Administrative Procedure Act. The Administrative Procedure Act (APA) sets the process state agencies must follow when an agency takes administrative action. Agencies offer quasijudicial administrative hearings to hear appeals of agency actions. The APA establishes standards for when the final decision of an administrative agency may be directly reviewed by the court of appeals. Legislation enacted in 2021 offers a more relaxed standard for direct review by a court of appeals that expires on July 1, 2026.
Effective until July 1, 2026, the final decision of an administrative agency in an adjudicative proceeding, may be directly reviewed by the court of appeals upon certification by the superior court. Transfer of cases does not require the filing of a motion for discretionary review with the court of appeals. The superior court may certify cases for transfer to the court of appeals upon finding the following:
If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal. A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals.
Environmental Boards. For purposes of direct review of final decisions environmental boards include the Pollution Control Hearings Board (PCHB), the Shorelines Hearings Board (SHB), and the Growth Management Hearings Board (GMHB). These boards review environmental and land use decisions from agencies and local governments, including the issuance of permits, orders, and civil penalties.
Clean Energy Projects. Clean energy projects are defined as the following facilities together with their associated facilities:
Direct Review by Court of Appeals Decisions Issued by the Environmental Boards Related to Clean Energy Projects. For the appeal of a permit related to a clean energy project that is the subject of a final adjudicative decision of an environmental board, upon a motion filed by any party to the appeal, the superior court shall certify a case for transfer to the court of appeals upon a finding that:
If the superior court certifies a final decision of an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.
A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals. Where a contesting party demonstrates that substantial prejudice would result from direct review by the court of appeals, the court of appeals may remand to the superior court.
Transfer of cases pursuant to this section does not require the filing of a motion for discretionary review with the court of appeals.
Direct Review by Court of Appeals of Decisions Issued by the Environmental Boards Not Related to Clean Energy Projects. The final adjudicative decision of an environmental board that does not relate to a clean energy project may be directly reviewed by the court of appeals upon certification by the superior court. The superior court shall certify cases for transfer to the court of appeals upon finding that:
If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.
A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals. Where a contesting party demonstrates that substantial prejudice would result from direct review by the court of appeals, the court of appeals may remand to the superior court.
Consolidation of Appeals Before the Environmental Boards. When multiple permits for the same underlying clean energy project have been appealed to one or more of the environmental boards, the presiding officer shall consolidate the appeals for hearing when one or more of the following criteria are met:
When appeals filed separately to the PCHB and SHB are consolidated, the following applies:
Appeal of Orders and Civil Penalties Issued Pursuant to Specified Environmental Laws. The jurisdiction of the PCHB to hear appeals arising from the issuance of civil penalties, orders, and decisions under various environmental laws is amended to include appeals arising pursuant to specified additional environmental laws, including:
Service of Process for Land Use Petitions. The procedure for effective service of process upon local jurisdictions in filing land use petitions is amended to permit service of process as designated by the local jurisdiction. Service on the local jurisdiction is effective upon delivery.
Waste-Derived Soil Amendments. A statute regarding an exemption from solid waste handling regulations for waste-derived soil amendments is repealed. A broader statute regarding an exemption from solid waste handling regulations for solid wastes put to a beneficial use is retained.
The committee recommended a different version of the bill than what was heard. Pro: This bill will help to expedite the appeals process. Getting the permitting and siting processes right is critical to creating new jobs and achieving clean energy goals. Prior efforts have focused on the EFSEC pathway, this bill will improve the non-EFSEC pathway. This bill improves the non-EFSEC process by allowing parties to go directly to the court of appeals instead of replicating the duplicative process in the superior courts which bears considerable costs. This bill also allows consolidation of appeals which will facilitate a more efficient process. This bill helps make the process more effective but retains opportunities for fact-finding and critical safeguards.
Other: Concerns are raised regarding the timelines presented for consolidated appeals. The 240 day timeline is too aggressive for a proceeding before the PCHB, let alone a consolidated appeal. The discovery and fact-finding processes necessary for a PCHB hearing require more time. A request is made for timelines that are consistent with other provisions of the APA and fair to all parties.