Opponents of a power plant near Blythe may proceed with a lawsuit that had been thrown out for being filed too late.

The Fourth District Court of Appeal overturned a trial court ruling that the lawsuit was filed after the statute of limitations and had some harsh words for the California Energy Commission for creating confusion.

On March 21, 2001, the Energy Commission issued a decision approving a power plant proposed by Blythe Energy LLC. That decision was filed with the Commission’s docket unit on March 26. Project opponents Alfredo Figueroa and Carmela Garnica filed a lawsuit challenging the project’s environmental impact report on May 11, 2001.

The Energy Commission pointed to the Warren-Alquist State Energy Resources and Conservation Development Act (Public Resources Code § 25000 et seq.), which sets a 30-day statute of limitation for filing a lawsuit over a Commission decision. The Commission contended the 30-day clock began to run when the decision was filed with the docket unit on March 26; therefore, the lawsuit was filed too late.

Riverside County Superior Court Judge Arjuna Saraydarian ruled for the Commission, but a unanimous three-judge panel of the Fourth District, Division Two, overturned the ruling.

At issue was when the decision was “issued” or “ready for judicial review.” That would be the date when the 30-day statute of limitations started to run. The Commission argued the decision was ready for judicial review when the decision was filed with the docket unit.

But the appellate court said things were not that straightforward. An Energy Commission regulation “provides that the effective date is not the date of filing of the decision with the docket unit, if the Energy Commission’s decision specifies a different effective date,” Justice James Ward wrote for the court. In this case — even though the Commission’s counsel declared otherwise — the decision specified an effective date “30 days after its filing.”

The Energy Commission argued that it simply adopted the normal rule of the regulation — not the exception — and pointed to language that said for reconsideration purposes the decision was “deemed adopted when filed with the Commission’s docket unit.”

The Fourth District would not have it, though. “The Energy Commission created the confusion in the first place by using a mishmash of different terms without ever defining the term ‘issuance’ as used in Public Resources Code § 25901. The Energy Commission also contributed further to the misunderstanding by submitting an incorrect factual declaration,” Justice Ward wrote. “ The Energy Commission cannot exploit the ambiguity it created.”

The lawsuit was returned to the trial court for further proceedings.

The Case:
Figueroa v. California Energy Resources Conservation and Development Commission, No. E030510, 03 C.D.O.S. 6585, 2003 DJDAR 8237. Filed July 25, 2003. Modified August 26, 2003 at 2003 DJDAR 9743.
The Lawyers:
For Figueroa: John Gabrielli, (530)753-0869.
For the Energy Commission: William Chamberlain, Commission counsel, (916) 324-3237.
For Blythe Energy LLC: Ward Benshoof, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1