Appeals court agrees to review whether decision to build Carlsbad Energy Plant followed rules

By Tara Mapes | Oct 7, 2016

SAN FRANCISCO – California's 1st District Court of Appeals announced on Sept. 14 that it agreed to review a decision by the Public Utilities Commission (PUC) to build a new multibillion-dollar energy plant.

The petition, filed in December by Protect Our Communities Foundation (POC) and the Center for Biological Diversity (CBD), asked the court to review the PUC's approval of the $2 billion, gas-fired Carlsbad Energy Center, which would be constructed to the replace older and less efficient Encina plant.

The opponents contended the PUC authorized San Diego Gas & Electric Company (SDG&E) to enter into a $2.6 billion contract that its customers will bear the financial burden of for the Carlsbad plant and its operation for the next 25 years. They also argued the PUC is required to determine if lower-cost and cleaner alternatives are available.

The POC and CBD's petition focused largely on assumptions made by the PUC when approving the new energy center. The groups say those assumptions were inaccurate, stating, “The urgency upon which the PUC based its decision is a fiction."

The petition states, “The sole justification for the PUC’s decision was a manufactured urgency to begin the plant construction immediately, so that the plant will be operational before 2018. To create that urgency, the PUC assumed that another San Diego power plant (the Encina plant) will have to retire.”

Stephanie Donovan, a representative for SDG&E, told the Northern California Record, “The operator of the state's power grid also has determined that SDG&E needs new gas-fired capacity by 2018 to address major reliability issues due to the shutdown of San Onofre and the expected retirement of a 60-year-old, inefficient power plant along the coast.”

Opponents disputed that fact, stating in their petition the Encina plant did not have to retire if it was truly needed to maintain electrical system reliability and that the PUC has the power to make that certain. The petition based most of the arguments on the fact that the PUC approved Carlsbad solely on the assumption Encina would retire and contended, “The PUC abdicated its responsibility, violated its own rules, failed to proceed in the manner required by law, and abused its discretion.”

Carlsbad, slated for NRG to build, would replace the Encina Power Station scheduled to retire in 2017 to comply with state regulations governing the use of ocean water for once-through cooling. Once-through cooling operates by drawing in seawater to normalize operating temperatures and poses harmful consequences for marine wildlife.

The California Court of Appeals granted the petition and will take a closer look in the coming months.

The Carlsbad Power Plant’s targeted location is on the beach in Carlsbad, San Diego County, next to the Agua Hedionda Lagoon. The plant would use water from the lagoon, which opponents argue is home to numerous protected wildlife species and would harm the surrounding fragile coastal and wetland habitat

Donavan said, “SDG&E strongly believes the region needs a project like the Carlsbad Energy Center; a fast-start, flexible resource that will help to maintain system reliability and smoothly integrate renewable resources into our energy mix.”

The POC issued a press release in response to the court's approval. “In this case, we are thrilled that the CPUC’s illegal actions in permitting this unneeded and dirty power plant will be reviewed by the courts," April Rose Sommer, POC executive director, said in the release. "The proposed Carlsbad power plant is the wrong technology, in the wrong place, at the wrong time. We do not need any new fossil-fueled power plants and we do not need any further development of our fragile coastlines. What we do need is to fulfill our legal and moral imperative to wean ourselves off our greenhouse gas addiction and transition to a sustainable energy system, and the court’s actions are a step in that right direction.”

The agreement to review the approval is just that; the court will take a closer look at the facts and contentions made by both sides, along with the laws and rules that govern the PUC approval process and issue its decision. Until then, both sides must wait.

“At this time, we’re still waiting to hear from the California Court of Appeals on their decision to review the CPUC’s approval of the Carlsbad Energy Center project. They could make a ruling at any time before the end of the year, but we have no indication of when that might be,” Donavan told the Northern California Record.



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