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 ― void and enforceable. The Warren-Alquist Act governs the Energy Commission and grants the Commission exclusive jurisdiction over the permitting of all thermal power plants in California that are 50 megawatts (MW) or larger.
Plaintiffs Communities for a Better Environment and Center for Biological Diversity originally filed their complaint in 2013, alleging that 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 to the California Supreme Court. Plaintiffs also challenged the constitutionality of section 25531(b), arguing that it restricts a court’s ability to review the facts of such challenges, in violation of the separation of powers. Our past blog posts, available here and here, detail the allegations in the underlying complaint, as well as the Court of Appeal decision declaring plaintiffs’ allegations ripe for review, reversing and remanding the case back to the Superior Court.
The decision hinges on the unique interplay between the authority of the California Public Utilities Commission (CPUC) and the Energy Commission, and provisions of the California Constitution that previously allowed for exclusive jurisdiction of review of CPUC decisions by the California Supreme Court. Before energy deregulation in 2001, thermal power plant developers had to obtain a certificate of public convenience and necessity from the California Public Utilities Commission (CPUC) as well as an Energy Commission license for a thermal power plant 50 MW or greater, with judicial review of both the license and certificate proceeding directly to the California Supreme Court. Article XII of the California Constitution gives the Legislature authority to establish the manner and scope of judicial review of CPUC 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 California Court of Appeal or California Supreme Court in section 10.
With energy deregulation in California, certificates of public convenience and necessity were no longer required for privately-developed power plants, and the Warren-Alquist Act was revised accordingly to remove the link between Energy Commission licenses and CPUC certificates. The provisions granting the California Supreme Court exclusive judicial review of Energy Commission licenses remained the same, however. By this time, the Legislature had also shifted review of CPUC decisions from the California Supreme Court to the California Court of Appeal. The Alameda Superior Court concluded here that the only nexus allowing for direct challenge of Energy Commission decisions to the California Supreme Court was this defunct link to California Supreme Court jurisdiction over CPUC decisions. Thus, California Supreme Court precedent dating to 1985 that had previously upheld California Public Resources Code section 25531(a) against a similar constitutional challenge was outdated, and overturned here.
The Supreme Court has routinely declined to hear appeals of Energy Commission decisions on power plants. This decision by the Alameda Superior Court means that Public Resources Code section 25903 now governs judicial challenges to power plant approvals from the Energy Commission and sets judicial review in superior court.