We asked parties to consider the merits of the Commission delegating to administrative law judges, the Director of the Energy Division, or the Executive Director the authority to issue a temporary restraining order to stop an ongoing violation that is causing irreparable harm. This is a temporary remedy, intended to preserve the status quo while the Commission considers whether to impose more permanent restraint.
Most parties appear to recognize the Commission's general authority to issue orders enjoining utilities from doing specified things. The Commission has issued injunctive relief in past cases and its authority to do so has been recognized by the California Supreme Court (Consumers Lobby Against Monopolies v. Public Utilities Commission, 25 Cal. 3d 891, 907 (1979); Motor Transit Co. V. Railroad Commission, 189 Cal. 573, 582 (1922)). Most recently, this authority was recognized by the Legislature in Senate Bill (SB) 779. (see PU Code § 311(g)(2), wherein the Commission is authorized to reduce or waive a 30-day comment period for an order seeking temporary injunctive relief.)
From time to time, administrative law judges have issued temporary restraining orders in complaint cases (see, e.g., Systems-Analysis & Integration, Inc. v. Southern California Edison, D.96-12-023). At issue is whether it is lawful for the Commission to delegate the issuance of temporary restraining orders to administrative law judges or others, and whether it is advisable to expressly delegate such authority to aid in the enforcement of the affiliate transaction rules.
San Diego Gas & Electric Company and Southern California Gas Company (SDG&E/SoCalGas) state that temporary restraining orders should be adopted as the preferred remedy in appropriate cases, arguing that the proper use of temporary restraining orders will tend to diminish utility liability and reduce fines. SDG&E/SoCalGas suggest that the determination of the need for a temporary restraining order be delegated to an administrative law judge, since it is necessary to make a preliminary legal and factual determination. Since requests for such relief are most likely in the context of complaint proceedings, which are normally assigned to administrative law judges, SDG&E/SoCalGas suggest that they are the most appropriate personnel to handle the requests. The Joint Petitioners reach similar conclusions.
Southwest Gas argues that, despite the Commission's broad delegation of equitable powers and remedies, it cannot apply them without taking official action in the form of a vote of a majority of the commissioners. Therefore, the company asserts, the authority to issue a temporary restraining order cannot be delegated to any one individual. While we agree that final decisions of the Commission require an affirmative vote of the Commission in the presence of a quorum, this requirement does not preclude the Commission from making a reasonable delegation of authority to other officers of the Commission. For example, the Commission has delegated to its Executive Director the authority to grant extensions of time to comply with Commission orders (Rule 48(b) of the Commission's Rules of Practice and Procedure). This delegation is a practical necessity, since requests for time extensions often must be processed very quickly. Parties face potential sanctions for noncompliance if they fail to receive an extension on a timely basis. By its very nature, a temporary restraining order is a quick response that is applied when timing is a critical factor. In some instances, it may be necessary to issue a temporary restraining order to preserve the Commission's decision-making options.
Section 2102 directs the Commission to have its attorney seek injunctive relief in superior court when a utility refuses to comply with a Commission order. PG&E cites this section to support its position that the only person to whom the Commission can delegate injunctive powers is its attorney. PG&E's argument confuses two different needs. One is the need to instruct a regulated utility as to the things it can and cannot do. Sometimes this will involve granting a utility permission to do something, and sometimes this will involve directing a utility to stop doing something. These decisions are the Commission's responsibility, in the context of its constitutional and statutory authority. The other is the need to gain enforcement of Commission orders when a utility refuses to comply with a Commission order. These enforcement actions must be taken by the superior court. It is the latter action that must be initiated by the Commission's attorney, pursuant to § 2102.
Edison points out that in several places, the PU Code refers to the Commission's authority to issue "cease and desist" orders. The company then concludes that the Legislature must have meant for the terms "cease and desist" and "temporary restraining order" to have different meanings, otherwise it would not have used these different terms in different parts of the code. The implication is that the Legislature envisions the Commission issuing cease and desist orders, but not issuing temporary restraining orders. However, the Legislature has not explained the difference between these terms, and neither has Edison.
It is important to emphasize that the remedy we are discussing here may not precisely resemble the equitable chain of remedies applied in the civil context, running from temporary restraining orders, through preliminary injunctions to permanent injunctions. And it may not precisely resemble whatever option goes by the name of "cease and desist." Simply, we are stating that the Commission is empowered to direct a utility to stop doing something that is inconsistent with the law or our rules. Without this authority, the Commission would barely be in the business of regulating utilities or otherwise protecting the public interest. We use a term such as "temporary restraining order" because it identifies a point in time: when a likely violation has been uncovered and it is necessary to temporarily preserve the status quo. We rely on standards similar to those usually applied to the consideration of a request for a temporary restraining order in civil court because those standards require sober reflection before granting such a request. In undertaking our responsibilities, we will try to avoid stumbling over language and focus on responsibly achieving outcomes.
It remains for the Commission to develop the best and fairest method for identifying time-sensitive, inappropriate activities and ensuring that they are quickly remedied. In most instances, the Commission can respond directly to problems raised in formal complaints. There may be circumstances, however, in which the time that it would take to get a matter on a regular agenda or to bring together an emergency meeting of the Commission is too great to preserve the rights of the parties. In those instances, we look to our assigned administrative law judges to take the steps necessary to preserve those rights by issuing temporary restraining orders. We do so, however, with the goal of protecting due process and ensuring that the ultimate disposition of each such complaint remains in the hands of the Commission.
As SDG&E/SoCalGas points out, there is a firm body of law establishing the appropriate test for the issuance of a temporary restraining order. This standard should be applied to a request for a temporary restraining order whether the request is considered by an administrative law judge or by the full Commission:
1. The moving party must be reasonably likely to prevail on the merits.
2. Such relief must be necessary to avoid irreparable injury.
3. A temporary restraining order must not substantially harm other parties.
4. Such relief must be consistent with the public interest.
A temporary restraining order issued by an administrative law judge will only stay in effect until the end of the day of the next regularly scheduled Commission meeting at which the Commission can extend the temporary restraining order or consider an order seeking a preliminary injunction. The subject utility must have an opportunity to be heard prior to the issuance of a preliminary injunction. If the Commission declines to extend the temporary restraining order or issue a preliminary injunction, the temporary restraining order will be immediately lifted. Whether or not a temporary restraining order of a preliminary injunction is issued, the underlying complaint may still move forward.
In assessing fines, SDG&E/SoCalGas would have the Commission take into consideration whether a party had evidence of recurring violations that it failed to bring to the attention of the utility or the Commission. In effect, a complainant would have the burden of explaining why it failed to seek injunctive relief, where appropriate. We will not adopt this suggestion because it is the violating party, not the complainant, that bears full responsibility for the consequences of a violation of the rules.
