richardson reasoned that "Noise alone,
without damage to the property, will not support a
Page 24
13 Cat. 4th 893, *936; 920 P.2d 669, **695;
1996 Cal. LEXlS 4216, ***83; 55 Cal. Rptr. 2d 724
tort action for trespass. Recovery allowed in prior
trespass actions predicated upon noise, gas emis-
sions, or vibration intrusions has, in each instance,
been predicated upon the deposit of particulate mat-
ter upon the plaintiffs' property or on actual phys-
ical damage thereto. [Citations.] [PI All in-
tangible intrusions, such as noise, odor, or light
alone, are dealt with as nuisance cases, not tres-
pass. CCitations.3 [PI succinctly stated, the rule
is that actionable trespass may not be predicated upon
nondamaging noise, odor, or light intrusion. . .
-11 (32 Cal. 3d at pp. 232-233.) Although we ac-
knowledged that a certain overlap between the reme-
dies has developed in the case law, we squarely de-
clared that We preserve that historical conceptual
distinction between nuisance, whether public or pri-
vate, and trespass." ( Id. at p. 234.) n26
n26 We ultimately reversed the judgment to allow
the trial court to determine whether a nuisance
remedy was barred by adverse findings in a prior
nuisance action between the same parties.
c***841
Uilson expresses the general rule (Prosser &
Keeton, Torts (5th ed. 1984) pp. 71-72), and it
is controlling here. First, electric and magnetic
fields arising from powerlines are wholly intangi-
ble phenomena within the meaning of Uilson. Indeed,
unlike noise, odors, or light, they cannot be di-
rectly perceived by the senses. Instead, electric
and magnetic fields are more akin to television and
radio waves: as we explained in our background dis-
cussion, such fields are an extremely low frequency,
non-ionizing form of electromagnetic energy.
Second, plaintiffs do not allege--as they are re-
quired to do under Uilson, supra, 32 Cal. 3d 229-
-that the electric and magnetic fields at issue in
this case caused any physical damage to their prop-
erty. Nor can they so allege, [*937l given the low
frequency and consequent low energy of such fields.
Plaintiffs do allege that the fields in question made
their property ''unsafe and uninhabitable." But prop-
erty is Wnsafe and uninhabitablell only to the ex-
tent that it creates a risk of personal harm to its
occupants, which is manifestly different from damage
to the property itself. Plaintiffs further allege
that the electric C***851 and magnetic fields on the
property will force them to sell it at a substantial
loss or abandon it altogether. A diminution in prop-
erty value, however, is not a type of physical dam-
age to the property itself, but an element of the
measure of damages when such damage [**696J is oth-
erwise proved. Thus in Wilson we found no physical
damage to the property--and hence no cause of action
for trespass--even though the parties stipulated they
would have testified that the noise emissions from the
adjacent plant resulted in a 9neasurable diminution
in the market value of their homes." (32 Cat. 3d
at p. 232; accord, Maddy v. Vulcan Materials Co.
(D.Kan. 1990) 737 F. Supp. 1528, 1540-1541 talle-
gation of diminution in market value of property, held
insufficient allegation of property damage to support
a trespass cause of action for intangible intrusion
of airborne gases from adjacent factory]; Bradley v.
American Smelting & Refining Co. (U.0.Wn. 1986) 635
F. Supp. 1154, 1157 [same; "this sort of evidence
can serve only to quantify the magnitude of injury
otherwise provenoal.)
3. The Nuisance Cause of Action
Plaintiffs attempt to state a cause of action
[***861 for private nuisance, i.e., a nontrespassory
interference with the private use and enjoyment of
land. (See Civ. Code, 5 3479-3481.) In distinction
to trespass, liability for nuisance does not require
proof of damage to the plaintiff's property; proof of
interference with the plaintiff's use and enjoyment
of that property is sufficient. (E.g., Dauberman v.
Grant (1926) 198 Cal. 586, 590 C246 P. 319, 48 A.L.R.
12441 [lilt was not necessary to the recovery of dam-
ages caused by the nuisance of smoke and soot to prove
actual damage to plaintiff's property.'@].) In fur-
ther distinction to trespass, however, liability for
private nuisance requires proof of two additional el-
ements. This requirement flows from the law's recog-
nition that "Life in organized society and especially
in populous comnunities involves an unavoidable clash
of individual interests. Practically all hunan ac-
tivities unless carried on in a wilderness interfere
to some extent with others or involve some risk of
interference, and these interferences range from mere
trifling annoyances to serious harms. It is an ob-
vious truth that each individual in a cmnity must
put up with a certain amount of annoyance, inconve-
nience [***871 and interference and must take a cer-
tain amount of risk in order that all may get on to-
gether. The very existence of organized society de-
pends upon the principle of 'give and take, [*9381
live and let live,' and therefore the law of torts
does not attempt to impose liability or shift the loss
in every case in which one person's conduct has some
detrimental effect on another. Liability for damages
is imposed in those cases in which the harm or risk to
one is greater than he ought to be required to bear
Page 25
13 Cal. 4th 893, *938; 920 P.2d 669, **696;
1996 Cal. LEXIS 4216, ***87; 55 Cal. Rptr. Zd 724
under the Circumstances, at least without compensa-
tion." (Rest.2d Torts, § 822, com. g, p. 112.)
