Cmtys. for a Better Env't v. State Energy Res. Conservation & Dev. Comm’n

• Decision Date: 22 December 2017
• Docket Number: A141299
• Citation: 19 Cal.App.5th 725,227 Cal.Rptr.3d 486
• Court: California Court of Appeals Court of Appeals
• Parties: COMMUNITIES FOR A BETTER ENVIRONMENT et al., Plaintiffs and Appellants, v. STATE ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION et al., Defendants and Respondents.

19 Cal.App.5th 725

227 Cal.Rptr.3d 486

COMMUNITIES FOR A BETTER ENVIRONMENT et al., Plaintiffs and Appellants,

v.STATE ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION et al., Defendants and Respondents.

A141299

Court of Appeal, First District, Division 4, California.

Filed December 22, 2017

Earthjustice, Oakland, William Rostov, Tamara Zakim, Stacey P. Geis, Communities for a Better Environment, Shana Lazerow, Oakland, Roger Lin, for Appellants

Kamala D. Harris, Xavier Becerra, Attorneys General of California, Douglas J. Woods, Senior Assistant Attorney General, Constance L. LeLouis, Supervising Deputy Attorney General, Sylvia A. Cates, Benjamin M. Glickman, P. Patty Li, Deputy Attorneys General, for Respondent California State Controller

California Energy Commission, Michael J. Levy, Gabriel C. Vivas, Sacramento, Melanie Moultry, Taylor G. Rhodes, Kourtney C. Vaccaro, Kirk C. Oliver, Sacramento, Benjamin M. Glickman, P. Patty Li, Deputy Attorneys General, for Respondent State Energy Resources Conservation and Development Commission

KENNEDY, J.^*

The State Energy Resources Conservation and Development Commission (Energy Commission) is the state agency exclusively empowered to license thermal power plants of over 50 megawatts capacity. ( Pub. Resources Code, §§ 25120, 25500, 25517 ; see County of Sonoma v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 364–365, 220 Cal.Rptr. 114, 708 P.2d 693 ( Sonoma ).)¹ Indeed, pursuant to section 25500, the Energy Commission possesses "the exclusive power to certify all sites and related facilities in the state, whether a new site and related facility or a change or addition to an existing facility" and "[t]he issuance of a certificate by the commission shall be in lieu of any permit, certificate, or similar document required by any state, local or regional agency, or federal agency to the extent permitted by federal law, for such use of the site and related facilities ...." Subdivision (a) of section 25531 provides that Energy Commission decisions "on any application for certification of a site and related facility are subject to judicial review by the Supreme Court of California." Moreover, subdivision (b) of section 25531 circumscribes the scope of Supreme Court review in such matters by mandating that Energy Commission factual findings "are final and are not subject to review ...." Appellants Communities for a Better Environment and Center for Biological Diversity (collectively Communities or appellants) filed the instant action in Alameda County Superior Court seeking a declaration that both subdivisions of section 25531 are unconstitutional on their face. The trial court, however, sustained demurrers to Communities' complaint, without leave to amend, on the ground that the issues involved were not ripe for judicial resolution. As a result, the trial court dismissed the matter with prejudice. Communities now challenges this dismissal on several grounds, including the trial court's ripeness determination. Because we disagree with the trial court's conclusion that this matter is not currently ripe for review, we reverse.

I. BACKGROUND

According to the allegations in Communities' complaint for declaratory and injunctive relief (Complaint),² both appellants are nonprofit organizations involved in environmental protection issues throughout California. Appellants have "participated in" and "participated as a party in" a number of specified siting proceedings before the Energy Commission in the past, are currently participating in specified ongoing certification proceedings, and intend to continue participating in such proceedings in the future. Appellants assert that they "have a constitutional right to, and a beneficial interest in, judicial review of Energy Commission certifications in the lower courts under a scope of review that assesses whether the decision was supported by the facts." Appellants state their constitutional rights are essential to fulfillment of their respective missions, and the injury caused by denial of these rights—their inability to seek review in the lower courts and to challenge the Energy Commission's factual findings—can only be remedied through judicial intervention. Specifically, they claim that section 25531 is unconstitutional under article VI, section 10 of the California Constitution, "which provides original, non-exclusive jurisdiction over mandamus proceedings to the superior courts, courts of appeal, and Supreme Court alike." Appellants also contend that section 25531 violates the constitutional separation of powers doctrine by improperly limiting the power of the judiciary to assess the factual findings underlying Energy Commission licensing decisions.

