Communities for a Better Environment v. Energy Resources etc.

Filed 11/20/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

COMMUNITIES FOR A BETTER
ENVIRONMENT et al.,
Plaintiffs and Respondents, A157299

v. (Alameda County
ENERGY RESOURCES Super. Ct. No. RG13681262)
CONSERVATION AND
DEVELOPMENT COMMISSION,
Defendant and Appellant.

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
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

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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 (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.

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 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 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 whether substantial evidence supports the Energy Commission’s
factual findings. We therefore affirm the judgment.
BACKGROUND
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.) The Warren-Alquist Act
created the Energy Commission, tasking it with “establishing the state’s
energy policy and ‘insuring adequate electricity supplies with minimum

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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.) 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. (Utility Consumers’ Action Network v. Public
Utilities Com. (2010) 187 Cal.App.4th 688, 695, 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

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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 Commission powerplant certification decisions. (Voices of
the Wetlands, supra, 52 Cal.4th at p. 517.) When section 25531 was first
adopted, it provided that Energy Commission decisions “on any application of
any electrical 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.)
At that time, the Public Utilities Act provided “for exclusive Supreme Court
review” of decisions and orders of the PUC. (Ibid.) Therefore, section 25531
as originally enacted restricted judicial review of these Energy Commission
siting decisions to the California Supreme Court. (Ibid.) However, by its own
terms the original section 25531 applied only if the applicant was an
“electrical utility,” so Energy Commission decisions on other applications—
from, say, a private power producer or municipality—would have been
subject to judicial review the conventional way, by writ of mandate in the
superior court. (See County of Sonoma, supra, 40 Cal.3d at pp. 365–366
[“general judicial review provision,” Pub. Resources Code, § 25901, applies
except on site certification decisions for powerplants “that also must be
certified by the PUC”].)
In 1996, the Legislature amended the Public Utilities Code to provide
for judicial review of PUC decisions by either the Supreme Court or the
courts of appeal. (Voices of the Wetlands, supra, 52 Cal.4th at p. 517, fn. 9.)

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Under the unamended language of former section 25531, the automatic result
of this change was that judicial review of Energy Commission siting decisions
on applications from electrical utilities expanded to include writ review in the
courts of appeal as well as the Supreme Court. (Voice of Wetlands, at p. 517;
former § 25531, subd. (a); Pub. Util. Code, § 1759, subd. (a).) However, in
2001, the Legislature adopted an emergency amendment to section 25531
giving only the Supreme Court jurisdiction to review all Energy Commission
powerplant certification decisions. (Voices of the Wetlands, at p. 517.)
Currently, section 25531(a) states: “The decisions of the commission on
any application for certification of a site and related facility are subject to
judicial review by the Supreme Court of California.” This review is exclusive,
as “no court in this state has jurisdiction” otherwise to entertain such
challenges. (§ 25531, subd. (c).) Pursuant to section 25531(b), the Supreme
Court’s “review shall not be extended further than to determine whether the
commission has regularly pursued its authority, including a determination of
whether the order or decision under review violates any right of the
petitioner under the United States Constitution or the California
Constitution. The findings and conclusions of the commission on questions of
fact are final and are not subject to review, except as provided in this article.
These questions of fact shall include ultimate facts and the findings and
conclusions of the commission.” (§ 25531(b).)
II. The Present Action
In May 2013, Plaintiffs filed a complaint for declaratory and injunctive
relief against the Energy Commission and other Doe defendants.1 Their first
two causes of action are facial challenges to the constitutionality of section

1At some point, the State Controller was named as a defendant but
was dismissed from the case prior to summary judgment proceedings.

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25531. Plaintiffs allege that section 25531(a) unconstitutionally restricts “the
powers of the superior and appellate courts” to hear citizen challenges to
Energy Commission decisions, and that section 25531(b) unconstitutionally
restricts “a court’s ability to review the facts in such challenges.” In a third
cause of action, Plaintiffs allege that funds expended by the Energy
Commission to implement these provisions constitute illegal expenditures
under Code of Civil Procedure section 526a, but this claim was later deemed
dismissed and is not at issue in this appeal.
In 2014, the trial court dismissed the action after sustaining the
Energy Commission’s demurrer to Plaintiffs’ complaint without leave to
amend, but that judgment was subsequently reversed by a different panel of
this court. (Communities for a Better Environment v. State Energy Resources
Conservation & Development Com. (2017) 19 Cal.App.5th 725 (Communities
I).) This court held the trial court erred in concluding that Plaintiffs’ claims
did not arise out of an actual controversy and were not ripe for review. We
found the dispute between the parties sufficiently concrete to make
declaratory relief appropriate and concluded withholding judicial
consideration would result in hardship. (Id. at p. 733–738.) We emphasized
that the factual context of an individual Energy Commission certification
proceeding is not necessary nor “even useful” to a proper resolution of the
constitutional issues raised. (Id. at p. 735.)
In August 2018, Plaintiffs filed a motion for summary judgment. Two
months later, the Energy Commission filed a cross-motion for summary
judgment or summary adjudication. The trial court held a hearing on both
motions and, on April 2, 2019, granted Plaintiffs’ and denied the Energy
Commission’s, explaining its rulings in a carefully reasoned order. Before
addressing constitutional issues, the court found that Plaintiffs had

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established standing, that the constitutionality of a statute may be the proper
subject of a claim for declaratory relief, and that these legal issues could be
resolved on summary judgment. On the merits, the court found that section
25531(a) is an unconstitutional legislative abridgment of the jurisdiction of
the courts and that section 25531(b) unconstitutionally abridges the courts’
essential power to review agency findings.
DISCUSSION
Trial court rulings on motions for summary judgment are reviewed de
novo. (California Society of Anesthesiologists v. Brown (2012) 204
Cal.App.4th 390, 399.) Moreover, “ ‘ “[t]he interpretation of a statute and the
determination of its constitutionality are questions of law,” ’ ” subject to de
novo review. (Samples v. Brown (2007) 146 Cal.App.4th 787, 799; see also
DiCarlo v. County of Monterey (2017) 12 Cal.App.5th 468, 489.) Thus, we
independently review the issues on appeal.
I. Section 25531(a) Unconstitutionally Abridges the Courts’
Original Jurisdiction
The Energy Commission first contends the trial court erred in finding
that section 25531(a) unconstitutionally divests superior courts and courts of
appeal of jurisdiction to review Energy Commission siting decisions.2
According to the Energy Commission, our state Constitution empowers the
Legislature to decide which court has jurisdiction to review an agency’s
administrative rulings.
A. Constitutional Framework
The original jurisdiction of the courts is conferred by Article VI, section
10, which states, in part: “The Supreme Court, courts of appeal, superior

2 The Energy Commission’s defense of section 25531(a) is echoed by
amici curie, Independent Energy Producers Association, Ellison Schneider
Harris & Donlan LLP and Independent System Operator Corporation.

