Cmtys. for a Better Env't v. Energy Res. Conservation & Dev. Comm'n, A157299

CourtCalifornia Court of Appeals
Writing for the CourtTUCHER, J.
Citation271 Cal.Rptr.3d 750,57 Cal.App.5th 786
Decision Date20 November 2020
Docket NumberA157299

57 Cal.App.5th 786
271 Cal.Rptr.3d 750

COMMUNITIES FOR A BETTER ENVIRONMENT et al., Plaintiffs and Respondents,


Court of Appeal, First District, Division 4, California.

Filed November 20, 2020
As Modified November 23, 2020
As Modified on Denial of Rehearing December 8, 2020

California Energy Resources Conservation and Development Commission, Darcie L. Houck, Chief Counsel, William M. Chamberlain, Chief Counsel, retired; Xavier Becerra, Attorney General; Robert W. Byrne, Senior Assistant Attorney General; Myung J. Park, Supervising Deputy Attorney General; Bryant Cannon, Marc. N. Melnick, Deputy Attorneys General for Defendant and Appellant

Ellison Schneider Harris & Donlan LLP, Christopher T. Ellison, Sacramento, for Ellison Schneider Harris & Donlan LLP and Independent Energy Producers Association as Amici Curiae on behalf of Defendant and Appellant

California Independent System Operator Corp., Roger E. Collanton, Folsom, William H. Weaver, for California Independent System Operator Corporation as Amici Curiae on behalf of Defendant and Appellant

EarthJustice, Stacey P. Geis, Gregory D. Muren; Communities for a Better Environment, Shana Lazerow, Oakland, for Plaintiffs and Respondents


271 Cal.Rptr.3d 753
57 Cal.App.5th 791

Nonprofit environmental groups Communities for a Better Environment and Center for Biological Diversity bring a constitutional challenge to Public Resources Code section 25531 ( section 25531 ), a statute that limits judicial review of decisions by the Energy Resources Conservation and Development Commission (Energy Commission) on the siting of a thermal powerplant.

There are two aspects to Plaintiffs’ challenge. Section 25531, subdivision (a) ( section 25531(a) ) provides that an Energy Commission siting

57 Cal.App.5th 792

decision is "subject to judicial review by the Supreme Court of California." Plaintiffs contend this provision abridges the original jurisdiction of the superior courts and courts of appeal over mandate petitions, as conferred on them by Article VI, section 10 of the California Constitution. Plaintiffs also challenge section 25531, subdivision (b) ( section 25531(b) ), which provides that findings of fact in support of an Energy Commission siting determination "are final." This provision allegedly violates the separation of powers doctrine by depriving courts of their essential power to review findings of an administrative agency. (See Cal. Const., Art. III, § 3 ; Art. VI, § 1 ; all references to "Articles" are to the California Constitution.) The trial court agreed with Plaintiffs on both points and granted them summary judgment.

On appeal, the Energy Commission makes two arguments as to why section 25531(a) is a proper exercise of the Legislature's power to limit judicial review of Energy Commission siting decisions. The commission first argues that Article VI, section 10 confers original jurisdiction on the Supreme Court, courts of appeal, and superior courts collectively, subject to legislative direction that a particular court should hear a particular kind of dispute. In the alternative, the commission urges us to uphold section 25531 under the broad authority the constitution gives the Legislature over decisions of the Public Utilities Commission (PUC), an agency that plays a closely related role in regulating electric utilities. (See Art. XII, § 5.) Indeed, the California Supreme Court upheld on this basis an earlier version of section 25531 in County of Sonoma v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 220 Cal.Rptr. 114, 708 P.2d 693 ( County of Sonoma ), and the commission insists that precedent controls this case.

The Energy Commission also argues that the trial court erred by declaring section 25531(b) unconstitutional on its face. This challenge should have been rejected because section 25531(b) can be interpreted as permitting courts to test the underpinnings of an Energy Commission siting decision under the substantial evidence test, the commission contends.

