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