Opponents win OK to contest power plants in local courts

Californians can go to their local Superior Court to challenge the state Energy Commission’s approval of large new power plants that use natural gas or other fuels, a state appeals court has ruled, overturning a state law backed by energy companies.

The law, passed in 2001 during an energy crisis, required opponents of thermal power plants approved by the commission to file their objections with the state Supreme Court. That court decides which cases to review, and, environmental groups say, has not granted review of any challenges to power plants since 2001.

But the First District Court of Appeal in San Francisco said the 2001 law violates the state Constitution, which, with some specified exceptions, allows challenges to government actions to be filed in a county Superior Court where a judge would review the legality of the commission’s action. The judge’s ruling

could be appealed.

The Constitution “does not authorize the Legislature to constrain judicial review of Energy Commission decisions,” Justice Alison Tucher said in the 30 ruling, which upheld a January 2019 decision by a judge in Alameda County. She said another provision of the 2001 law, barring any judicial review of the commission’s determination of the facts in a power plant dispute, was also unconstitutional.

The appellate ruling was issued last week and updated Monday to require the state to pay legal costs of the environmental advocates who challenged the law.

The ruling does not bar new power plants or limit their number, but allows opponents to argue that the commission failed to properly consider the plants’ environmental effects or their impact on local communities. Opponents could also challenge the commission’s approval of modifications to existing plants.

“This victory in the fight against fossil fuel pollution marks an end to the Energy Commission’s monopoly over gas plant siting,” said Maya GoldenKrasner of the Center for Biological Diversity. “Communities faced with a prospective plant can now hold the commission accountable for curbing health and environmental harms and push for alternatives like renewable energy.”

“More than half of California’s dirty power plants are polluting in environmental justice communities, and most of them were licensed without any chance for those communities to have a ‘day in court’ challenging the impacts to their lives and lungs,” said Shana Lazerow, legal director of Communities for a Better Environment.

Most of the plants affected by the ruling would be powered by natural gas, Lazerow said. Challenges would be limited to larger plants, those generating more than 50 megawatts of power, and would not include hydroelectric plants or currently designed solar power plants, she said.

The Energy Commission, which defended the 2001 law in court, declined to comment. The commission, represented by Attorney General Xavier Becerra’s office, could seek review in the state Supreme Court. The Independent Energy Producers Association, an industry group, filed arguments supporting the commission.

The Energy Commission was created by a 1974 state law to review proposals for new power plants. The court said the commission’s authority was initially linked to the powers of the state Public Utilities Commission, which regulates privately owned utilities.

The PUC’s decisions can be challenged only in an appellate court or the state Supreme Court, a limit authorized by the California Constitution.

But state laws in recent decades have severed the link between the two commissions and have made it clear that the Energy Commission’s decisions, like those of most other state agencies, can be contested in Superior Court, Tucher said in the appellate ruling.

State lawyers argued that allowing review only in the state Supreme Court streamlines power plant review and avoids unnecessary delays. But Tucher said the state law specifies that if the onecourt review were struck down, “Energy Commission siting decisions shall receive priority review from the Superior Court” and in any later appeals.