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courts, and their judges have original jurisdiction in habeas corpus
proceedings. Those courts also have original jurisdiction in proceedings for
extraordinary relief in the nature of mandamus, certiorari, and prohibition.
The appellate division of the superior court has original jurisdiction in
proceedings for extraordinary relief in the nature of mandamus, certiorari,
and prohibition directed to the superior court in causes subject to its
appellate jurisdiction. [¶] Superior courts have original jurisdiction in all
other causes.” (Italics added.)
Because this grant of jurisdiction is conferred on courts by the
Constitution, it “may not be diminished by statute.” (California
Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 252 (Matosantos).)
This maxim is enshrined by more than one hundred years of precedent. (See
Chinn v. Superior Court (1909) 156 Cal. 478, 480 [“where the judicial power
of courts, either original or appellate, is fixed by constitutional provisions, the
legislature cannot either limit or extend that jurisdiction”]; Gerawan
Farming, Inc. v Agricultural Labor Relations Bd. (2016) 247 Cal.App.4th 284,
294 (Gerawan Farming) [Legislature does not have power to “defeat or
impair” the courts’ jurisdiction].)
This tenet is subject to an important caveat: the Legislature may limit
judicial review of an administrative decision when such action is authorized
by some other provision of the Constitution. (Pacific Telephone and
Telegraph Co. v. Eshleman (1913) 166 Cal. 640, 652 & 689 (Eshleman)
[Legislature may not curtail the jurisdiction vested in superior courts by the
constitution unless the constitution itself gives the Legislature such power];
Great Western Power Co. v. Pillsbury (1915) 170 Cal. 180, 182–183 (Great
Western Power) [“in the absence of some special constitutional authorization,”
Supreme Court’s jurisdiction may “not be take away or impaired by

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legislative act”]; Gerawan Farming, supra, 247 Cal.App.4th at p. 294
[“statutes barring judicial review of certain administrative decisions except in
the Courts of Appeal and/or Supreme Court have been upheld, but only where
the Legislature’s authority to enact such laws was found to be expressly or
impliedly granted by other constitutional provisions”].)
Using these principles to frame our review, we employ a two-prong
inquiry: Does section 25531(a) divest superior courts and courts of appeal of
original jurisdiction conferred on them in Article VI, section 10? If so, does
another provision of the constitution, specifically Article XII, section 5,
empower the Legislature to take such action?
B. Section 25531(a) Divests Superior Courts and Courts of
Appeal of Their Article VI Original Jurisdiction
Our answer to the Energy Commission’s first challenge is informed by
a century of California Supreme Court jurisprudence, as section 25531(a) is
not the Legislature’s first attempt to confine a category of extraordinary writ
proceedings to a specific level of our court system. (See, e.g., Eshleman,
supra, 166 Cal. at p. 652; Great Western Power, supra, 170 Cal. at pp. 182–
183; Matosantos, supra, 53 Cal.4th at p. 252.) Unperturbed by this wall of
precedent refusing to allow the Legislature to divest our courts of original
jurisdiction without independent authority elsewhere in the Constitution, the
Energy Commission posits that Article VI, section 10 itself empowers the
Legislature to decide which court has original jurisdiction over extraordinary
writ proceedings. The Energy Commission contends its construction of
Article VI, section 10 is compelled by the text of the constitutional provision,
its legislative history, and pertinent case authority. We disagree.
1. The text of the constitutional provision
On its face, Article VI, section 10 states that the Supreme Court, courts
of appeal “and” superior courts all have “original jurisdiction” over

10
extraordinary writ proceedings, and also that the superior courts have
original jurisdiction in “all other causes.” Giving this language its plain
meaning would indicate that all three levels of our state court have original
jurisdiction in all extraordinary writ proceedings. To the extent this
language “is clear and unambiguous,” its “plain meaning governs.” (Silicon
Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority
(2008) 44 Cal.4th 431, 444–445.)
The Energy Commission argues that the meaning of Article VI, section
10 is not apparent from its language because it does not expressly delineate
which level of the court functions as the court of first resort in extraordinary
writ proceedings, nor does the provision specify “what the Legislature can or
cannot do.” According to the commission, this silence “provides ambiguity
about whether the Legislature can” enact statutes specifying which court
may exercise its original jurisdiction to decide a given matter. To resolve this
perceived ambiguity, the Energy Commission proposes that the term “and” as
used in section 10 should be defined to mean, not “in addition to,” but rather
“or.” Under this reading, the Legislature decides which among the courts has
jurisdiction to hear extraordinary writ proceedings in any given situation.
Not only are we reluctant to read “and” as “or,” but we find no
ambiguity in the fact that Article VI, section 10 is silent as to any
jurisdiction-setting power of the Legislature. Article VI addresses the
function of the judicial branch and, within that article, section 10 describes
the courts’ original jurisdiction, including in proceedings for extraordinary
relief. Legislative power is a different subject, covered by other provisions.
Nothing in Article VI, section 10 so much as hints that the Legislature has
the power to strip certain courts of their original jurisdiction.

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 Instead, we see that where the Constitution intends an exception to its
grant of jurisdiction or leeway for the Legislature to define a court’s
jurisdiction, it says so explicitly. For example, until it was amended in 2002
to reflect unification of the municipal and superior courts, the final sentence
of Article VI, section 10 read, “Superior courts have original jurisdiction in all
other causes except those given by statute to other trial courts.” (See former
Article VI, § 10, prior to amendment approved by voters, Prop. 48, effective
Nov. 6, 2002, italics added.) And today, the parallel constitutional provision
addressing the courts’ appellate jurisdiction, Article VI, section 11, provides:
“The Supreme Court has appellate jurisdiction when judgment of death has
been pronounced. With that exception courts of appeal have appellate
jurisdiction when superior courts have original jurisdiction in [certain
causes], and in other causes prescribed by statute. When appellate
jurisdiction in civil causes is determined by the amount in controversy, the
Legislature may change the appellate jurisdiction of the courts of appeal by
changing the jurisdictional amount in controversy.” (Italics added.) In light
of the California Constitution’s express grants of authority to the Legislature
to adjust, in other circumstances, the jurisdiction of the courts,3 we decline to
read the failure similarly to provide for legislative adjustment of the courts’
original jurisdiction over extraordinary writs as an ambiguous grant of such
authority.

3Similarly, language in the federal Constitution expressly empowers
Congress to adjust the jurisdiction of the U.S. Supreme Court. (See U.S.
Constitution, Art. III, § 2 [“In all the other Cases before mentioned, the
Supreme Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress shall
make”], italics added.)

