March 14, 2014
By Shana Lazerow, CBE Staff Attorney
Yesterday was rough at the Public Utilities Commission and Bay Area Air Quality Management District, which voted for power plants and against the people, (check out Not a Good Day for People Who Breathe) but today, we’re back to “building the future.”
To me, “building the future” means making sure the people who will have to live with the impacts of energy decisions have a voice in those decisions. Right now, people’s voices are very, very hard to hear when it comes to dirty new gas power plants. One major reason for that is the California Energy Commission (“CEC”). The CEC is the “one stop shop” for new dirty natural gas power plants, which means new power plants skip the local processes other industrial facilities go through in front of counties, cities and zoning boards.
When the CEC makes mistakes, as agencies tend to do, those mistakes can only be challenged in the California Supreme Court. This limitation on review is called “exclusive review”; exclusive because the rule excludes more common courts like the Superior Courts and Courts of Appeal. The Supreme Court’s review is entirely discretionary, so the Supreme Court can always refuse to review CEC decisions. In my experience, the Supreme always does refuse to review CEC decisions. To my knowledge, the court has never accepted review of a CEC power plant siting decision. I’ve tried to get the Court’s review of CEC decisions three times myself. It takes just as much work as a normal lawsuit, but your community never wins, or even gets the opportunity to have its “day in court” when it might win under the current law. Worst of all, the act of not reviewing is considered Supreme Court approval of the CEC action, so it’s as though you had your day in court and lost, but never even got to make your arguments. This is in stark contrast to the legal review process for challenging decisions by other agencies, like cities and counties, which permit new pollution sources other than power plants. All these other agencies’ errors can be challenged directly in California’s superior courts, which must review all cases brought before them.
There was a reason, back before the 1990’s and California’s electricity deregulation, for the CEC’s “exclusive review” provision. Back then, the CEC was not the only agency involved in power plant permitting, and it had to make a decision before the railroad commission (now known as the California Public Utilities Commission (“PUC”)) could act. Many things changed after deregulation: the CEC’s approval ceased to be a condition-precedent for the PUC; the statute that governs the CEC was amended to say, specifically, that CEC decisions can only be appealed to the Supreme Court; the statute that governs the PUC was amended to allow courts other than the Supreme Court to review PUC decisions; then of course there was Enron. But that’s fodder for another blog post…
Luckily for California’s communities, the restriction on where we can challenge a bad CEC decision is unconstitutional. The California Constitution mandates that all levels of California courts have authority to review agency actions. The only exception is for agencies that are created by the Constitution, which the CEC is not. Last fall we went to Superior Court to challenge the restriction. The CEC asked that we be dismissed because it was too abstract a case (because we were challenging the law itself instead of a specific CEC approval, which is known as a “facial” challenge, as opposed to an “as applied” challenge.) Of course, if we waited until the CEC approves the next powerplant (not a long wait, I’m sad to say) our only choice would be to ask the Supreme Court to review both the powerplant and the constitutionality of exclusive review. Call me a cynic, but based on my experience (see above re the Supreme Court has never accepted review of a CEC powerplant decision) I believe the Supreme Court would decline to hear the case. The judge agreed with the CEC. We disagree. So today, we’re appealing.
Why do we care about some constitutional principle about powers of various courts? Because (as I described yesterday) we have too many dirty gas plants already, and more are on the way. When you play Wackamole with powerplants, you need a good mallet – like a decent chance to appeal a wrong decision. Every one of those plants has to go to the CEC to get its environmental impacts reviewed, and in every one of those CEC reviews, our communities’ voices should have the opportunity to be heard.
Photo credit: Michael Coghlan
Alterations by CBE