Modification: Communities for a Better Environment v. Energy Resources

COMMUNITIES FOR A BETTER ENVIRONMENT, et al.

Plaintiffs and Respondents,

v.

ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION,

Defendant and Appellant.

No. A157299

(Alameda County Super. Ct. No. RG13681262)

California Courts of Appeal

First Appellate District

Division Four

Filed December 8, 2020

ORDER MODIFYING OPINION; AND ORDER DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT^*: 

It is ordered that the opinion filed herein on November 20, 2020, be modified in the following particulars:

1. On page 5, on line 8, the word "electrical" in the quoted text is deleted and replaced with the word "electric".

2. On page 5, starting on line 16, the sentence beginning "However, by its own terms" is deleted and replaced with the following sentence:

However, by its own terms the original section 25531 applied only to site certification decisions for powerplants that also required a need certificate from the PUC, so Energy Commission decisions on other applications (e.g., from a municipality) would have been subject to judicial review the conventional way, by writ of mandate in the superior court.

3. On page 22, on lines 14 and 15, the words "section 1660.8" are deleted and replaced with the words "section 1160.8".

4. On page 27, line 16, the words "section 22531(a)" are deleted and replaced with the words "section 25531(a)".

5. On page 33, the following text is added to the end of the paragraph immediately after the citation "(Communities I, supra, 19 Cal.App.5th at pp. 738-740.)":

Section 25531(a) is unconstitutional in its entirety because it is no longer narrowly tailored to expediting review of Energy Commission decisions that are prerequisite to PUC decisionmaking. (Cf. County of Sonoma, supra, 40 Cal.3d at p. 370.) The happenstance that on rare occasions an Energy Commission site certification may still be statutorily required before the PUC can issue a need certificate to an investor-owned utility does not defeat a facial challenge.

6. On page 35, line 4, the words "section 23531(b)" are deleted and replaced with the words "section 25531(b)".

7. On page 35, line 19, the words "section 22531(b)" are deleted and replaced with the words "section 25531(b)".

8. On page 37, a new footnote 9, is added to the end of the paragraph, immediately after the sentence "The Energy Commission misreads Southern Pacific." The text of footnote 9 reads:

⁹ In the trial court, the Energy Commission also offered to stipulate "that review of its power plant decisions may include an inquiry into whether substantial evidence supports its findings,"~(1 AA 84)~ but this offer, too, falls short. We note that "may include" is ambiguous as to what it requires of courts, and that we need not accept a stipulation at odds with the plain meaning of the statute.

These modifications do not effect a change in the judgment.

Appellant's petition for rehearing is denied.

^* Streeter, Acting P.J., Tucher, J. and Brown, J. participated in the decision.