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 Nor are we persuaded that Article VI, section 10 is rendered ambiguous
by its failure to specify a single court of first resort for extraordinary writ
proceedings. As the Energy Commission concedes, courts have the power to
decide how to exercise their shared original jurisdiction in habeas corpus
cases. (Citing In re Hillery (1962) 202 Cal.App.2d 293, 294.) Of course,
courts have this same discretion when it comes to other extraordinary
proceedings, such as writs of mandate, and have long applied settled judicial
policy in determining when to exercise original jurisdiction there. (Cohen v.
Superior Court (1968) 267 Cal.App.2d 268, 270–271.) In most circumstances,
an application for a writ of mandate “should first be made to the superior
court,” but courts of appeal and the Supreme Court may exercise original
jurisdiction “where some emergency exists or the public welfare is involved.”
(Roma Macaroni Factory v. Giambastiani (1933) 219 Cal. 435, 437; see also
Mexican American Political Association v. Brown (1973) 8 Cal.3d 733, 734.)
The Energy Commission points out that the statutory law of this state
is replete with examples of the Legislature “assisting” courts by requiring
that a writ of mandate be filed in the superior court. (Citing, e.g., Gov. Code,
§ 6259; Wat. Code, § 13330, subd. (a).) Although we are not called upon to
decide the scope of the Legislature’s power to provide this kind of assistance,
we note that these statutes largely codify settled case law establishing that
mandate proceedings should generally originate in the superior courts, and
that such statutes have in any event not prevented our Supreme Court from
exercising its original jurisdiction in appropriate cases. (See, infra at pp. 19,
24 [discussing Great Western Power, supra, 170 Cal. at pp. 182–183 and
Matosantos, supra, 53 Cal.4th at p. 252].) Section 25531(a) is different. Read
in conjunction with section 25531, subdivision (c), it unequivocally bars
superior courts and courts of appeal from ever reviewing Energy Commission

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siting decisions, which brings it in direct conflict with Article VI, section 10
granting these courts original jurisdiction.
2. Legislative History
The Energy Commission contends that the legislative history of Article
VI, section 10 evinces an intention that the Legislature specify which court
shall function as the court of first resort in writ of mandate proceedings. The
commission relies on select excerpts from a 1966 report prepared by the
California Constitution Revision Commission that led to comprehensive
amendments to the Constitution, including the adoption of Article VI,
section 10. (See Cal. Const. Revision Com., Proposed Revision (1966) (1966
Report).) Because these 1966 amendments were “largely drafted” by the
Revision Commission, courts may consult the 1966 Report “to determine the
intent and objective of ambiguous provisions.” (Powers v. City of Richmond
(1995) 10 Cal.4th 85, 94.) Importantly though, “resort to extrinsic aids to
interpret a constitutional provision is justified only when the Constitution’s
language is ambiguous.” (Powers, at p. 93; see also Silicon Valley Taxpayers’
Assn., Inc. v. Santa Clara County Open Space Authority, supra, 44 Cal.4th at
pp. 444–445.) Although we find no ambiguity in the text of Article VI, section
10, we consider the Energy Commission’s legislative history arguments out of
an “abundance of caution.” (Powers, at p. 93.)4
In its 1966 Report, the Revision Commission proposed to address the
courts’ jurisdiction over extraordinary writ proceedings by including in
Article VI, section 10 the exact language that was later adopted: “The

4 Plaintiffs’ request for judicial notice of legislative material pertaining
to the 1966 amendments is granted. However, we deny the Energy
Commission’s request for judicial review of a document listing the names of
members of the Constitutional Revision Commission because that
information is not relevant to our disposition of this appeal.

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Supreme Court, courts of appeal, superior courts, and their judges have
original jurisdiction in habeas corpus proceedings. Those courts also have
original jurisdiction in proceedings for extraordinary relief in the nature of
mandamus, certiorari, and prohibition.” (1966 Report, supra, at p. 89.) As
we have seen, this language does not support the Energy Commission’s
interpretation of Article VI, section 10.
The Energy Commission seizes first on an isolated sentence in the 1966
Report, taken out of context, as support for its reading of section 10. “The
proposed section permits the Legislature to name the instances of original
jurisdiction in superior courts,” says the 1966 Report. (1966 Report, supra, at
p. 90.) But the paragraph that contains this statement does not discuss the
courts’ original jurisdiction in extraordinary writ proceedings. It comments
on a different provision of proposed section 10—one addressing the superior
courts’ original jurisdiction to decide most civil and criminal actions. (Id. at
pp. 89–90.) The 1966 Report proposed to replace scattered provisions in
former Article VI with the following sentence in a new section 10,
immediately after the sentence addressing extraordinary writs: “Superior
courts have original jurisdiction in all other causes except those given by
statute to other trial courts.” (Id. at p. 89.) It was with regard to this
proposal that the Revision Commission commented the proposed revision
would permit the Legislature to name the instances of the superior courts’
original jurisdiction. Because the statement was unrelated to original
jurisdiction in extraordinary writ proceedings, it provides no support for the
Energy Commission’s argument.
Offering a second argument from legislative history, the Energy
Commission speculates about a proposed amendment to Article VI that was
never enacted. The rejected provision, proposed as a new section 15, stated:

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“The Legislature may provide for judicial review in a court of record of any
administrative action of state or local government, but may not place review
in the Supreme Court in the first instance or give trial court functions to the
Supreme Court or courts of appeal.” (1966 Report, supra, at p. 92.) The
Energy Commission argues that section 15 was rejected because the
Legislature did not want to change existing law in this manner, so we should
not circumvent the process for revising the Constitution by now construing
section 10 to preclude placing review of an administrative action “in the
Supreme Court in the first instance.” This argument is chock-full of
assumptions about the state of the law before Article VI was amended and
the reason section 15 was rejected. Plaintiffs dispute these assumptions,
arguing that section 15 could have been deemed unnecessary since existing
law already prevented the Legislature from confining review of an
administrative action to the Supreme Court unless some other constitutional
provision gave it such power. This debate highlights the fact that
“[u]npassed bills, as evidences of legislative intent, have little value.” (Dyna-
Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1396,
italics omitted.)
This debate also focuses, for no good reason, on only the second half of
proposed section 15—the portion that would have prevented the Legislature
from placing review of administrative decisions “in the Supreme Court in the
first instance.” We see no reason the Energy Commission’s argument could
not be trained, with equal force, on the initial portion of proposed section 15,
which would have allowed the Legislature to “provide for judicial review in a
court of record” as it saw fit. If the Energy Commission’s approach were well
taken, we might paradoxically be compelled to conclude that the Legislature
chose not to adopt proposed section 15 because it did not want to change

16
existing law so as to give itself this power, and that we should accordingly
decline to construe section 10 as authorizing the Legislature to designate
which court may exercise original jurisdiction to review an administrative
action.
Ignoring this complication, the Energy Commission contends that
section 15 should not be treated like an unpassed bill but as tantamount to
an affirmative decision not to amend a statute. (Citing People ex rel.
Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203
Cal.App.3d 225, 239.) Eichenberger arose out of a dispute about a medical
clinic’s reporting obligations under the Child Abuse and Neglect Reporting
Act. (Pen. Code, § 11164 et seq.) In construing that law, the appellate court
observed: “When a statute is amended by the Legislature in certain respects,
the failure to amend the statute in other respects indicates an intention to
leave the law unchanged in those respects.” (Eichenberger, at p. 239.) This
principle has no application here because section 15 was not a proposed
amendment to an existing provision in the Constitution. As the Revision
Commission’s 1966 Report explained, there was “no parallel provision in the
existing Constitution for judicial review of administrative decisions.” Thus,
the rejection of proposed section 15 did not leave in place some other
constitutional provision to serve as a benchmark justifying the Energy
Commission’s narrow view of the courts’ original jurisdiction in extraordinary
writ proceedings.
3. Case Law
The Energy Commission faces its most daunting task in arguing that
case law supports its reading of Article VI, section 10. As we have noted, the
Court has consistently rejected the idea that the Legislature can divest any

