Exempt from Filing Fees Pursuant

EXEMPT FROM FILING FEES PURSUANT

TO GOVERNMENT CODE SECTION 6103

10.285

12/18/01

STEPHAN C. VOLKER (CSB #63093) LINDA D. PARKER (CSB #197615)

LAW OFFICES OF STEPHAN C. VOLKER

436 14th Street, Suite 1300

Oakland, California 94612

Tel: (510) 496-0600

Fax: (510) 496-1366

Attorneys for Petitioners/Plaintiffs

SANTA TERESA CITIZEN ACTION GROUP,

GREAT OAKS WATER COMPANY,

CITY OF MORGAN HILL, DEMAND

CLEAN AIR, INC. and CALIFORNIANS

FOR RENEWABLE ENERGY, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

SANTA TERESA CITIZEN ACTION GROUP, GREAT OAKS WATER COMPANY, CITY OF MORGAN HILL, DEMAND CLEAN AIR, INC. and CALIFORNIANS FOR RENEWABLE ENERGY, INC.
Petitioners/Plaintiffs,
v.
CALIFORNIA ENERGY COMMISSION, and DOES I through X, inclusive,
Respondents/Defendants.
CALPINE CORPORATION, and DOES XI throughC, inclusive,
Real Parties in Interest.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND ATTORNEYS’ FEES
(Civ. Code §3422; Code Civ. Proc. §§526, 527, 1060, 1085, 1087, 1094.5)

By this Verified Petition and Complaint petitioners/plaintiffs allege as follows:

PRELIMINARY STATEMENT

1. Petitioners/plaintiffs SANTA TERESA CITIZEN ACTION GROUP, GREAT OAKS WATER COMPANY, CITY OF MORGAN HILL, DEMAND CLEAN AIR, INC. and CALIFORNIANS FOR RENEWABLE ENERGY, INC. petition this Court for a writ of mandate pursuant to California Code of Civil Procedure ("CCP") sections 1085 and 1094.5 and for declaratory and injunctive relief pursuant to CCP sections 526, 527 and 1060 and Civil Code section 3422 setting aside the Adoption Order, Findings and Order dated September 24, 2001 and Order dated November 19, 2001 denying petitioners’ timely Petition for Reconsideration thereof (collectively, “Decision”) approving the Application for Certification (“AFC”) for a 580- megawatt gas-fired power plant known as the Metcalf Energy Center (“MEC Project” or “the Project”) issued by respondent/defendant CALIFORNIA ENERGY COMMISSION (“the CEC”or “the Commission”).

2. The Decision allows the siting of the MEC Project within the City of San Jose despite the Project’s violation of numerous local ordinances, regulations and standards, including the City of San Jose General Plan and Zoning Ordinance, on the grounds that the Project is required for public convenience and necessity and there are no more prudent and feasible means of achieving such convenience and necessity. But in purporting to make this determination, the Commission refused to consider contrary evidence, suppressed the critical concerns of its staff, exhibited bias against petitioners and otherwise denied petitioners a fair hearing. By purporting to approve the MEC Project without affording petitioners and the public a fair hearing and despite the Project’s numerous conflicts with local laws, the Commission has posed a direct threat to the health, safety and environmental quality of petitioners and the public.

3. Petitioners bring this action to protect: (1) the beautiful, bucolic but vulnerable North Coyote Valley and its wildlife from inappropriate industrial development, (2) nearby residential neighborhoods from harmful air emissions, noise and visual annoyance, (3) the pristine water quality of Coyote Creek and its Alluvial Aquifer from contamination from drift from the MEC Project’s proposed cooling towers, and (4) the fish, wildlife, aesthetic and recreational public trust resources of Coyote Creek and its tributary Fisher Creek from habitat displacement, noise, visual degradation and air pollution.

4. Petitioners bring this action on their behalf, and on behalf of the public, to compel the CEC to comply with the procedural due process protections of sections 1085 and 1094.5 of the Code of Civil Procedure, ArticleI, section 7 of the California Constitution and the Fourteenth Amendment of the United States Constitution, the Supremacy Clause of ArticleVI of the United States Constitution, and the Public Trust Doctrine in order to assure that (1) this Project's adverse impacts are fully disclosed, evaluated and, where feasible, mitigated, (2) the need (or lack thereof) for this Project is fairly presented and assessed, (3) reasonable alternatives to this Project are given full and fair consideration, and (4) petitioners and the public are afforded their constitutionally-protected right to a fair hearing untainted by prejudice, bias and the exclusion of evidence refuting the claimed urgent need for this Project.

