Communities for a Better Environment (CBE) and Center for Biological Diversity (Center) filed suit on May 29, 2013 to challenge the constitutionality of a provision of California law that requires appeal directly to the California Supreme Court of any decision on a thermal power plant license by the California Energy Commission.  The Supreme Court has discretion whether to take such appeals.  The lawsuit, filed May 29, 2013 in Alameda Superior Court, alleges that California Public Resources Code section 25531(a) violates article VI, section 10 of the California Constitution, by restricting the judicial forums available to citizens to challenge Energy Commission decisions.  The complaint also alleges that section 25531(b) restricts a court’s ability to review the facts of such challenges, in violation of the separation of powers. 

Section 25531 is part of the Warren-Alquist Act, which governs the Energy Commission and grants the Commission exclusive jurisdiction over the permitting of all thermal power plants in California that are 50 MW or larger.  For other electrical generating facilities, such as wind and solar farms and thermal power plants of less than 50 MW, legal challenges to agency decisions are filed in state superior court and go through the normal appeals process.

Plaintiffs have named the State Controller’s Office, as well as the Energy Commission, as defendants.  The complaint requests declaratory relief, that Section 25531(a) violates article VI, section 10 and Section 25531(b) violates the separation of powers doctrine.  Plaintiffs also seek injunctive relief, to enjoin the state from expenditure of funds to implement these provisions of the Warren-Alquist Act.

Plaintiffs note that the constitutionality of Public Resources Code section 25531(a) has been brought previously brought before the California Supreme Court.  In 1985, the Court upheld the statute against a challenge by the County of Sonoma that section 25531(a) violated article VI, section 10 of the California Constitution.  The Center and CBE argue that section 25531(a) was upheld in 1985, before deregulation of the energy sector in California changed the way power plants were permitted.  Before 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 license and Certificate proceeding directly to the Supreme Court under section 25531(a). 

The Supreme Court’s decision in County of Sonoma rested on the link between the Energy Commission’s certification of a plant and the PUC’s approval of a Certificate of Public Convenience and Necessity, and article XII of the Constitution.  Article XII gives the Legislature authority to establish the manner and scope of judicial review of PUC decisions, unlimited by other provisions of the Constitution, including article VI, section 10, which gives superior courts original jurisdiction in all cases except those specifically reserved to the Court of Appeal or Supreme Court in section 10.  It appears that the Center and CBE thought it was time for a fresh look at the issue, despite Supreme Court precedent already establishing the constitutionality of section 25531(a). 

The Supreme Court routinely declines to hear appeals of Energy Commission decisions on power plants.  In contrast, local approvals of energy facilities are often challenged in superior court under the California Environmental Quality Act.  Locally-permitted projects thus often face delay, uncertainty, and difficultly obtaining financing based on pending litigation –issues that Energy Commission-licensed power plants largely avoid.