17
level of our courts of original jurisdiction over extraordinary writ proceedings,
unless another constitutional provision authorizes such action.
An early example is Eshleman, which concerned an application to the
California Supreme Court for review of a decision of the Railroad Commission
(forerunner to the PUC)5 regarding long-distance telephone service.
(Eshleman, supra, 166 Cal. at p. 646.) Before reaching the merits, our
Supreme Court considered a constitutional challenge to the pertinent
provision of the Public Utilities Act, which authorized writ review solely in
the Supreme Court. (Eshleman, at p. 649.) As in our case, the
unconstitutionality of this provision was urged on the ground “that the
attempt to confer exclusive jurisdiction upon the supreme court” was “a plain
legislative attempt to curtail the jurisdiction vested in the superior court by
the constitution.” (Ibid.) The Supreme Court agreed with this analysis as far
as it went, concluding: “[t]he legislature has with deliberation restricted and
curtailed the jurisdiction vested in the superior courts of this state by the
constitution. And upon this but one thing can be said. If there be not in the
constitution itself warrant and power to the legislature to do this thing, its
effort must be declared illegal.” (Id. at p. 652.) But the Court then went on
to find that Article XII of the Constitution gave the Legislature plenary
power over the Railroad Commission and thus authorized the jurisdiction-
destroying provision of the Public Utilities Act. (Id. at pp. 652–659.)
Pointing to this second legal conclusion, the Energy Commission dismisses
the Court’s first as dicta, unnecessary to the outcome of the case.

5See Independent Energy Producers Assn. v. McPherson (2006) 38
Cal.4th 1020, 1038 [Article XII “was amended in 1946 to change the name of
the Railroad Commission to the Public Utilities Commission”].

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 Great Western Power, which followed Eshleman two years later, is not
so easily dismissed. (Great Western Power, supra, 170 Cal. 180.) The case
concerned an award made by the Industrial Accident Commission to the
survivors of a man killed in an industrial accident. (Id. at p. 181.) Our
Supreme Court reached the merits of a petition for writ of review, although
the petition was filed in the first instance in the Supreme Court and the
pertinent statute required such petitions to be filed in the superior court. (Id.
at pp. 182–183.) Citing Eshleman and the absence, at the time, of any
“special constitutional authorization” relating to compensation for industrial
accidents,6 the Supreme Court found the statute “not . . . effective to prevent
application to this court to exercise its original jurisdiction.” (Id. at pp. 182–
183.) Legislation that divested the Supreme Court of its original jurisdiction
was, to that extent, unconstitutional.
The Energy Commission contends that, whatever the law may have
been prior to 1966, after Article VI was amended to its current form, the
Supreme Court has construed Article VI, section 10 to empower the
Legislature to assign administrative mandate cases to specific courts. But
neither of the cases on which the commission relies establishes that
proposition.
The Energy Commission first relies on Solberg v. Superior Court (1977)
19 Cal.3d 182 (Solberg), a constitutional challenge to Code of Civil Procedure
section 170.6, which provides for the disqualification of a trial judge upon an
affidavit asserting prejudice. (Solberg, at p. 186–187.) Solberg held that

6 A later constitutional provision gave “the Legislature ‘plenary power’
to ‘create, and enforce a complete system of workmen’s compensation,’ ” and
this provision then authorized confining judicial review of compensation
awards to appellate courts. (County of Sonoma, supra, 40 Cal.3d at pp. 369–
370 [discussing Loustalot v. Superior Court (1947) 30 Cal.2d 905, 912–913].)

19
section 170.6 does not violate the separation of powers doctrine. (Id. at
pp. 191–192.) In reaching this conclusion, the Court reiterated that “ ‘the
constitutional jurisdiction and powers of the superior court [as defined in
article VI of the Constitution] can in nowise be trenched upon, lessened or
limited by the legislature,’ ” although “ ‘ “the procedure by which the
jurisdiction of said courts is to be exercised may be prescribed by the
legislature.” ’ ” (Id. at pp. 191–192.) Solberg then applied a rule that
harmonizes these principles: “ ‘ “statutory regulation [of the courts’
jurisdiction] will be upheld unless such regulations should be found to
substantially impair the constitutional powers of the courts or practically
defeat their exercise.” ’ ” (Id. at p. 192.)
The Energy Commission posits that section 25531(a) is constitutional
under Solberg because it is a reasonable means of streamlining judicial
review of Energy Commission decisions to avoid duplication of effort. These
policy considerations are not controlling.7 Section 25531(a) cannot
reasonably be characterized as prescribing a procedure by which courts
exercise their constitutional powers; it instead bars entirely superior courts
and courts of appeal from exercising their Article VI jurisdiction over these

7 Nor is section 25531(a) the only way the Legislature can streamline
judicial review of Energy Commission siting decisions. The Legislature that
adopted the Warren-Alquist Act had reservations about the constitutionality
of the original section 25531(a) (see George H. Murphy, Legislative Counsel,
Cal. Office of Legislative Counsel, letter to Governor Ronald Reagan, Report
on Enrolled Bill A.B. 1575 (May 20,1974), p. 2 [“since the [Energy
Commission] created by this bill would not be a constitutional agency, as is
the [PUC], we do not think the courts can be thus limited in their review”]),
so the statute has from the start included a savings clause. Public Resources
Code section 25903 provides that, if section 25531(a) is struck down, Energy
Commission siting decisions shall receive priority review from the superior
court and preference in corresponding appellate proceedings—one alternative
mechanism for accelerating judicial review.

20
mandate petitions. In the language of Solberg, section 25531(a) both
substantially impairs and practically defeats the constitutional powers of
these courts, and it is for that reason unconstitutional. (See Solberg, supra,
19 Cal.3d at p. 192.)
The Energy Commission also relies on Tex-Cal Land Management, Inc.
v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 (Tex-Cal), which
arose out of a ruling by the Agricultural Labor Relations Board (ALRB) that
an employer was guilty of unfair labor practices. Pursuant to Labor Code
section 1160.8, the employer sought review of this ruling in the court of
appeal. The appellate court, applying a statutory standard that required it to
accept the ALRB’s findings of fact if supported by substantial evidence,
affirmed the ALRB’s ruling with modifications. The Supreme Court granted
review to address questions regarding “section 1160.8’s construction,
constitutionality, and proper application.” (Id. at p. 341.)
The Supreme Court in Tex-Cal rejected a claim that Labor Code section
1160.8 is unconstitutional because it confers jurisdiction on the court of
appeal “beyond that conferred or authorized” by Article VI, sections 10 and
11. (Tex-Cal, supra, 24 Cal.3d at p. 347.) Of concern was a provision in the
statute that gives the court of appeal jurisdiction to “enter a decree enforcing,
modifying . . . , or setting aside in whole or in part, the order of the [ALRB]”
(Lab. Code, § 1160.8)— judicial functions that the Tex-Cal Court found “do
not readily fit the molds of either original jurisdiction to grant extraordinary
relief or appellate jurisdiction.” (Tex-Cal, at p. 347.) Ultimately, the Court
concluded these judicial functions are within the court of appeal’s original
jurisdiction to adjudicate a petition for writ of mandate. (Id. at pp. 350–352.)
In reaching this conclusion, the Court acknowledged that agency decisions
are usually reviewed by mandate proceedings in the superior courts, but it

