California’s 1st District Court of Appeal overturns dismissal in Energy Commission review case

By David Hutton | Jan 31, 2018

SAN FRANCISCO — In a unanimous decision, California’s 1st District Court of Appeal, 4th Division has overturned a lower court ruling that dismissed a lawsuit challenging reviews by the State Energy Resources Conservation and Development Commission.

Communities for a Better Environment had challenged a state law that protected the California Energy Commission from judicial review in certain circumstances.

Judge John W. Kennedy wrote the opinion, with Judges Ignazio Ruvolo and Jon B. Streeter concurring. Kennedy was assigned from the Contra Costa County Superior Court of California.

The Energy Commission is the state agency exclusively empowered under the Public Resources Code to license thermal power plants of over 50 megawatts capacity. The commission has the power to “certify all sites and related facilities in the state, whether a new site and related facility or a change or addition to an existing facility," the Jan. 19 opinion states.

Communities for a Better Environment filed its initial complaint in Alameda County Superior Court seeking a declaration that both subdivisions of Section 25531 are unconstitutional. 

Subdivision (a) of Section 25531 states that cite certifications are subject to judicial review, while Subdivision (b) “circumscribes the scope of Supreme Court review in such matters by mandating that Energy Commission factual findings are final and are not subject to review," according to the opinion.

“The trial court, however, sustained demurrers to Communities’ complaint, without leave to amend, on the ground that the issues involved were not ripe for judicial resolution,” Kennedy wrote.  

As a result, the trial court dismissed the matter with prejudice.

Communities for a Better Environment then filed an appeal, challenging the trial court’s "ripeness" determination. 

“Because we disagree with the trial court’s conclusion that this matter is not currently ripe for review, we reverse,” Kennedy wrote.

Communities for a Better Environment also argued that it has “a constitutional right to, and a beneficial interest in, judicial review of Energy Commission certifications in the lower courts under a scope of review that assesses whether the decision was supported by the facts," according to the opinion. The organization also argued that judicial intervention is key to protect its constitutional rights to seek review in lower courts and challenge the Energy Commission’s findings.

Communities for a Better Environment's complaint also alleges that after the energy industry was deregulated in the 1990s, power plant ownership was shifted to independent power producers who do not need a Certificate of Public Convenience and Necessity or any other approval from the California Public Utilities Commission to construct a power plant.

Kennedy noted in the opinion that in the ongoing case, it is not disputed that the constitutional challenge to Section 25531 raised by Communities for a Better Environment is not dependent on the facts of any particular Energy Commission certification proceeding.

 The court also cited City of Sonoma v. State Energy Resources Conservation etc.

“Indeed, when the Supreme Court previously addressed related constitutional issues in Sonoma, it did so despite the fact that the petitioner did not brief the merits of the underlying certification dispute and had agreed to withdraw its request for review of the Energy Commission’s decision if the Supreme Court found section 25531 to be valid, which the high court ultimately did,” Kennedy wrote.

Communities for a Better Environment also argued that the Supreme Court has rejected every challenge to an Energy Commission certification since deregulation.

“In sum, under all of these circumstances, we conclude that the ripeness requirement should not operate in this case to prevent the trial court from resolving the concrete dispute before it, given that the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question,” Kenned concluded.

As a result, the judgment was revered and the appellants are entitled to their costs on appeal.

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