The Complaint details the history of judicial review for Energy Commission certification decisions. When the Energy Commission was established in 1974 by the Warren-Alquist State Energy Resources Conservation and Development Act (Act), power plants had to obtain both a certification from the Energy Commission and a Certificate of Public Convenience and Necessity from the California Public Utilities Commission (PUC). At that time, the Act required that judicial review of an Energy Commission certification be conducted in the same manner as judicial review of the related PUC-issued certificate. Between 1974 and 1996, such PUC decisions were reviewable solely in the Supreme Court, and thus Energy Commission siting decisions were similarly subject to judicial review only by the high court. (See generally Sonoma , supra , 40 Cal.3d at pp. 363–367, 220 Cal.Rptr. 114, 708 P.2d 693.)

This practice was scrutinized by the Supreme Court in 1985 in Sonoma , supra , 40 Cal.3d 361, 220 Cal.Rptr. 114, 708 P.2d 693, and found to pass constitutional muster. The petitioner in that case—like Communities here—argued that section 25531, as it then existed, impermissibly infringed on the jurisdiction of the superior courts granted by article VI, section 10, of the California Constitution. ( Sonoma , at p. 367, 220 Cal.Rptr. 114, 708 P.2d 693.) In rejecting this constitutional challenge, the Sonoma court noted that the operative effect of section 25531 was to give the high court "exclusive jurisdiction over Energy Commission decisions that comprise a necessary ingredient of the certificate issued by the PUC." ( Sonoma , at p. 366, 220 Cal.Rptr. 114, 708 P.2d 693 ; see also id . at p. 368, 220 Cal.Rptr. 114, 708 P.2d 693 [concluding that the "central purpose" of section 25531 was to "expedite the operative effect of certain certificates of public convenience and necessity issued by the PUC"].) Pursuant to article XII of the California Constitution, the Legislature has been given "broad powers to confer authority upon the PUC and to provide for judicial review of its decisions ...."³ ( Sonoma , at p. 367, 220 Cal.Rptr. 114, 708 P.2d 693.) On this basis, the Supreme Court concluded that "the close relationship between the functions of the PUC and the narrow class of Energy Commission decisions affected by section 25531 brings that section's judicial review provisions within the broad legislative authority over PUC matters conferred by article XII." ( Sonoma , at p. 367, 220 Cal.Rptr. 114, 708 P.2d 693.)

The Complaint further alleges, however, that, after deregulation of the energy industry in the 1990's, power plant ownership was shifted to independent power producers who do not need a Certificate of Public Convenience and Necessity or any other approval from the PUC to construct a power plant. Rather, they may proceed solely on the basis of an Energy Commission certification. At the same time, the Legislature reportedly concluded that deregulation required broader judicial oversight of PUC decisions. In 1996, the Legislature amended the PUC's judicial review statute, allowing for review of adjudicatory PUC decisions in the courts of appeal as well as by the Supreme Court. (Stats. 1996, ch. 855, § 5.) Two years later, in 1998, the Legislature extended appellate court review to additional PUC decisions, stating: "The Legislature finds and declares that the conversion of the energy, transportation, and telecommunications industries from traditional regulated markets to competitive markets necessitates a change in the judicial review of Public Utilities Commission decisions that pertain to those industries. The Legislature finds that the activities of the energy, telecommunications, and transportation industries will require expanded access to the court system at all levels." (Stats. 1998, ch. 886, § 1.5(a).) The Legislature further stated that its intent was to "conform judicial review of the Public Utilities Commission decisions that pertain to utility service providers with competitive markets to be consistent with judicial review of the other state agencies." (Id. § 1.5(b).) Since, between 1996 and 2001, section 25531 still tied review of Energy Commission siting decisions to review of PUC certificates, the effect of these statutory changes was to make those Energy Commission decisions also reviewable by courts of appeal.

However, as the Complaint additionally asserts, in 2001, the Legislature amended section 25531 to remove reference to the PUC and again make Energy Commission certificates reviewable only by the Supreme Court. Communities claims that there are no reported instances where the Supreme Court has conducted a substantive review of a power plant siting decision under section 25531 since deregulation, essentially allowing the Energy Commission to act as "its own court of last resort." Moreover, Communities asserts, this practice can no longer be sanctioned by the Supreme Court's Sonoma decision, as the regulatory landscape has fundamentally changed, and Energy Commission certification decisions are no longer necessarily linked to PUC review. The Complaint thus seeks a declaratory judgment that section 25531 is, in its current incarnation, unconstitutional and void on its face.

As...