21
emphasized that the constitution also confers extraordinary writ jurisdiction
on courts of appeal and the Supreme Court. “[A] mandate proceeding
initiated in an appellate court is a constitutionally permitted vehicle for
reviewing an administrative determination.” (Id. at p. 350.)
The Energy Commission contends that section 25531(a) is
constitutional under Tex-Cal because of precisely this conclusion—that “a
mandate proceeding initiated in an appellate court is . . . constitutionally
permitted.” (Tex-Cal, supra, 24 Cal.3d at p. 350.) But Plaintiffs do not
challenge whether a mandate proceeding may be initiated in an appellate
court, only whether section 25531(a) may require that it must be initiated
there. Tex-Cal did not hold that the Legislature has authority to bar superior
courts from exercising their extraordinary writ jurisdiction. It held that the
court of appeal’s original jurisdiction over mandate proceedings includes the
power to perform judicial functions assigned it in Labor Code section 1660.8.
The Court did not address whether section 1660.8 bars other courts from
exercising those same functions, nor did it consider whether such a bar would
be constitutional. In other words, Tex-Cal addressed a fundamentally
different issue from the one we face here.8
By contrast, we do find useful guidance in Gerawan Farming, supra,
247 Cal.App.4th 284, which involved a decision by the ALRB excluding
members of the public from attending a mandatory mediation and
conciliation proceeding conducted to resolve a collective bargaining dispute.
In a declaratory relief action challenging the constitutionality of this
exclusion order, the superior court initially concluded it lacked jurisdiction to

8 We deny, for lack of relevancy, the Energy Commission’s request for
judicial notice of a legal brief the Energy Commission filed in a prior
proceeding in which it argued that section 25531(a) is valid under Tex-Cal.

22
review the ruling because Labor Code section 1164.9 limits judicial review to
the court of appeal and the Supreme Court. (Id. at pp. 288–289.) Reversing
the judgment on appeal, the Gerawan Farming court held that Labor Code
section 1164.9 is unconstitutional because its “absolute preclusion of superior
court jurisdiction, even in exceptional circumstances . . . impermissibly
divested the superior court of its original jurisdiction.” (Id. at p. 289.)
Gerawan Farming distinguished Tex-Cal on the same ground we do—that the
issue in Tex-Cal was not whether a “statute may divest the superior court of
original jurisdiction,” but whether the challenged statute “violated the grant
of original jurisdiction to appellate courts by impermissibly expanding on
that jurisdiction.” (Gerawan Farming, supra, 247 Cal.App.4th at pp. 303–
306.)
Furthermore, Gerawan Farming distinguished Labor Code section
1160.8, the statute at issue in Tex-Cal, precisely because that provision does
not bar “all recourse to the superior court.” (Gerawan Farming, supra, 247
Cal.App.4th at p. 305.) Section 1160.8 has been construed to permit superior
court review of an ALRB decision in an unfair labor practices proceeding “in
exceptional circumstances where the prescribed judicial review process was
unavailable or patently inadequate and a significant statutory or
constitutional violation was asserted that warranted such redress.”
(Gerawan Farming, at p. 305.) In contrast, Labor Code section 1164.9, the
statute at issue in Gerawan Farming, “seeks to altogether divest the superior
court of jurisdiction over the matters described therein,” thus raising a
materially different constitutional issue. (Gerawan Farming, at p. 307.)
The statute we review in the present case is analogous to the Labor
Code provision struck down in Gerawan Farming in that section 25331
imposes a statutory bar that divests superior courts and courts of appeal from

23
ever reviewing Energy Commission siting decisions. In this way, too,
Gerawan Farming supports the conclusion that our case is not governed by
Tex-Cal.
In its reliance on Solberg and Tex-Cal, the Energy Commission
overlooks the most relevant Supreme Court precedent since 1966. In
Matosantos, the Court was asked to determine the validity of a statute
winding down the state’s redevelopment agencies, a statute that required
“ ‘any action’ ” challenging its validity to “ ‘be brought in the Superior Court
of the County of Sacramento.’ ” (Matosantos, supra, 53 Cal.4th at p. 252.)
When a litigant nonetheless filed directly in our Supreme Court a petition for
writ of mandate urging the invalidity of the statute, the Court did not allow
the statutory language to prevent it from reaching the merits. (Ibid.) Citing
century-old caselaw establishing that its original jurisdiction over a petition
for writ of mandate “is constitutional” and “may not be diminished by
statute,” the Supreme Court construed the pertinent provision narrowly to
avoid this constitutional pitfall. (Ibid., citing Chinn v. Superior Court, supra,
156 Cal. at p. 480.) The Court read the statute “as applying only to, and
designating a forum for, ‘action[s],’ . . . while having no bearing on
jurisdiction over ‘special proceedings’ such as petitions for writs of mandate,”
over which the Supreme Court has original jurisdiction. (Matosantos, at
p. 253.)
The Court effectively embraced in Matosantos the legal principle that
the Energy Commission dismisses as dictum in Eshleman and as obsolete
after the constitutional amendments of 1966. Matosantos establishes the
continuing vitality of the Eshleman rule. Applying it here, we conclude that
for section 25531(a) to be valid, some other provision of the Constitution must
authorize the Legislature to abridge the original jurisdiction of the superior

24
courts and the courts of appeal in writ of mandate cases involving Energy
Commission siting decisions.
C. Article XII No Longer Authorizes Section 25531(a)
The Energy Commission argues, in the alternative, that Article XII,
section 5 provides constitutional authority for section 25531(a). Article XII
vests the PUC with power to regulate public utilities under the auspices of
the California Legislature. Article XII, section 5 states that “[t]he
Legislature has plenary power, unlimited by other provisions of this
constitution but consistent with this article, to confer additional authority
and jurisdiction upon the [PUC], to establish the manner and scope of review
of [PUC] action in a court of record, and to enable it to fix just compensation
for utility property taken by eminent domain.” (Italics added.)
Courts have long recognized that the Legislature’s plenary
constitutional authority over PUC matters includes the power to restrict
judicial review of PUC decisions. (See e.g. Eshleman, supra, 166 Cal. at
p. 689; Southern Calif. Edison Co. v. Railroad Com. (1936) 6 Cal.2d 737, 748.)
Citing County of Sonoma, supra, 40 Cal.3d 361, the Energy Commission
contends that the Legislature’s Article XII power implicitly extends to Energy
Commission siting decisions as well.
In County of Sonoma, the petitioner filed a mandate proceeding in the
Supreme Court to challenge an Energy Commission siting decision. (County
of Sonoma, supra, 40 Cal.3d at p. 366.) However, the petitioner prayed in the
alternative for the Court to decide whether former section 25531 was
constitutional, and it was on this ground that the case was decided. At the
time, former section 25531(a) made Energy Commission siting decisions
subject to judicial review “in the same manner as the decisions of the” PUC
on a need certificate “for the same site and related facility.” (See County of