The first additional requirement for recovery of
damages on a nuisance theory is proof that the inva-
sion of the plaintiff's interest in the use and enjoy-
ment of the land was substantial, i.e., that it caused
the plaintiff to suffer "substantial actual damage.@a
(1 Harper et al., The Law of Torts (3d ed. 1996)
1.23, p. 1:97; accord, Prosser 8 Keeton, supra, 3
87, m. 622-623; id., § 88, pp. 626-628.) The
Restatement recognizes the same requirement as the
need for proof of Ilsignificant harm" (Rest.2d Torts,
5 821F), which it variously defines as 'aharm of im-
portance" [***881 and a "real and appreciable inva-
sion of the plaintiff's interests" (id., corn. c, p.
105) and an invasion that is ''definitely offensive,
seriously annoying or intolerable" (id., com. d, p.
106). The degree of harm is to be judged by an ob-
jective standard, i.e., what effect would the inva-
sion have on persons of normal health and sensibi li-
ties living in the same comnunity? (Prosser & Keeton,
supra, 5 88, pp. 627-628.) ''If normal persons in
that locality would not be substantially annoyed or
disturbed by the situation, then the invasion is not
a significant one, even though the idiosyncracies of
the particular plaintiff may make it unendurable to
him." (Rest.2d Torts, 5 821F, com. d, p. 106.)
This is, of course, a question of fact that turns on
the circunstances of each case.
The second additional requirement for nuisance
is superficially similar but analytically distinct:
"The interference with the protected interest must
not only be substantial, but it must also be unrea-
sonable" (Prosser & Keeton, supra, 5 88, p. 629,
italics added), i.e., it must be "of such a nature,
duration or amount as to constitute unreasonable in-
terference with the use and enjoyment t**6973 [***893
of the 1and.Il (Id., 5 87, p. 623, fn. omitted; see
generally, id., 8 88, pp. 629-630; accord, Rest.2d
Torts, 5 822.) The primary test for determining
whether the invasion is unreasonable is whether the
gravity of the harm outweighs the social utility of
the defendant's conduct, taking a nunber of factors
into account. (Rest.2d Torts, 0 826-831.) Again the
standard is objective: the question is not whether
the particular plaintiff found the invasion unrea-
sonable, but Whether reasonable persons generally,
looking at the whole situation impartially and objec-
tively, would consider it unreasonable.'I (Id., 0 826,
can. c, p. 121.) And again this is a question of
fact: t°Fundamentally, the unreasonableness of inten-
tional invasions is a problem of relative values to be
determined by the trier of fact in each case [*9391
in the light of all the circumstances of that case.'#
(Id., com. b, p. 120; accord, Prosser 8 Keeton,
supra, 88, p. 629 & fn. 27.)
With these principles in mind we turn to the
case at bar. Plaintiffs have abandoned their claim
that the electric and magnetic fields arising from
SDG&E's powerlines impaired their use and enjoyment
of t***901 their property by causing them to suffer
actual physical harm. Instead, plaintiffs now con-
tend the fields impaired their use and enjoyment of
the property simply because they assertedly feared
that the fields would cause them physical harm. We
need not and do not decide here whether a fear of fu-
ture harm will support a cause of action for private
nuisance (compare Koll-Irvine Center Property Owners
Assn. v. County of Orange (1994) 24 Cal. App. 4th
1036, 1041-1042 [29 Cal. Rptr. 2d 6641 [no cause
of action for private nuisance], with County of San
Diego v. Carlstrom (1961) 196 Cat. App. 2d 485,
491 [16 Cal. Rptr. 6671 [cause of action for pub-
lic nuisance]), or, if so, whether the fear must be
reasonable, i.e., grounded in scientific fact (see 1
Harper et al., supra, 1.25, p. 1:123, and cases
cited in fns. 25 & 26). Even if we assune ar-
guendo that plaintiffs could amend their complaint to
allege such a fear, an award of damages on that ba-
sis would interfere with the policy of the comnis-
sion on powerline electric and magnetic fields. As
we have seen, in order to award such damages on a
nuisance theory the trier of fact would be required
to find that reasonable [***911 persons viewing the
matter objectively (1) would experience a substantial
fear that the fields cause physical harm and (2) would
deem the invasion so serious that it outweighs the
social utility of SDG&E's conduct. Such findings,
however, would be inconsistent with the comnissionls
conclusion, reached after consulting with DHS, study:
ing the reports of advisory groups and experts, and
holding evidentiary hearings, that the available ev-
idence does not support a reasonable belief that 60
Hz electric and magnetic fields present a substantial
risk of physical harm, and that unless and until the
evidence supports such a belief regulated utilities
need take no action to reduce field levels from ex-
isting powerlines.
4. The Inverse Condemnation Cause of Action
Both eminent domain proceedings and inverse con-
dennation actions implement the constitutional rule
that private property may not be Iltakenll (U.S. Const.,
5th Amend.) or "taken or damaged" (Cal. Const.,
art. I, 19) for public use without just compen-
sation. When a public entity exercises its power of
Page 26
13 Cat. 4th 893, *939; 920 P.2d 669, **697;
1996 Cal. LEXIS 4216, ***91; 55 Cat. Rptr. 2d 724
eminent domain to condm private property, there is
ordinarily no question that it has "taken or damaged"
that property. 1***921 But the same is not true of
inverse condemnation: While, in eminent domain lit-
igation, the focus is usually limited to the amount of
compensation owed the property 1*9401 owner under the
'just compensationi clause, in an inverse condenma-
tion action, the property owner must first clear the
hurdle of establishing that the public entity has, in
fact, taken Cor damaged] his or her property before
he or she can reach the issue of just conpensation.'
Ii ( Beaty v. Imperial Irrigation Dist. (1986) 186
Cat. App. 3d 897, 903 1231 Cal. Rptr. 1281, and
cases cited.) In the case at bar plaintiffs do not
and cannot allege a sufficient "taking or damaging11
under the law of inverse condemnation.
