The Alameda Superior Court recently declared portions of the Warren-Alquist Act unconstitutional in Communities for a Better Environment v. Energy Resources Conservation and Development Commission (CBE v. Energy Commission). The Court found that California Public Resources Code section 25531(a) and a portion of section 25531(b) ― provisions of the Warren-Alquist Act concerning judicial review ―
California Energy Commission
Court of Appeal Rules Challenge to Constitutionality of Power Plant Licensing Appeals Process is Ripe for Judicial Review
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.…
Continue Reading Court of Appeal Rules Challenge to Constitutionality of Power Plant Licensing Appeals Process is Ripe for Judicial Review
New Law Takes Aim at GHG Associated with California’s Water Sector
The recent wave of climate change legislation in California also included a new and not particularly well-known law aimed at curbing greenhouse gas (“GHG”) emissions associated with water use. SB 1425 will create a voluntary registry to track the water sector’s energy use and GHG emissions.
According to Senator Pavley, the author of SB 1425, “While some of the water-energy related climate pollution is already covered in the state’s cap-and-trade program (via the electricity generation sector), the state does not currently have a clear accounting of the total greenhouse gas emissions associated with the water system.”
SB 1425 requires CalEPA to oversee the development of a registry for GHG emissions that result from the “water-energy nexus” using the best-available data. Participation in the registry is voluntary and open to water agencies, large water consumers, businesses and others conducting business in the state. SB 1425 provides that entities participating in the registry may qualify for GHG emission reduction incentives.
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New Lawsuit Challenges the California Supreme Court’s Original Jurisdiction over Power Plant Siting Cases
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.…
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California Energy Commission to Consider Proposed Expansion of Siting Jurisdiction
For information on interesting developments regarding the California’s siting jurisdiction, read the blog post by my colleague, Allison Smith.
DRECP EIS/EIR Scoping Meeting at the Energy Commission
It’s a double header at the California Energy Commission (CEC) today. The Renewable Energy Action Team – comprised of the CEC, the California Department of Fish and Game, the Bureau of Land Management (BLM), and the U.S. Fish and Wildlife Service (FWS) – is holding two public scoping meetings for the combined environment impact statement/environmental…
CEC Moves Forward on Implementation of 33% RPS
On June 3, the California Energy Commission (“CEC”) issued a Notice of Intent to Implement 33 Percent Renewables Portfolio Standard (“RPS”). The new 33% RPS was signed into law by Governor Brown on April 12, 2011. The legislation for the first time expanded the RPS to publicly-owned utilities (“POU”), and tasked the CEC with, among…
California RPS: 33% by 2020
Governor Brown is expected to sign SBX1-2, which increases California’s Renewable Portfolio Standard to 33% by 2020. With enactment of the bill, California will have the most aggressive renewable energy policy in the country. Details about the new legislation can be found in the Stoel Rives alert authored by Seth Hilton at: http://www.stoel.com/showalert.aspx?show=7805.