25
Sonoma, at p. 366, fn. 6.) Because these PUC decisions were reviewable only
by the Supreme Court (id. at p. 366; former Pub. Util. Code, §§ 1756–1759),
former section 25531(a) effectively limited review of such Energy Commission
siting decisions to the Supreme Court as well.
County of Sonoma upheld this constraint as “a proper exercise of the
Legislature’s broad powers over PUC matters conferred by article XII.”
(County of Sonoma, supra, 40 Cal.3d at p. 368.) The Court started from the
baseline that the Legislature had for decades sought to expedite review of
PUC decisions by making them reviewable only in the Supreme Court, and
then explained how section 25531 accomplished this same objective. “Section
25531 was carefully tailored to apply only to Energy Commission action on
certifications that are prerequisite to issuance of” a PUC need certificate; and
by expediting these prerequisite decisions, section 25531 “expedite[d] the
state’s ultimate authorization of electric generating plants through not only
the Energy Commission but also the PUC itself.” (Id. at pp. 370–371.) Were
it not for former section 25531, “PUC authorization of such a project might be
substantially delayed until judicial proceedings to review the Energy
Commission’s certification of the project were completed not only in [the]
superior court but in the Court of Appeal and [the Supreme Court] as well”
(id. at p. 368) because an Energy Commission siting certificate had to precede
a PUC need certificate (Pub. Resources Code, § 25518; Pub. Util. Code §1002,
subd (b)). It was this “close relationship between the functions of the PUC
and the narrow class of Energy Commission decisions affected by section
25531” that brought the challenged “judicial review provisions within the
broad legislative authority over PUC matters conferred by article XII.” (Id.
at p. 367.)

26
 The Energy Commission argues that the current version of section
25531 “simply uses more direct language to do precisely the same thing that
the original section 25531 did,” so the provision must pass constitutional
muster for the reasons given in County of Sonoma. The Energy Commission
is mistaken in two significant respects.
First, the original section 25531(a) explicitly equated the review
afforded Energy Commission decisions with the review afforded PUC
decisions on need certificates—review was to be “in the same manner as”
these PUC decisions. By contrast, the current section 25531(a) makes no
reference to PUC decisionmaking and constrains judicial review more
sharply than does the equivalent statute now governing review of PUC
decisions. In the 1990’s, the Legislature expanded judicial review of PUC
decisions by amending Public Utilities Code section 1756 to authorize
original jurisdiction in the court of appeal as well as the Supreme Court. (See
Stats. 1996, ch. 855, §§ 1, 5; Stats. 1998, ch. 886, § 10.) A few years later,
when amending section 22531(a) to its current form, the Legislature decided
Energy Commission siting decisions no longer should be reviewed in the
same way as PUC decisions. Instead, section 25531 now provides that
Energy Commission decisions “on any application for certification of a site
and related facility are subject to judicial review by the Supreme Court of
California” (§ 25531(a)), and by the Supreme Court alone (§ 25531, subd. (c)),
while PUC decisions remain reviewable at the court of appeal and the
Supreme Court. As Plaintiffs point out in their appellate brief, this means
PUC decisions involving power plant approvals are today “subject to more
robust and meaningful judicial review than [Energy] Commission siting
decisions for the same power plants.”

27
 The second important difference in the amended version of section
25531(a) is that the provision now applies to all Energy Commission site
certificates, not just those where an electrical utility will also apply for a PUC
need certificate. The “narrow class of Energy Commission decisions”
previously governed by section 25531(a) was the class of site certificates for
which the PUC would also receive an “ ‘application for a [need certificate] for
the same site and related facility.’ ” (County of Sonoma, supra, 40 Cal.3d at
pp. 366–367 & fn. 6.) It was precisely because, for these power plants, the
site certificate was “prerequisite to” the PUC’s issuance of a need certificate,
that the Supreme Court concluded former section 25531 expedited
“authorization of electric generating plants through . . . the PUC itself,” and
on that basis survived constitutional attack. (Id. at pp. 370–371.) By
contrast, today section 25531(a) constrains judicial review of Energy
Commission decisions “on any application for certification of a site and
related facility.” (Italics added.) The provision is no longer “carefully tailored
to apply only to” those Energy Commission decisions on which PUC licensing
depends. (County of Sonoma, at p. 370.)
The significance of this second change looms large when one considers
broader changes in the process by which the PUC regulates the energy
industry that have occurred since County of Sonoma. “[I]n the early 1990’s
California began a process of restructuring electricity service by introducing
competition in the generation of electricity, with the ultimate objective of
achieving lower rates for consumers.” (Independent Energy Producers Assn.
v. McPherson, supra, 38 Cal.4th at pp. 1025–1026.) A key component of this
restructuring process was a “deregulation plan” adopted by the Legislature in
1996, which was designed to facilitate private ownership and operation of
powerplants. (Id. at p. 1026.) Among other things, the plan required

28
investor-owned utilities to sell their powerplants to independent generators.
(Ibid.) In addition, the Legislature amended the Public Utilities Code to
exclude independent generators from the definition of a public utility, freeing
them from the requirement of having to obtain a PUC need certificate in
order to construct a powerplant. (Pub. Util. Code, § 216, subd (h), added by
Stats. 1996, ch. 854, § 9.) As a result of these changes, most new thermal
power plants are now constructed and operated by independent power
producers who, although they still need a site certificate from the Energy
Commission, no longer require a need certificate from the PUC. If section
25531(a) today applied only to those Energy Commission site certificates that
were a statutory prerequisite to a PUC need certificate for the same facility,
the provision would apply in vanishingly few cases. The record reports that
no more than three site certificates, out of 61 the Energy Commission has
issued since 2001, went to investor-owned utilities who would be required
also to obtain a PUC need certificate.
The Energy Commission concedes that an independent power producer
is not required to obtain a PUC need certificate to build a powerplant, but
argues the PUC effectively regulates these power producers through its
review and approval of “power purchase agreements.” These contracts,
whereby a public utility agrees to purchase power at a stated price often for a
period of years, are usually the only realistic means of obtaining financing for
construction of a powerplant. But no law requires a powerplant developer to
obtain a power purchase agreement, nor must the PUC’s review of a power
purchase agreement await a decision from the Energy Commission on the
siting certificate. Indeed, the record contains evidence of PUC decisions
approving power purchase agreements before the Energy Commission had

