In Robinson v. Superior Court (2023) 88 Cal.App.5th 1144, the Fifth District Court of Appeal held that Southern California Edison (SCE), as an investor-owned public utility, was not required to comply with CEQA in an eminent domain action because SCE was neither a “public agency” under CEQA nor did SCE need approval from a public agency to condemn private property. In separate holdings, not discussed further in this summary, the Court also found that the trial court failed to make explicit findings on the record that SCE satisfied the conditions precedent to the exercise of power of eminent domain set out in Code of Civil Procedure section 1240.030, and, as a result, the Court determined there was prejudicial error as portions of SCE’s claims were not supported by substantial evidence. The Court issued a peremptory writ ordering the trial court to vacate its order granting SCE’s motion for prejudgment possession and to conduct further proceedings on the motion.

In 2022, SCE filed a complaint in eminent domain to condemn an easement across a landowner’s property for the purpose of accessing and maintaining existing power transmission lines, and filed a motion for prejudgment possession of the property. The trial court granted SCE’s motion, and the property owners filed a petition for writ of mandate challenging the order of prejudgment possession with the Court of Appeal asserting, among other things, that SCE was not entitled to take the property because they had not complied with CEQA.

In the writ proceeding, the Court noted that CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies,” and that CEQA’s definition of public agency did not include investor-owned public utilities such as SCE. While the Court acknowledged that some scenarios would require SCE to obtain California Public Utilities Commission (CPUC) approval and comply with CEQA, the circumstances in this instance allowed for SCE to condemn the property without CPUC approval. The Court concluded that its literal interpretation of public agency would not produce the “absurd” result of allowing a privately owned utility to exercise the power of eminent domain without any regard to environmental effects because the statutory conditions for exercising the power required the court to evaluate whether the planned action is compatible with the greatest public good while, at the same time, creating the least private injury to a property owner.

Key Point

• CEQA applies only to discretionary projects proposed to be carried out or approved by public agencies, and CEQA’s definition of public agency does not include investor-owned public utilities.

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