A public entity "takes or damages1' private prop-
erty &en it causes physical damage to that prop-
erty withwt physically invading it. (E.g., Holtt
v. Superior Cwrt 1**6981 (1970) 3 Cat. 3d 296
190 Cat. Rptr. 345, 475 P.2d 4411 [withdrawal
of lateral support caused by excavation of adjacent
street]; Reardon v. San Francisco (1885) 66 Cal.
492 I6 P. 3173 [converse: damage from increased lat-
eral pressure caused by filling of adjacent street].)
As we explained in 1***931 our discussion of the cause
of action for trespass, plaintiffs do not and cannot
allege that the electric and magnetic fields in this
case caused physical damage to their property.
A public entity also "takes or damagesti private
property when it physically invades that property in
any tangible manner. (E.g., Albers v. County of
Los Angeles (1965) 62 Cal. 2d 250 142 Cal. Rptr.
89, 398 P.2d 1291 Clandslidel; Bauer v. County of
Ventura (1955) 45 Cat. 2d 276 1289 P.2d 11 [flood-
waters] .) Permanent physical invasions of property
are takings "even if they occupy only relatively in-
substantial amwnts of space and do not seriously
interfere with the landowner's use of the rest of
his 1and.I' ( Loretto v. Teleprompter Manhattan CATV
Corp. (1982) 458 U.S. 419, 430 .I73 L. Ed. Zd 868,
878, 102 S. Ct. 31641 130-foot piece of television
cable installed on apartment house roof1 .) As we also
explained in our discussion of the cause of action for
trespass, however, electric and magnetic fields are
wholly intangible phenomena that, like television and
radio waves, i'occupyll no %pacemt at all and cannot
even be perceived by the senses.
When, as here, the conduct of a public entity
C***941 results in an intangible intrusion onto the
plaintiff's property that does not physically damage
the property, the question vhether there has been a
"taking or damagingg1 of the property sufficient to
support a cause of action for inverse condennation is
mare difficult. In these circunstances the plaintiff
must allege that the intrusion has resulted in a bur-
den on the property that is direct, substantial, and
peculiar to the property itself. Thus in Varjabedian
v. City of Madera (1977) 20 Cal. 3d 285 1142 Cal.
Rptr. 429, 572 P.2d 431 (Varjabedian), the defen-
dant city built a sewage treatment plant adjacent to
and upwind from the plaintiffs1 farm. The plain-
tiffs alleged that the plant emitted strong and 1*9411
offensive odors which the prevailing winds blew di-
rectly onto their property, rendering it uninhabit-
able. The trial court granted a motion for judgment
on the pleadings as to the plaintiffs' cause of ac-
tion for inverse condemnation on the ground that re-
covery on that theory required physical damage to the
property. We reversed the judgment in that respect,
holding that the plaintiffs could state a cause of ac-
tion for inverse condennation without alleging phys-
ical [***951 damage to the property. We reasoned
that "If a plaintiff can establish that his property
has suffered a 'direct and peculiar and substantial'
burden as a result of recurring odors produced by a
sewage facility . . . then the policy favoring
distribution of the resulting loss of market value
is strong [citation] and the likelihood that compen-
sation will impede necessary public construction is
relatively slight.11 ( Id. at p. 298.) Nauseous
gases flowing repeatedly and directly onto the plain-
tiffs' land, we held, could constitute such a burden.
The Courts of Appeal have applied the same test to
inverse condemnation actions based on such intangible .
intrusions as jet aircraft noise ( Aaron v. City of
Los Angeles (1974) 40 Cal. App. 3d 471, 493 [I15
Cal. Rptr. 1621 [operation of municipal airportl)
and traffic noise, dust, and loss of air and light (
Harding v. State of California ex rel. Dept. of
Transportation (1984) 159 Cal. App. 3d 359, 367
1205 Cal. Rptr. 5611 [freeway constructionl).
In the case at bar plaintiffs contend the upgrad-
ing of SDG&Els powerlines in 1990 constituted a "tak-
ing or damagingi1 of their property on three theories.
As will appear, none [***963 is persuasive.
First, plaintiffs contend that the upgrading of
the powerlines constituted a "taking or damagingai of
their property 'Ibecause it . . . served a pub-
lic use." This is a non sequitur. Plaintiffs rely on
a case holding that there is no liability in inverse
condenation if a utility takes or damages property
for a private use. ( Cantu v. Pacific Gas & Electric
Co. (1987) 189 Cal. App. 3d 160 1234 Cal. Rptr.
3651.) But the converse does not follow, i.e., it is
Page 27
13 Cal. 4th 893, *941; 920 P.2d 669, **698;
1996 Cal. LEXIS 4216, ***96; 55 Cal. Rptr. 2d 724
not true that there is liability for inverse condemna-
tion merely because a uti 1 ity improves property for a
public use; such liability arises only if in doing so
the utility [**6991 "takes or damages1# private prop-
erty within the meaning of the constitutional provi-
sions on eminent domain.
Second, plaintiffs contend that the increased
electric and magnetic fields arising from SDG&EIs
powerlines %onstituted a physical intrusion upon
plaintiffs' property which amounted to a per se tak-
ing requiring just compensation without further proof
of impact.81 As explained above, however, a claim of
inverse condemnation based on electric and magnetic
fields is not governed by the traditional "physi-
cal [***973 intrusion11 cases but by the cases 1*9423
dealing with an intangible intrusion that does not
physically damage the property, i.e., by the rule of
Varjabedian, supra, 20 Cal. 3d 285.
