Desert Environment Conservation Ass'n v. Public Utilities Commission

Opinion

MOSK, J. Petitioners seek a writ of mandate to compel respondent Public Utilities Commission to commence immediate preparation of an environmental impact statement in connection with an application by real party in interest for a certificate of public convenience and necessity for a proposed power plant.

The real party in interest, an investor-owned utility company, has requested the commission to approve a one and one-half billion watt electrical generating station to be constructed near petitioners’ homes in the high desert area of San Bernardino County. The commission has not yet held a hearing on the application. Petitioners’ allegations that the region surrounding the proposed site is ecologically fragile and that the plant would have a significant effect on the environment are not disputed. On the basis of these allegations, petitioners contend the commission must issue an environmental impact statement before holding a hearing on the application and, consequently, must begin preparation of this statement forthwith.

The California Environmental Quality Act of 1970 (EQA) (Pub. Resources Code, § 21000 et seq.) provides for the preparation by state and local governmental entities of written analyses of the environmental impact of proposed projects that may have a significant effect on the environment. The commission, although it has never formally ruled on the issue, has heretofore operated under the assumption that the EQA is not applicable to its issuance of certificates of public convenience and necessity. Amendments clarifying provisions of the existing statute were adopted during the recent session of the Legislature, however, and. have laid to rest the commission’s reservations. (Stats. 1972, ch. 1154.) The commission is covered by the act (see § 21168.6) and has now so conceded.1

[742]A second issue initially raised in these proceedings has also been resolved by legislative clarification: i.e., whether the public agency authorizing a project having a significant effect on the environment must prepare an environmental impact statement in all cases, or need do so only if it files some other report on the project. Section 21100 now provides, inter alia: “All state agencies, boards, and commissions shall prepare, or cause to be prepared by contract, and certify the completion of an environmental impact report on any projects they propose to carry out or approve which have a significant effect on the environment . . . .” (Italics added.)