29
completed its siting review for the same powerplant or, in other cases, many
years thereafter.
The Energy Commission also points out that some independent
producers require a need certificate for new transmission lines to connect
their new power plants to the electrical grid, but this applies to only a small
fraction of new powerplants since 2001.
Numbers aside, the issue in this appeal is not whether the PUC has
regulatory influence over private parties constructing powerplants in this
state. The issue is whether section 25531 is a proper exercise of the
Legislature’s Article XII power to regulate the PUC. The text of Article XII
suggests this constitutional provision does not authorize the Legislature to
constrain judicial review of Energy Commission decisions. The plenary
power that Article XII, section 5 gives the Legislature is “to establish the
manner and scope of review of [PUC] action in a court of record,” with no
mention that this power extends to decisions of other state agencies. (Art.
XII, § 5.) In County of Sonoma the Supreme Court inferred a narrow
extension of the Legislature’s Article XII, section 5 power. Because section
25531 then applied only to Energy Commission citing certificates that were a
statutory prerequisite for obtaining PUC approval of the same project, the
Court held that Article XII justified expedited judicial review of both
certificates for those projects. (County of Sonoma, supra, 40 Cal.3d at
pp. 370–371.) But because Energy Commission siting decisions are no longer
an integral component of the PUC’s regulatory scheme for new powerplants,
except in the rare circumstance of an application for a new powerplant from
an investor-owned utility, and because section 25531 has been expanded to
apply to site certificates for all new powerplants, not just those for which a
PUC need certificate is also required, Article XII is no longer “carefully

30
tailored” to “implementing and facilitating the PUC’s licensing of
thermoelectric power facilities.” (County of Sonoma, at pp. 370–371.) Thus,
Article XII no longer justifies expediting—and limiting—judicial review of
Energy Commission siting decisions. The Legislature has formally severed
the statutory link between PUC action and Energy Commission siting
decisions.
The Energy Commission argues that section 25531(a) is constitutional
because the current provision remains “ ‘cognate and germane’ ” to the PUC’s
regulatory functions. The Energy Commission mischaracterizes this test for
functional relatedness as “the rule set forth in County of Sonoma.” The
phrase does appear once in County of Sonoma, in an extended block quote
taken from a case called Pickens v. Johnson (1954) 42 Cal.2d 399, which uses
the phrase to describe the holding of Eshleman. (County of Sonoma, supra,
40 Cal.3d. at p. 369.) But Pickens is a case that examines whether the
constitution authorizes the retired judges program; Pickens does not address
the original jurisdiction of the courts, nor purport to establish a standard for
determining under what circumstances the Legislature’s plenary power over
one state agency gives it plenary power over a different agency.
Eshleman, when it speaks of “cognate and germane,” does so for an
entirely different purpose—to explain that the Constitution authorizes the
Legislature “to confer additional and different powers upon” the Railroad
Commission, provided such powers are “cognate and germane to the subject
of public utilities.” (Eshleman, supra, 166 Cal. at p. 689; see also id. at p. 656
[“legislature may confer upon the railroad commission . . . whatsoever
authority it may see fit” in contexts that “are cognate and germane to . . . the
constitutional powers conferred”].) “[C]ognate and germane” (ibid.) is, in

31
short, a limiting principle that bounds the Legislature’s “plenary power . . . to
confer additional authority and jurisdiction upon” the PUC. (Art. XII, § 5.)
Eshleman’s usage of “cognate and germane” is consistent with courts’
use of the phrase in other cases. (See Morel v. Railroad Com. Of California
(1938) 11 Cal.2d 488, 491–492 [additional powers conferred on Railroad
Commission]; Tomra Pacific, Inc. v. Chiang (2011) 199 Cal.App.4th 463, 483
[single subject rule for legislation].) This usage has nothing to do with the
issues before us. Our case is not about whether the Legislature can enlarge
the jurisdiction of the PUC by giving the PUC additional authority. It is
about whether the Legislature can exempt from full judicial review decisions
of the Energy Commission, even though the Constitution creates and gives
the Legislature plenary power over the PUC and not the Energy Commission.
We think the Energy Commission’s attempt to substitute a more
flexible “cognate and germane” standard for the rigorous approach the
County of Sonoma Court actually took when analyzing the constitutionality
of former section 25531 is particularly inappropriate to the issue before us. It
has long been established that the jurisdiction Article VI vests in our courts “
‘may not lightly be deemed to have been destroyed.’ ” (Matosantos, supra, 53
Cal.4th at p. 253.) We do not read Article XII, section 5 as authorizing any
such destruction with regard to original jurisdiction to review Energy
Commission decisions on site certificates, now that section 25531(a) is no
longer “carefully tailored to apply only to . . . certifications that are
prerequisite to issuance of” a PUC need certificate. (County of Sonoma,
supra, 40 Cal.3d at p. 370.)
Finally, the Energy Commission contends that this facial challenge to
the constitutionality of section 25531(a) must be rejected because Plaintiffs
failed to produce evidence to show that the Energy Commission has actually

32
made a siting decision with respect to a powerplant that is not closely
connected to the functions of the PUC. The Energy Commission’s authority
for this argument is Coffman Specialties, Inc. v. Department of
Transportation (2009) 176 Cal.App.4th 1135, 1144–1145 (Coffman
Specialties). That case states: “ ‘In evaluating a facial challenge, a court
considers ‘only the text of the measure itself, not its application to the
particular circumstances of an individual.’ ” (Ibid.) By bringing a facial
challenge, Plaintiffs were thus not required to ground their constitutional
challenge in an actual siting decision by the Energy Commission.
Coffman Specialties also confirms the principle that a plaintiff cannot
establish that a statute is unconstitutional on its face by ‘ “ ‘suggesting that
in some future hypothetical situation constitutional problems may possibly
arise as to the particular application of the statute.” ’ ” (Coffman Specialties,
supra, 176 Cal.App.4th at p. 1145.) In other words, the constitutional
problem must be manifest, which it is here, as explained above and in our
prior decision reversing the first judgment in this case. (Communities I,
supra, 19 Cal.App.5th at pp. 738–740.)
In summary, the trial court did not err by entertaining Plaintiffs’ facial
challenge, nor by finding that section 25531(a) divests the superior courts
and courts of appeal of original jurisdiction that Article VI, section 10 confers
on them. This impingement is not authorized by Article XII, and the Energy
Commission identifies no other provision of the Constitution that expressly or
impliedly confers power on the Legislature to divest these courts of their
original jurisdiction. Section 25531(a) is, accordingly, unconstitutional.