Third, plaintiffs attenpt to bring their case
within the Varjabedian rule, but they do not succeed.
As noted above, Varjabedian requires plaintiffs to
allege that the intrusion resulted in a burden on the
property that is direct, substantial, and peculiar.
Plaintiffs are unable to allege, however, that the
electric and magnetic fields in question caused a di-
rect and substantial burden on their property.
Plaintiffs' repeated claim that such fields caused
a diminution in the value of their property does not
supply the missing burden: a diminution in prop-
erty value is not a "taking or damaging@# of the prop-
erty, but an element of the measure of just com-
pensation when such taking or damaging is otherwise
proved. Thus in HFH, Ltd. v. Superior Court
(1975) 15 Cal. 3d 508, 518 1125 Cal. Rptr. 365,
542 P.2d 2371, this court held that loa zoning action
which merely decreases the market value of property
does not violate the constitutional provisions for-
bidding uncompensated taking 1***981 or damaging . . . .I1 Although that was a Ilregulatory taking" case,
our reasoning applies as well to the present "in-
trusion taking" CASE: we explained that "Plaintiffs
fail to distinguish between the 'damaged' property
which is a requisite for a finding of conpensability
and the @damages' by which courts measure the com-
pensation due. Reasoning backwards, plaintiffs er-
roneously contend that since they can calculate dam-
ages (by measuring decline in market value), they mrst
have been 'damagedl within the meaning of the state
Constitution." (Ibid.) Plaintiffs' argunent in the
case at bar is equally fallacious.
For the same reason, plaintiffs' reliance on San
Diego Gas & Electric Co. v. Daley (1988) 205 Cal.
App. 3d 1334 1253 Cal. Rptr. 1441 (Daley), is mis-
placed. The case is clearly distinguishable: Daley
was not an inverse condemnation action, but a typical
eminent domain proceeding in which an electric util-
ity exercised its undoubted power to condemn an ease-
ment for a new transmission line across unimproved
property. There was no issue as to whether or not the
utility had "taken11 the easement, n27 and the prop-
erty owner did not contest the uti I i tyls right to take
it. C***993 Rather, the sole issue was the amount of
just compensation--specifically, the amount of sev-
erance damages--required for the taking. It was in
that context that the Court of Appeal held that sever-
ance damages could include a diminution in the value
of the remainder of the property assertedly caused
by prospective buyers' fear of electric and magnetic
fields arising from the new transmission line, re-
gardless of whether that.fear was reasonable. ( Id.
at pp. 1346-1349.) That was all [*9431 that the
court decided. Cases are not authority, of course,
for issues not raised and resolved. ( Harris v.
Capital Growth Investors XIV (1991) 52 Cal. 3d 1142,
1157 1278 Cal. Rptr. 614, 805 P.2d 8731.) n28
n27 The easement was plainly visible, being a par-
cel 200 feet wide stretching across a 4,000-acre
ranch.
n28 Ue therefore need not and do not determine
whether we agree with the rule of Daley, supra, 205
Cal. App. 3d 1334, 1346-1349, or what limits, if
any, should be placed on that rule, or whether the
Court of Appeal in the case at bar was correct in
its alternate holding that Potter, supra, 6 Cat.
4th 965, %egatesll Daley's premise. Such ques-
tions must await a case in which they are properly
raised.
C***l 001
Plaintiffs also contend the electric and mag-
netic fields in question caused a direct and substan-
tial burden on their property because they assertedly
changed its "highest 1**7001 and best use" from a res-
idential property to an "effective utility easement.a1
Plaintiffs rely on federal cases holding that air-
plane flights into and out of an airport may consti-
tute a I%aking," in the constitutional sense, of an
air easement over adjacent private property. (E.g.,
Griggs v. Allegheny County (1962) 369 U.S. 84 C7 L.
Ed. 2d 585, 82 S. Ct. 5311; see also United States
v. Causby (1946) 328 U.S. 256 190 L. Ed. 1206, 66
Page 28
13 Cal. 4th 893, *943; 920 P.2d 669, **700;
1996 Cal. LEXIS 4216, ***loo; 55 Cat. Rptr. 2d 724
S. Ct. 10621.) But in such cases the flights were Tahoe Southside Water Utility (1965) 233 Cat. App.
so low, so frequent, and so noisy that they consti- 2d 469, 477 [43 Cal. Rptr. 6541, italics deleted
tuted the "direct and imnediate causet1 of a substan- (Vi la). 1
-
tiel impairment of the ownerls use and enjoyment of
the property. n29 Here plaintiffs can make no similar
allegations; indeed, they decline to allege that the
electric and magnetic fields in question caused them
to suffer any actual physical consequences at all.
Plaintiffs cite no case holding that an allegation
of fear that an intangible intrusion may cause future
harm to occupants of property is [***loll sufficient
property within the meaning of Varjabedian, supra, 20
Cat. 3d 285, and thus to satisfy the "taking or dam-
aging" requirement of the cause of action for inverse
condemnation. We have found no such authority in our
reports, and plaintiffs give us no reason to adopt
such a .rule.
-
- to charge a Indirect and substantial burdeno1 on the
-
c
I
n29 Thus in Griggs v. Allegheny County, supra,
369 U.S. 84, 87 17 L. Ed. 2d 585, 587-5881, the
noise was comparable to that of a "steam hamnerm8
or a *#noisy factory,Il made normal conversation and
regular sleep impossible, impaired the occupants'
health, and rendered their occupancy of the prop-
erty %mbearable.Il In United States v. Causby,
supra, 328 U.S. 256, 259 t90 L. Ed. 1206, 12091,
the noise was %tartling,lB deprived the occupants
of sleep, made them %ervous and frightened," and
killed more than a hundred chickens on the chicken
farm located on the property, destroying its use
for that purpose.
