Reconsiderations of Final Decisions FAQs

What is this document all about?

This guide is designed to provide helpful information to a party wishing to know more about the limited circumstances in which there can be further review, once a final decision on power plant certification has been made by the Energy Commission. This guide is provided for information only and is not intended to provide legal advice or to address every situation that may arise in applying for reconsideration or review of a final decision. Please seek the advice of a qualified attorney for answers to specific legal questions. The information in this guide is current through the date of publication, November 2005.

Can a party petition the Energy Commission to reconsider a final decision on power plant certification?

Yes; Public Resources Code section 25530 allows petitions for reconsideration. A petition for reconsideration must be filed within 30 days after the Commission's decision is docketed. The petition must specify the grounds for reconsideration including all alleged errors of fact or law. Within 30 days after a petition for reconsideration is received, the Commission will hold a hearing for the presentation of arguments on the petition, and will grant or deny the petition. If the petition is denied, that is the end of the matter. If the petition is granted, then the Commission will make a decision on the substantive merits of the petition after a subsequent public hearing, which must be held within thirty days after the Commission has granted the petition.

Can a final decision by the California Energy Commission on power plant certification be reviewed by a court?

Yes. Under Public Resources Code section 25531, the decisions of the Commission on any application for certification of a site and related facility are subject to judicial review by the Supreme Court of California - and only by that Court (i.e., not by the Superior Court of the Court of Appeal). Judicial review is sought by filing a "petition for a writ of mandate" with the Court.

In which court can judicial review be brought?

As noted above, section 25531of the Public Resources Code limits judicial review of the Commission's power plant site-certification decisions to the California Supreme Court. This means that the case may not be brought to the superior court or court of appeal.

What issues pertaining to power plant site certification may be reviewed by the Supreme Court of California?

Section 25531(b) of the Public Resources Code states that the only issue that the Court may consider is "whether the commission has regularly pursued its authority, including a determination of whether the . . . decision . . . violates any right of the petitioner under the United States Constitution or the California Constitution." Section 25531(b) also states that "[t]he findings and conclusions of the commission on questions of fact are final and are not subject to review"; however, the Commission believes that the issue "whether the commission has regularly pursued its authority" includes an assessment of whether the Commission's findings of fact are supported by "substantial evidence." Note that section 25531(b) limits the Court's review to the record developed during the Commission's certification proceeding, so no new evidence can be submitted to the Court. Parties should also note that the existence of evidence that they believe is strongly in favor of their position does not mean that there was not other "substantial evidence" in the record supporting a different position. The Supreme Court will not likely overturn the Commission's decision if it is supported by enough relevant information and reasonable inferences that a fair argument can be made to support the Commission's conclusions even if other conclusions could be reached that are equally or more reasonable.

What happens if a petition to the Supreme Court is denied?

A denial of a petition is considered a final decision on the merits for all legal challenges, including those based on constitutional claims. Therefore, the petitioner may not appeal this decision to any other California court.

What about challenges to small power plant exemption (SPPE) decisions?

According to Section 25541 of the Public Resources Code, the Commission may exempt from the ordinary certification process thermal power plants with a generating capacity of up to 100 megawatts and modifications to existing generating facilities that do not add capacity in excess of 100 megawatts. Such facilities are then permitted by the appropriate state, regional, and local authorities that have jurisdiction where the Commission does not act. Because such facilities are not certified by the Commission, Section 25531, which covers judicial review of Commission certification decisions, does not apply. As a result, the other judicial review provision applicable to Commission actions, Section 25901, does apply to SPPE decisions. That section calls for review in the Superior Court, but review is still limited to the evidentiary record before the Commission.

When can an aggrieved party petition for judicial review?

A petition must be filed within 30 days after the Commission adopts its final determination on the matter, whether a certification decision for which the petition is filed in the Supreme Court, or an SPPE decision for which the petition is filed in the Superior Court. In general, the date of adoption is the day on which the Commission's decision is docketed.

Please note: once a final decision on power plant certification is made, the 30 day time frame runs concurrently for both the petition for reconsideration to the Commission, and the petition for judicial review to the Supreme Court. (There is no reconsideration of an SPPE decision.)

Where can I obtain more information on the Judicial Review Process?

For more information, please refer to:

  • Title 20 California Code of Regulations section 1720 (Reconsideration of Decision or Order)
  • Public Resources Code section 25531 (Judicial Review)
  • Public Resources Code section 25901 (Writ of Mandate for Review)
  • Public Resources Code section 25541 (Thermal powerplants; exemption from chapter)
  • Santa Teresa Citizen Action Group v. California Energy Commission, 105 Cal.App.4th 1441, (Feb. 5, 2003).
  • The Public Adviser's Office

NOTICE: Distributed by the Public Adviser's Office. This is for informational purposes only. It is designed to assist you in understanding the process. It is, therefore, general in nature and does not discuss all exceptions and variations.