33
II. Section 25531(b) Violates the Judicial Powers Clause
The Energy Commission also challenges the trial court’s separate
finding that section 25531(b) is unconstitutional because it confers judicial
power on an administrative agency.
Section 25531(b) purports to limit the judiciary’s power to review
Energy Commission fact-finding. The statute provides that judicial review of
Energy Commission siting decisions “shall not be extended further than to
determine whether the commission has regularly pursued its authority,
including a determination of whether the order or decision under review
violates” the petitioner’s constitutional rights. Further, “[t]he findings and
conclusions of the commission on questions of fact are final and are not
subject to review, except as provided in this article.” (§ 25531(b).)
The Energy Commission may not itself exercise judicial power. Article
VI, section 1 vests “[t]he judicial power of this State . . . in the Supreme
Court, courts of appeal, and superior courts, all of which are courts of record.”
Notwithstanding this broad grant, the Constitution also creates and
empowers some administrative agencies, such as the PUC, to exercise judicial
authority. (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348,
355 (McHugh).) However, “agencies not vested by the Constitution with
judicial powers may not exercise such powers.” (Id. at p. 356.) Indisputably,
the Energy Commission was not created by the Constitution nor vested with
judicial powers.
Our Supreme Court has established guidelines for evaluating whether
an adjudicative administrative action violates the judicial powers clause. Of
importance here, an “agency may constitutionally hold hearings, determine
facts, apply the law to those facts, and order relief” only if “the ‘essential’
judicial power (i.e., the power to make enforceable, binding judgments)

34
remains ultimately in the courts, through review of agency determinations.”
(McHugh, supra, 49 Cal.3d at p. 372, italics omitted.)
Applying this guideline, we affirm the trial court’s finding that section
23531(b) is an unconstitutional seizure of judicial power. In conducting their
essential judicial review function, courts review agency findings under either
the substantial evidence or independent judgment standard, depending on
the gravity of the right at issue. (Inzana v. Turlock Irrigation Dist. Bd. of
Directors (2019) 35 Cal.App.5th 429, 440; Strumsky v. San Diego County
Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) Section 25531(b)
purports to eschew either standard by mandating that Energy Commission
“findings and conclusions . . . on questions of fact are final and are not subject
to review.”
The Energy Commission makes two related attempts to avoid this
result. First, it contends that there is no controversy between the parties to
resolve because the Energy Commission agrees with Plaintiffs that judicial
review of its decisions on siting certificates should include review of factual
findings for substantial evidence. According to this argument, the Energy
Commission is entitled to summary judgment on the cause of action
challenging the constitutionality of section 22531(b) because it produced
undisputed evidence showing that it has taken the view in previous mandate
cases that its siting decisions are subject to substantial evidence review. But
the commission’s evidence does not support its argument. The evidence
establishes only that the Energy Commission has submitted briefs in which,
“[f]or purposes of this Opposition” it “assumes that the Court’s inquiry . . .
[includes] substantial evidence review.” Such an assumption may have
narrowed the issues in dispute in a particular prior case, but it does not moot
the controversy over the constitutionality of section 25531(b). Certainly, the

35
Energy Commission has never agreed with Plaintiffs that section 25531(b) is
unconstitutional.
Second, the Energy Commission argues, citing the canon of
constitutional avoidance, that we can and should interpret section 25531(b) to
require substantial evidence review. “The canon of constitutional avoidance
is a tool of statutory interpretation that permits us to select between
competing plausible interpretations of statutory text. It does not permit us to
‘ “ ‘do[] violence to the reasonable meaning of the language used.’ ” ’ ” (People
v. Garcia (2017) 2 Cal.5th 792, 815.) Here, section 25531(b) contains no
language that reasonably can be interpreted as subjecting Energy
Commission findings to substantial evidence review. (Compare In re Kay
(1970) 1 Cal.3d 930, 942.) Indeed, section 25531(b) expressly states, “findings
and conclusions of the commission on questions of fact . . . are not subject to
review, except as provided in this article.” There are no “articles” in Chapter
6 of Division 15 of the Public Resources Code, and the commission cites only
one possible exception to this statutory prohibition on subjecting factual
findings to judicial review. The commission draws our attention to section
25531(b)’s language permitting courts to inquire whether the Energy
Commission “ ‘has regularly pursued its authority.’ ”
We disagree with the Energy Commission that an inquiry into whether
the commission “has regularly pursued its authority” entitles courts to review
the commission’s factual determinations for substantial evidence. The
commission contends that section 25531(b) was modeled on a former version
of Public Utilities Code section 1757 containing the same language, which the
commission argues has been interpreted by our Supreme Court to authorize
substantial evidence review of PUC findings. (Citing Southern Pacific Co. v.

36
Public Utilities Com. (1953) 41 Cal.2d 354, 362 (Southern Pacific).) The
Energy Commission misreads Southern Pacific.
Southern Pacific, supra, 41 Cal.2d. 354 first discusses the predecessor
to section 1757 of the Public Utilities Act as it existed in 1930, when the
pertinent statutory language was identical to the language of section
25531(b). As to this provision the Court explained, “the findings and
conclusions of the commission on questions of fact are made final and not
subject to review. . . , and neither the sufficiency of the evidence, nor the
soundness of the reasoning, upon which that finding was based, can be
considered on” ’ ” review. (Id. at p. 360, italics added.)
Southern Pacific then discusses section 1757 of the Public Utilities Act
as it resulted from 1933 amendments designed to better address judicial
review for constitutional claims. The language of the amended statute
retained strong similarity to the language later used in section 25531(b), and
it continued to exempt PUC factual findings for non-constitutional claims
from review for substantial evidence. (Southern Pacific, supra, 41 Cal.2d at
p. 362.) To the extent the point remains obscure in Southern Pacific, it
emerges with clarity in Camp Meeker Water System, Inc. v. Public Utilities
Com. (1990) 51 Cal.3d 845, which, discussing Southern Pacific and section
1757, concludes: “The question is not whether the evidence is sufficient
under traditional criteria for appellate review.” (Camp Meeker, at p. 863.)
Instead, the “ ‘determination whether the commission has regularly pursued
its authority’ ” requires the court to review for any evidence to support the
commission’s findings, a more deferential standard. (Id. at pp. 863–864; see
also Yucaipa Water Co. v. Public Utilities Com. (1960) 54 Cal.2d 823, 828
[“ ‘ “The rule, of course, is that if there was any evidence before the [PUC]
that would justify its finding, its order cannot be annulled” ’ ”].) Because the

37
Constitution endows the PUC with certain judicial authority, the “any
evidence” standard was acceptable for judicial review of PUC decisions (see
Southern Pacific, supra, 41 Cal.2d at pp. 359–360), but the Legislature later
opted to amend the Public Utilities Code to require substantial evidence
review. (Pub. Util. Code, § 1757, subd. (a)(4).)
As we have seen, no constitutional provision vests the Energy
Commission with judicial authority comparable to the PUC’s, and section
25531(b) has not been amended to provide for substantial evidence review of
Energy Commission factual findings. In light of the caselaw construing the
statute on which section 25531(b) was modeled, we therefore agree with the
trial court that section 25531(b) is not susceptible to an interpretation that
would render it constitutional.
DISPOSITION
The judgment is affirmed. Respondents are to pay costs on appeal.
(Cal. Rules of Court, rule 8.278.)

TUCHER, J.

WE CONCUR:

STREETER, Acting P. J.
BROWN, J.

Communities for a Better Environment et al. v. Energy Resources Conservation and Development Commission (A156017)

38
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Stephen Kaus

Counsel: 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
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, 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 for Plaintiffs and
Respondents

Communities for a Better Environment et al. v. Energy Resources Conservation and Development Commission (A156017)

39