VI
Plaintiffs raise a nunber of additional con-
tentions, [***lo21 but none is persuasive.
First, plaintiffs assert that the comnission
lahas neither expressly nor impliedly asserted ex-
clusive jurisdiction over EMF issues.a8 Recognizing
that the comnission has plainly asserted its juris-
diction over all regulated [*9441 electric utili-
ties vis-a-vis local agencies, n30 plaintiffs ar-
gue that the comnission has never expressly declared
that local courts do not have concurrent jurisdic-
tion over issues raised by powerline electric and mag-
netic fields. Plaintiffs rely on the undoubted fact
that "It has never been the rule in California that
the comnission has exclusive jurisdiction over any
and all matters having any reference to the regula-
tion and supervision of public utilities." ( Vila v.
n30 In Rules Applicable to Transmission Lines,
supra, 55 Cal.P.U.C.2d 87, 96, the comnission
made the point crystal clear: lowe herein declare
our intent to exercise exclusive jurisdiction over
all privately owned utility electric facilities in
California [i.e., over all the electric utilities
it regulates], and all local agencies are pre-
empted." In the same decision the comnission ex-
pressly reaffirmed its exclusive jurisdiction over
distribution lines operating at less than 50 kV.
(Id. at p. 99 [Wtility-owned under-50-kV lines
remain under the Cmissionls exclusive jurisdic-
tion, which may not be pre-empted.Il1.) As noted
above (pt. I, ante), the lines involved in the
case at bar operate at 12 kV and hence fall within
that category.
[***lo31
The argunent misses the mark. The question is not
whether the comnission has declared (or has the power
to declare) local courts to be preempted on this or
any other subject; the Legislature has declared such
preemption by enacting section 1759. The question is
therefore whether section 1759 applies to this case.
That question is answered by applying, as we do herein
(pt. V, ante), the rule of Waters, supra, 12 Cal. 3d
1, 11, i.e., that section 1759 prevails over section
2106 unless the superior court action Ilwould not in-
terfere with or obstruct the comnission in carrying
out its own policies." Indeed, in Uaters (12 Cat. 3d
at p. 11) the court emphasized that Vila recognized
this same implicit limitation when it held the supe-
rior court had jurisdiction to issue a mandatory in-
junction compelling a regulated water company to pro-
vide service in accordance with its schedule approved
by the comnission, because I1Existence and exercise of
this jurisdiction is in aid and not derogation of the
jurisdiction of the comnission.I8 [**7013 (233 Cal.
App. 2d at p. 479.) Putting the point another
way, the Vila court also observed that Valifornia
courts C***lWl have frequently proclaimed concurrent
jurisdiction in the superior court over controversies
between utilities and others not inimical to the pur-
poses of the Public Utility Act." ( Id. at p. 477,
italics added.)
Plaintiffs next seek to avoid the rule of Waters,
supra, 12 Cal. 3d 1, by contending that the decision
Page 29
13 Cal. 4th 893, *944; 920 P.2d 669, **701;
1596 Cal. LEXIS 4216, ***104; 55 Cal. Rptr. 2d 724
should be narrowly limited to its facts, i.e., that
it should apply only to a utility--like the telephone
company in that case--that had expressly limited its
liability for negligence by the terms of its tariff.
It is true that SDG&E is not such a uti 1 ity. But
nothing in Waters supports so narrow a reading of that
decision, and plaintiffs fail to explain why we should
so limit it now, over two decades after we adopted its
rule. [*9453
Instead, plaintiffs rely on three Court of Appeal
decisions holding that Waters did not bar the supe-
rior court action there in issue. But in each of
those cases the Court of Appeal applied the Waters
rule, and held that the superior court action was not
barred by section 1759 precisely because it would not
hinder or interfere with a broad regulatory policy of
the comnission. We have discussed two of [***lo53
the cases above. (Pt. 11, ante; Cellular Plus, Inc.
v. Superior Court, supra, 14 Cal. App. 4th 1224;
Stepak v. American Tel. 8 Tel. Co., supra, 186
Cal. App. 3d 633.) The third is Pierce v. Pacific
Gas 8 Electric Co. (1985) 166 Cal. App. 3d 68
C212 Cal. Rptr. 283, 60 A.L.R.4th 7091, a per-
sonal injury action brought by a homeowner who was
hurt when a defective transformer of a public util-
ity exploded and sent 7,000 volts of electricity into
house wiring designed to carry 120 volts. The Court
of Appeal reversed a judgment of nonsuit on a cause
of action for strict product liability. As a pre-
liminary matter, the court rejected (at p~. 77-78)
a contention that the superior court lacked jurisdic-
tion under the Waters rule simply because a general
regulation (Gen. Order No. 95) provides that elec-
tric supply systems shall be maintained in such a con-
dition as to give %afe@@ service and utilities shall
##exercise due care to reduce to a minimunIB the har-
ards from overhead wires. The ruling was correct:
the comnission had manifestly not determined that the
scientific evidence is insufficient to establish that
exploding transformers are a public health risk or
that [***lo61 defective transformers should not be
repaired. For the same reason the case is distin-
guishable from the matter before us.
By contrast, in two cases discussed above (pt.
