California’s process to challenge thermal power plants will likely be put to the judicial test in the coming years. The California Court of Appeal has granted publication of its recent opinion in Communities for a Better Environment v. State Energy Resources Conservation and Development Commission, (Dec. 22, 2017, No. A141299) __Cal.App.5th __, which reverses the trial court’s dismissal of a complaint by environmental groups Communities for a Better Environment and Center for Biological Diversity (collectively “Communities”), challenging the constitutionality of the limited judicial review available for thermal power plant licenses issued in California. You can find our previous post detailing Communities’ complaint here.
In January 2014, the Alameda County Superior Court dismissed Communities’ claims that statutory provisions of California’s power plant siting law, the Warren-Alquist Act, violated article VI, section 10 of the California Constitution. Under this unique facet of the Warren-Alquist Act, any challenge to a decision by the California Energy Commission on a thermal power plant license must be appealed directly to the California Supreme Court. (Cal. Pub. Resources Code, § 25531(a).) The trial court sided with the Energy Commission and the California State Controller, who argued that the case was not grounded in any actual existing controversy among Communities and the Commission, sought an advisory opinion only, and was not ripe for review. The trial court concluded that Communities had failed to meet its burden to show how its complaint could be amended to state a justiciable cause of action, and, thus, it dismissed the matter with prejudice and entered judgment in favor of the Energy Commission and the Controller.
Communities sought to distinguish California Supreme Court precedent in County of Sonoma v. State Energy Resources Conservation and Development Commission, 40 Cal.3d 361 (1985), that has previously upheld the constitutionality of Public Resources Code section 25531(a). Communities argued that section 25531(a) was upheld before deregulation of the energy sector in California changed the way power plants are permitted. Prior to deregulation, developers had to obtain a Certificate of Public Convenience and Necessity from the California Public Utilities Commission (PUC) as well as an Energy Commission license, with judicial review of both the PUC and Energy Commission approvals statutorily granted to the California Supreme Court under section 25531(a). Since the Legislature removed all references to the PUC from section 25531 in 2001, and more generally shifted judicial review of PUC decisions from the California Supreme Court to the Court of Appeal in 1998, Communities sought to revisit the constitutionality of section 25531(a).
In its decision, the Court of Appeal applied the ripeness test from Pacific Legal Foundation v. California Coastal Commission, 33 Cal.3d 158 (1982), evaluating: (1) whether the dispute is sufficiently concrete to make declaratory relief appropriate; and (2) whether the withholding of judicial consideration will result in a hardship to the parties. The Court of Appeal concluded that the case was in fact ripe for review, and the constitutional challenge to section 25531(a) is not dependent in any way on the facts of any particular Energy Commission licensing proceeding.
Acknowledging that appellants have appeared, are appearing, and intend to continue to appear in Commission power plant licensing proceedings, the Court of Appeal stated “there is no question in this case that the mandate of section 25531 will be routinely and uniformly applied in every future challenge to an Energy Commission siting decision, barring a finding of unconstitutionality. Thus, ‘we do not have to guess’ how the statute will be interpreted moving forward.” (Slip op. at pp. 14-15 (citation omitted).)
While challenges to the constitutionality of section 25531(a) are not new, the Court of Appeal’s reversal in this case gives Communities the opportunity for the issue to be heard fresh and in full, separate from an appeal of a specific Energy Commission decision before the California Supreme Court, which routinely summarily denies petitions for review of Commission decisions.