City of Morgan Hill v. Bay Area Air Quality Management District

One who would construct and operate a California power plant must first obtain an interconnected set of federal, state and regional agency approvals. In this case, the City of Morgan Hill and others oppose approval of a natural gas power plant, arguing that the project fails to comply with the California Environmental Quality Act (CEQA). (See Pub. Resources Code, §§ 21000-21177.) An official of respondent Bay Area Air Quality Management District (District)—a regional agency charged to implement the federal Clean Air Act—issued a prevention of significant deterioration (PSD) permit for the power plant. (See 42 U.S.C. §§ 7401 -7671q.) After the power plant was also certified by respondent California Energy Resources Conservation and Development Commission (Commission), the District’s hearing board (Board) dismissed the City’s administrative appeal of the District official’s decision to issue the permit.

Turning to the courts, the City filed a petition for writ of mandate challenging the Board’s dismissal of its appeal and the District official’s issuance of the underlying permit. The trial court sustained demurrers to the petition without leave to amend on alternative…