5. Petitioners respectfully request that this Court issue alternative and peremptory writs of mandate commanding the CEC to rescind and vacate all of its approvals for the MEC Project, including its decisions to (1) approve the Application for Certification of the MEC Project, (2) override the MEC Project’s nonconformance with local laws, ordinances, regulations and standards, (3) adopt conditions of Certification, Compliance Verifications and associated procedures regarding operation of the MEC Project, (4) deny petitioners’ Petition for Reconsideration of the foregoing approvals, and (5) issue all other approvals to implement the MEC Project.

6. Petitioners also request this Court's declaratory and injunctive relief to declare unlawful and prevent grading, construction and other development activities implementing the foregoing approvals for the MEC Project unless and until the CEC complies with the procedural due process protections of the Code of Civil Procedure and the California and United States Constitution, the Supremacy Clause of Article VI of the United States Constitution, the Public Trust Doctrine, and the other laws whose violation is alleged herein.

PARTIES

7. Petitioner/plaintiff Santa Teresa Citizen Action Group (“STCAG”) is a non-profit public benefit corporation of concerned citizens residing in the vicinity of the proposed site for the MEC Project. Members of STCAG have a vital interest in protecting their health, safety and environmental quality from the MEC Project’s air emissions, noise and visual pollution. Members of STCAG use and enjoy North Coyote Valley, Coyote Creek and their fish and wildlife for recreation, aesthetic enjoyment, nature study and other beneficial purposes. The MEC Project threatens to harm these resources and uses.

8. Petitioner/plaintiff Great Oaks Water Company (“Great Oaks”) is a California corporation, and a public utility and water corporation within the meaning of California Public Utilities Code sections 216 and 241. Great Oaks was formed as a water company in April 1959, and engages in the business of selling water and related services to customers in and around the City of San Jose. Great Oaks and its customers are vitally interested in maintaining the pristine water quality of the Coyote Valley Alluvial Aquifer from which Great Oaks pumps the water that it delivers to its approximately 80,000 customers. Great Oak’s customers use and enjoy Coyote Creek and its fish and wildlife for recreation, aesthetic enjoyment, nature study and other beneficial uses. Great Oaks brings this action on its own behalf, and on behalf of each of its customers.

9. Petitioner/plaintiff City of Morgan Hill is a municipal corporation established under the laws of California authorized to provide municipal services and to regulate land uses within its boundaries. The City of Morgan Hill is vitally interested in protecting the health, safety and environmental safety of its residents. Morgan Hill’s residents live near the proposed site of the MEC Project and use and enjoy North Coyote Valley, Fisher Creek and Coyote Creek and their public trust fish and wildlife resources for recreation, aesthetic enjoyment, nature study and other beneficial uses. Morgan Hill and its residents bring this action to protect these public trust resources and to prevent the air pollution, excessive noise, aesthetic impairment and harm to the quiet and safe enjoyment of their lives and property that is threatened by the CEC’s Decision approving the Project.

10. Petitioner/plaintiff Demand Clean Air, Inc. is a non-profit public benefit corporation formed under the laws of California for the purpose of educating the public about air quality issues and protecting the public from harmful air emissions such as those threatened by operation of the MEC Project. Demand Clean Air, Inc. brings this action on its own behalf, and on behalf of each of its members, to protect them and the public from the harmful air emissions threatened by the MEC Project.

11. Petitioner/plaintiff Californians for Renewable Energy, Inc. is a non-profit public benefit corporation organized under the laws of California in 1999 for the purpose of educating the public about, and encouraging public agencies to consider, alternative forms of renewable energy as a means of avoiding (1) dependence on declining supplies of fossil fuels and (2) the harmful air emissions their use occasions. Californians for Renewable Energy, Inc. and its members are vitally interested in securing this Court’s review of the CEC’s Decision approving the Project because it ignores or understates the adverse impacts of the Project on human health and safety and environmental quality.

12. All petitioners and their members and residents are harmed by the Decision, and are beneficially interested in securing this Court’s review thereof, because in reaching the Decision, the CEC denied petitioners a fair hearing in numerous respects as alleged more particularly below, violating petitioners’ statutory, common law and constitutional rights to procedural due process, and their rights to compliance with federal law and the Public Trust Doctrine.

