Judicial Review of California Energy Commission Siting Decisions: From Supreme to Superior (Court)

Since the founding of the California Energy Commission (CEC) in 1976, the California Supreme Court has had original jurisdiction over appeals of CEC decisions relating to the certification of power plants. The Supreme Court’s original jurisdiction over such appeals ensured that the CEC’s siting decisions approving thermal power plants became final and no longer subject to judicial appeal in a timely manner, rather than becoming entangled in extensive, time consuming litigation. The relatively short period to achieving finality of a CEC decision provided needed certainty for power plant developers, and facilitated necessary investment and development in the State’s electrical system.

In a March 17, 2021 decision in Communities For A Better Environment v. Energy Resources Conservation And Development Commission (S266386), the California Supreme Court denied review of a decision by the Alameda County Superior Court, finding unconstitutional the provisions of the Warren Alquist Act that vested the California Supreme Court with original jurisdiction of appeals of CEC siting decisions.

The California Supreme Court’s ruling means that new thermal power plants, and significantly, all amendments to existing powerplant certifications, will now be subject to judicial review at all three levels of the California Court System: the Superior Court, the Court of Appeal, and the California Supreme Court.

By design, this direct appeal to the California Supreme Court made powerplant decisions final and no longer subject to judicial review in weeks, not the years, required by three levels of appeals starting in California’s Superior Courts. This Supreme Court judicial review certainty in turn allowed project developers to know that their projects could proceed without legal impediment after finishing the CEC’s rigorous review.

The decision has far ranging implications for those developing new thermal power plants of 50 megawatts or more, and for the existing fleet of power plants subject to the CEC’s siting jurisdiction.

Contacts: ESHD Partners Christopher Ellison (cte(at)eslawfirm.com), Jeffery Harris (jdh(at)esalwfirm.com) and Samantha Neumyer (sgn(at)eslawfirm.com)