11, ante) in which the Court of Appeal held the supe-
rior court action was barred under the rule of Waters,
the utilities had not limited their liability by their
tariffs--indeed, the cases had nothing to do with such
limitations of liability. ( Brian T. v. Pacific
Bell, supra, 210 Cal. App. 3d 894 [comnission pol-
icy on blocking sexually explicit recorded telephone
messages]; Schell v. Southern Cal. Edison Co.,
supra, 204 Cat. App. 3d 1039 [comnission policy
on rate schedules for baseline gas and electric ser-
vice to RV parks].) Plaintiffs# cramped reading of
Waters is untenable.
Plaintiffs next claim that the comnission itself
has conceded that it does not have the "expertise,
authority or exclusive jurisdiction*l to resolve the
medical and scientific question whether electric and
magnetic fields are hazardous to human health. As
purported evidence of this concession, plaintiffs re-
peatedly quote the following sentence from the 1990
comnission decision in Kramer-Victor, [***lo71 supra,
37 Cal.P.U.C.2d 413, 453, adding their own creative
emphasis: "We are no more able than any other gov-
errmental entity to make a final judgment based on
current information about the [*9461 potential for
health risk stemning from exposure to electromagnetic
fields." A glance at Kramer-Victor is enough to show
that plaintiffs wrench this quotation out of context.
As explained in our analysis of the case above (pt.
IV, ante), the comnission began its discussion of the
point by observing that Ilstudies to date allw one
to reach virtually any conclusiona1 as to whether such
fields pose a health risk. (37 Cal.P.U.C.2d at p.
452.) The comnission then refused to adopt stan-
dards prescribing maximun allowable field levels be-
cause "the information currently 1**7021 available is
insufficient to allow for this type of regulation.lI (
Id. at p. 453.) It was in that context--current
scientific uncertainty--that the comnission made the
statement now seized upon by plaintiffs.
When read in that context, it is obvious that the
statement was not--as plaintiffs repeatedly imply--
a dramatic confession of a lack of comnission ex-
pertise to %take a [***lo81 final judgment . . .
about the potential for health risk" from such fields.
Rather, the statement was a far more prosaic recog-
nition of the fact that neither the comnission nor
any other agency could make such a judgment "based on
current information,88 i.e., 18[blecause of the contin-
uing scientific uncertaintyo1 (37 Cal. P.U.C.Zd at p.
453), and would therefore have to take interim mea-
sures Wntil the scientific findings are more defini-
tive" (ibid.). The scientific research intended to
produce those findings, as we have seen, continues
apace.
Plaintiffs also make much of the fact that in its
1993 decision in Electric and Magnetic Fields, supra,
52 Cal.P.U.C.2d 1, the Emission reiterated that DHS
is "the state agency best equipped to assess the sci-
entific evidence" concerning the public health risks,
if any, arising from electric and magnetic fields
( id. at p. 81, and is "the appropriate agency
Page 30
13 Cal. 4th 893, *946; 920 P.2d 669, **702;
1996 Cal. LEXIS 4216, ***108; 55 Cal. Rptr. 2d 724'
to inform us8a about any such risks ( id. at p. ther research [***1111 is needed. In these circun-
27) and "the appropriate agency to define the re- stances, plaintiffs reason, a determination by the
search needed" to answer that question ( id. at p. superior court that such fields are dangerous, "based
28). Plaintiffs contend these quotations establish upon review of all applicable medical and scientific
that the comnission itself ##has expressly rejected literature, and informed by the expert opinion of EMF
any suggestion that [***lo91 it has the exclusive ju- scientists," would not conflict with any 84declared88
risdiction to resolve the health effects issue.11 policy of the comnission.
The comnission, however, has never claimed ei-
ther the sole authority or the sole expertise to de-
cide whether electric and magnetic fields cause ad-
verse "health effects." Its constitutional and statu-
tory powers to ensure that the service and faci li-
ties of regulated utilities pose no unreasonable dan-
ger to the public (see pt. I I I, ante) do not bar
it from enlisting the assistance of other state agen-
cies (or private contractors) in carrying out its
responsibilities. And when the issue is a poten-
tial cancer risk, DHS is a [*947l logical partner.
n31 The Legislature recognized as much when, as ex-
plained above (pt. IV, ante), it specifically di-
rected the comnission to enlist the cooperation of
DHS in identifying and then conducting high-priority
research projects in order '#to establish whether ex-
posure to electromegnetic fields caused by electri-
cal utility generating and transmission facilities
presents an unreasonable cancer risk" (Stats. 1988,
ch. 1551, 8 1, subd. (b), p. 5566). In these cir-
cunstances, the fact that the cannission has asked DHS
to manage the four-year research program that it or-
dered [***1101 into effect in 1993 as one component of
its general interim policy on this subject (Electric
and Magnetic Fields, supra, 52 Cal.P.U.C.2d 1, 21-22)
does not mean that it is not the comnissionls policy.
n31 Among its many public health responsibilities,
DHS is directed by statute to establish and op-
erate a statewide cancer-reporting system (Health
& Saf. Code, 8 103885) and to conduct lla pro-
gram of epidemiological assessments of the inci-
dence of cancer.8a (Id., 8 103875, subd. (a).)
Epidemiological studies, of course, are one of the
pri.ncipa1 methods of research into possible car-
cinogenic effects of electric and magnetic fields.