13. Respondent/defendant California Energy Commission (“the CEC” or “the Commission”) is an agency of the State of California established in accordance with the Warren- Alquist State Energy Resources Conservation and Development Act, California Public Resources Code section 25000 et seq. (“the Warren-Alquist Act”). The Warren-Alquist Act empowers the CEC to regulate the siting of energy and water projects. The CEC purported to approve the application of real party in interest Calpine Corporation for the siting of its proposed Metcalf Energy Center on September24, 2001. On November19, 2001, the CEC purported to deny petitioners’ timely Petition for Reconsideration of the CEC’s September24, 2001 approval. The CEC acted under Public Resources Code section 25530, which provides that “[a] decision or order of the commission on reconsideration shall have the same force and effect as an original order or decision.”

14. The CEC has authority under Public Resources Code section 25525 to certify applications for energy facilities that do not conform with applicable state, local or regional standards, ordinances, or laws where the Commission “determines that such facility is required for public convenience and necessity and that there are not more prudent and feasible means of achieving such public convenience and necessity.” In reaching its Decision purporting to make this determination as necessary to approve the Project despite its acknowledged violation of local laws, the CEC violated petitioners’ right to a fair hearing by (1) refusing to consider contrary evidence, (2)suppressing the critical concerns of its staff, (3) exhibiting bias against petitioners and (4) failing to afford petitioners proper notice of its purported hearing on petitioners’ motion for reconsideration.

15. Petitioners are informed and believe, and thereon allege, that real party in interest Calpine Corporation is, and at all times herein mentioned was, a corporation incorporated under the laws of the State of Delaware, and, as the proposed owner and intended operator of the MEC Project, is beneficially interested in the CEC’s Decision challenged herein.

16. Petitioners are unaware of the true names and capacities of real parties in interest DOES XI through C, and therefore sue such real parties in interest by fictitious names. Petitioners are informed and believe, and based on such information and belief allege, that the fictitiously named real parties in interest are directly and materially interested in or affected by the approvals challenged in this Petition and Complaint. When the true identities and capacities of these real parties in interest have been determined, petitioners will amend this Petition and Complaint, with leave of court if necessary, to insert such identities and capacities.

JURISDICTION AND VENUE

17. The Sacramento County Superior Court has jurisdiction of the matters alleged herein pursuant to Code of Civil Procedure sections 526, 527, 1060, 1085, 1087 and 1094.5.

STANDING

18. Petitioners have standing to assert the claims raised in this Petition and Complaint. As described above, petitioners are beneficially interested in this matter.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

19. Petitioners have performed any and all conditions precedent to the filing of this Petition and Complaint, and have participated in all phases of the administrative and environmental review process, and thus have fully exhausted their administrative remedies.

20. Respondents have taken final agency action with respect to the approvals challenged herein. Respondents have a mandatory duty to comply with local, state, and federal law, including, but not limited to, the procedural due process provisions of the Code of Civil Procedure and the California and United States Constitutions, the Supremacy Clause of the United States Constitution, and the Public Trust Doctrine, prior to undertaking the discretionary approvals at issue in this lawsuit. Petitioners possess no certain remedy to challenge the approvals at issue in this action on procedural due process, federal preemption and Public Trust Doctrine grounds other than by means of this lawsuit.

RELIEF REQUESTED

21. Petitioners seek an alternative writ of mandamus, a peremptory writ of mandamus, declaratory relief, temporary and permanent injunctive relief, costs, and attorneys' fees.

A. Alternative and Peremptory Writs of Mandamus

(Code Civ. Proc., §§1085, 1087)

22. Petitioners seek alternative and peremptory writs of mandate pursuant to Code of Civil Procedure section 1085, which provides that a writ of mandate “may be issued by any court... to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station,” Code of Civil Procedure section 1087, which provides that "[t]he writ may be either alternative or peremptory," and Code of Civil Procedure section 1094.5, which provides that a writ of mandate may be "issued for the purpose of inquiring into the validity of any final administrative order made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, ... board, or officer."

23. Petitioners seek alternative and peremptory writs of mandate on the grounds that, by approving the Project without first properly complying with the procedural due process protections of the Code of Civil Procedure and the California and United States Constitutions and the Public Trust Doctrine, the CEC prejudicially abused its discretion within the meaning of Code of Civil Procedure sections 1085 and 1094.5.