We reject the Energy Commission's arguments. First, we conclude the constitutional grant of original jurisdiction in Article VI includes the superior courts and courts of appeal and may not be circumscribed by statute, absent some other provision in the constitution empowering the Legislature to take such action. Second, we determine that legislative amendments to section 25531 in the years since County of Sonoma was decided have broken the once-tight link between the regulatory authority of the PUC and powerplant siting decisions of the Energy Commission, such

271 Cal.Rptr.3d 754

that the plenary power Article XII grants the Legislature over activities of the PUC no longer authorizes section 25531(a). As to section 25531(b), we conclude this provision violates the judicial powers clause by preventing courts from reviewing

57 Cal.App.5th 793

whether substantial evidence supports the Energy Commission's factual findings. We therefore affirm the judgment.


I. The Energy Commission's Regulatory Function and Powers

For context, we begin with a brief overview of the Energy Commission's regulatory authority under the Warren-Alquist State Energy Resources Conservation and Development Act (the Warren-Alquist Act). ( Pub. Resources Code, § 25000 et seq. )

In 1974, the Legislature passed the Warren-Alquist Act to establish and consolidate the state government's responsibility for energy resources—responsibilities that include maintaining a reliable supply of electrical energy to meet public need and regulating electrical generating and transmission facilities. ( Department of Water & Power v. Energy Resources Conservation & Development Com. (1991) 2 Cal.App.4th 206, 214, 3 Cal.Rptr.2d 289.) The Warren-Alquist Act created the Energy Commission, tasking it with "establishing the state's energy policy and ‘insuring adequate electricity supplies with minimum adverse effect on the state economy and environment.’ " ( Ibid ; see Pub. Resources Code, § 25200.)

The Warren-Alquist Act "mandates simplified and expedited processing and review of applications to certify the siting, construction, and modification of thermal powerplants." ( Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 517, 128 Cal.Rptr.3d 658, 257 P.3d 81.) To that end, the Energy Commission exercises " ‘exclusive power to certify all sites and related facilities’ for thermal powerplants with generating capacities of 50 or more megawatts." ( Ibid . ) Acting as a sort of one-stop shop, the Energy Commission certifies any new construction of, or modification to, such a thermoelectric powerplant, whether the plant is built by a large investor-owned utility, an independent power producer, a private power user, or a municipality. "The issuance of a certificate by the commission shall be in lieu of any permit, certificate, or similar document required by any state, local or regional agency, or federal agency to the extent permitted by federal law, for such use of the site and related facilities." ( Pub. Resources Code, § 25500.)

There is a separate certification process required, however, when it is a public utility seeking to build a powerplant. The PUC is "charged with ensuring that public utilities ‘furnish and maintain such ... service, instrumentalities, equipment, and facilities ... as are necessary to promote’ " public safety and convenience. (

57 Cal.App.5th 794

Utility Consumers’ Action Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 695, 114 Cal.Rptr.3d 475, quoting Pub. Util. Code, § 451.) Absent an exception, a public utility may therefore not begin construction of a new facility or "any extension thereof, without having first obtained from the [PUC] a certificate that the present or future public convenience and necessity require or will require such construction." ( Pub. Util. Code, § 1001.) And, the public utility may not secure this Certificate of Public Convenience and Necessity (need certificate) from the PUC until after it obtains a site certificate from the Energy Commission. ( Pub. Util. Code, § 1002, subd. (b).)

Since its inception, the Warren-Alquist Act has restricted judicial review of Energy

271 Cal.Rptr.3d 755

Commission powerplant certification decisions. ( Voices of the Wetlands, supra , 52 Cal.4th at p. 517, 128 Cal.Rptr.3d 658, 257 P.3d 81.) When section 25531 was first adopted, it provided that Energy Commission decisions "on any application of any electric utility for certification of a site and related facility shall be subject to judicial review in the same manner as the decisions of the Public Utilities Commission on the application for a Certificate of Public Convenience and Necessity for the same site and related facility." (Stats. 1974, ch. 276, § 2, pp. 501, 532; see Voices of the Wetlands, at p. 517, fn. 9, 128...

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