Plaintiffs next assert that their action would
not interfere with comnission policy on electric and
magnetic fields because the comnission has not made ala
final and conclusive determination'l that such fields
are in fact dangerous; rather, the comnission has
found only that the scientific evidence is insuffi-
cient to establish such fields are dangerous and fur-
The reasoning is unsound. After reviewing the
current scientific evidence the comnission has deter-
mined that it is not sufficient at this time to estab-
lish that electric and magnetic fields are dangerous,
and on that basis has adopted a detailed interim pol-
icy on the subject whose seven principal components
we have discussed above (pt. IV, ante) and need not
now repeat. A superior court determination that es-
sentially the same evidence is sufficient to answer
the question [**703] and that such fields are in fact
dangerous would plainly undermine and interfere with
that policy.
Apparently seeking to show that the scientific ev-
idence before the superior court would be signifi-
cantly different from that reviewed by the comnis-
sion, plaintiffs claim "There have been many pos-
itive studies of EMF-cancer [i.e., epidemiological
studies finding a [***1121 Inpositive associationu1 be-
tween such fields and cancer] reported in the sci-
entific literature since the 1993 PUC order [i.e.,
Electric and Magnetic Fields, supra, 52 Cal.P.U.C.2d
11.08 [*9481 Plaintiffs cite only one such study, how-
ever, a study reported in 1995 that found an in-
creased incidence of brain cancer (but no increase in
leukemia) among electric utility workers. (Savitz
& Loomis, Magnetic Field Exposure in Relation to
Leukemia and Brain Cancer Mortality Among Electric
Utility Workers (1995) 141 Am. J. Epidemiology 123.)
While interesting, the report of a single posi-
tive epidemiological study (or even a nMber of such
studies) in 1995 has not changed the broad scientific
consensus on which the comnission predicated its pol-
icy decision in 1993: for example, in the same year
(1995) at Least three noteworthy expressions of that
consensus reiterated the view that the scientific ev-
idence is still insufficient to establish that elec-
tric and magnetic fields are a health hazard. First,
a report prepared by Oak Ridge National Laboratory and
published by the National Institute of Environmental
Health Sciences and the United States Department
of Energy stated that [***1131 We do not know at
this point whether EMF exposure from power frequency
sources constitutes a health hazard. Therefore, we
cannot determine levels of exposure which are 'safe'
or 'unsafe.' (NIEHS & USDE Q&A, supra, p. 29.)
Page 31
13 Cal. 4th 893, *948; 920 P.2d 669, **703;
1996 Cal. LEXIS 4216, ***113; 55 Cal. Rptr. 2d R4
I
Second, the American Physical Society 1-32 recently
issued a formal statement declaring that "The scien-
tific literature and the reports of reviews by other
panels show no consistent, significant link between
cancer and pouer line fields. . . . Uhile it
is inpossible to prove that no deleterious health ef-
fects occur from exposure to any environmental fac-
tor, it is necessary to demonstrate a consistent, sig-
nificant, and causa[ relationship before one can con-
clude that such effects do occur. From this stand-
point, the conjectures relating cancer to power line
fields have not been scientifically substantiated."
<Council of Am. Physical Society, Power Line Fields
and Public Health (April 1995).) Third, the American
Medical Association (AHA) likewise adopted a pol-
icy statement declaring that the association %ill
continue to monitor developments and issues relat-
ing to the effects of electric and magnetic fields,
even though no scientifically docunented health risk
C***1141 has been associated with the usually occur-
ring levels of electromagnetic fields; . . . .I8
CAM Policy Compendim (1995) Policy No. 460.938,
italics added.) n33
n32 The American Physical Society is a nonprofit
scientific and educational 'organization. It is
the principal membership body of physicists in the
United States, representing over 43,000 physicists
in academia, industry, and goverrment.
n33 The same conclusion is expressed in an ami-
cus curiae brief filed in this court by 17 promi-
nent physicists, epidemiologists, biochemists, and
physicians, including among their mmber 6 Nobel
laureates.
Plaintiffs also stress that the comnission has not
expressly prohibited utilities from taking steps to
mitigate electric and magnetic fields arising from
existing powerlines. But as we have seen, the com-
mission has repeatedly declared, as an element of its
general policy on such fields, that unless t*9491 and
until it issues new regulations providing otherwise
utilities are not required to C***1153 take any steps
to reduce field levels from existing powerlines. A
superior court action requiring a regulated utility
to take such a step would plainly undermine and in-
terfere with that policy.
Plaintiffs next claim the cmission has not in
fact adopted a uniform statewide policy on electric
and magnetic fields, but has left this crucial matter
to the discretion of the individual utilities. They
premise this claim on a portion of the comnission's
1993 decision on the subject (Electric and Magnetic
Fields, supra, 52 Cal.P.U.C.2d 1, 10-11) in which the
comnission discussed a proposal by the utilities to
authorize them to adopt Idesign guidelines" to fol-
low in mitigating [**7041 electric and magnetic field
levels from new powerline facilities. Plaintiffs
seize on the fact that the utilities argued to the
comnission that uniform guidelines applying to all
projects and all utilities would not be feasible be-
cause exceptions might be justified for some projects
and the utilities do not all use the same engineering
design methods.
The point lacks merit on two grounds. First,
although it agreed in principle to the idea of de-
sign guidelines drafted by the utilities, t***1161
the comnission made it clear that in practice they
were to be as uniform as possible: "Although each
utility may have unique engineering designs, there
should be a concerted attempt to standardize EMF de-
sign guidelines to the maximm extent possible. The
policies we outline in this decision have as one of
their goals the standardization, to the extent pos-
sible, across the state of utility EMF policies.Il
(Electric and Magnetic Fields, supra, 52 Cal.P.U.C.2d
1, 11 .) Second, as we have seen (pt. IV, ante),
the comnission's order on such guidelines was merely
one of at least seven components of a general pol-
icy on powerline electric and magnetic fields that it
adopted in its 1993 decision and that was expressly
intended to be uniform and statewide in application.
The comnission retains, of course, the ultimate au-
thority to regulate the siting and design of power-
lines, whether for the purpose of mitigating elec-
tric and magnetic field levels or for any other pub-
lic safety reason: as the comnission stated in its
1994 decision quoted above, the utilities must follow
its current mitigation policy Wntil such time as the
Comnission issues new guidelines . . . .I1 (Rules
Applicable [***1171 to Transmission Lines, supra, 55
Cal.P.U.C.2d at p. 100.)
Plaintiffs also assert that "This is not a case
where the plaintiffs are claiming damages from an ex-
isting power line which the utility did nothing to al-
ter or upgrade." Rather, plaintiffs emphasize that in
1990 SDGBE upgraded the powerlines here in issue, in-
creasing the electric and magnetic P9501 field lev-
els on their property. On this basis they contend
the present action would be "in aid and not in dero-
gation of the jurisdiction of the cOmnissionI8 (Vila,
supra, 233 Cal. App. 2d at p. 479) because
it would further the comnission's policy of requir-
Page 32
13 Cal. 4th 893, *950; 920 P.2d 669, **704;
1996 Cat. LEXIS 4216, ***117; 55 Cal. Rptr. 2d 724
ing utilities to take no-cost or Lou-cost steps to
mitigate electric and magnetic fields arising from
new or upgraded projects. The point lacks merit.
As we have seen, the comnission adopted the forego-
ing policy in general terms in Kramer-Victor, supra,
37 Cal.P.U.C.2d 413, 453, and in specific terms in
Electric and Magnetic Fields, supra, 52 Cal.P.U.C.2d
1, 9, and in so doing both decisions expressly ex-
cluded "existing facilities." Here the 1990 upgrade
of SDG&EIs powerlines took place before those deci-
sions were rendered; with respect 1***1181 to those
decisions, therefore, the powerlines in question were
an laexisting facility." 1-84
n34 We need not consider at any length plain-
tiffs' argunent that the cited comnission deci-
sions should not be applied 18retroactively.n1 As
SDG&E correctly points out, if that argunent were
accepted the comnission's distinction between new
and 81existing11 facilities would be meaningless be-
cause there would be no 81existing11 facilities as
of the date each decision was rendered.
Apparently seeking to avoid this result, plain-
tiffs again change their theory and now contend that
although the comnission did not require SDGE to mit-
igate electric and magnetic field levels when it up-
graded its powerlines in 1590, a jury could never-
theless find it %egligent88 for not doing so. The
claim is untenable. There is no suggestion of this
theory in the complaint. n35 But even if we assune
arguendo that plaintiffs could amend their complaint
to allege such %egligence,al an award of damages on
that theory would plainly undermine the comnissionls
C***1191 policy by holding the utility liable for not
doing what the comnission has repeatedly determined
that it and all similarly situated utilities were not
required to do.
1-85 It will be remembered that the only counts
based on negligence alleged in the conplaint are
negligent infliction of emotional distress (count
3) and negligent product liability (count 5), both
of which are causes of action for personal injury
rather than property damage.
Finally, plaintiffs contend that to bar their su-
perior court action under section 1759 as construed in
Waters, supra, 12 Cal. 3d 1, 114 C**7051 Cat. Rptr.
2d 753, 523 P.2d 1161, will deprive them of three con-
stitutional rights. No such deprivations appear.
First, plaintiffs contend they will be denied
their right to "just (U.S. Const., 5th Amend.; Cal. Const., art. I, 5 19) because the can-
mission has no pouer to award damages. But as ex-
plained above (pt. V.4., ante), plaintiffs do not
and cannot allege a "taking or damagingo1 1***1201 of
their property that is a constitutional prerequisite
to such compensation on an inverse condennation the-
ory.
Second, plaintiffs assert that the comnission
failed to give them their due process rights of no-
tice and opportunity to be heard 88and to object to
any [*9511 application of the 1cmission~sl orders
to their property.ll The point is untenable. We assune
that plaintiffs are referring to the comnission "or-
ders" that resulted from its 1991 order instituting
investigation into powerline electric and magnetic
fields (011 No. 91-01-012) and its 1993 interim de-
cision on that subject (Electric and Magnetic Fields,
supra, 52 Cal.P.U.C.2d 1). However, those proceed-
ings were not quasi-judicial but quasi-legislative
in character, designed not to adjudicate individual
rights and obligations but to develop a legistative
record and adopt a general policy or promulgate gen-
eral regulations. "There is no constitutional re-
quirement for any hearing in a quasi legislative pro-
ceeding.l ( Franchise Tax Board v. Superior Court
(1950) 36 Cal. 2d 538, 549 1225 P.2d 9051 .I A
fortiori, there is no constitutional requirement that
all private parties who might conceivably be affected
[***1213 by the outcome of such a proceeding be given
notice and opportunity to be heard.
Third, plaintiffs complain they were denied their
right to jury trial, apparently referring to their
right to receive Iljust compensation, ascertained by a
jury unless waived . . . .Ig (Cal. Const., art.
1, 5 19.) But as we reaffirmed in Hensler v. City
of Glendale (1994) 8 Cal. 4th 1, 15 132 Cal. Rptr.
2d 244, 876 P.2d 10431, "the right to jury trial ap-
plies in inverse condennation actions, but that right
is limited to the question of damages.Il There is no
right to jury trial on the issue whether there has
been a taking in the first instance.
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Uerdegar,
J., Chin, J., and Broun, J., concurred.