52 Cal. 4th 499, 257 P.3d 81, 128 Cal. Rptr. 3d 658

Filed 8/15/11



IN THE SUPREME COURT OF CALIFORNIA



VOICES OF THE WETLANDS,

Plaintiff and Appellant,

S160211

v.

Ct.App. 6 H028021

STATE WATER RESOURCES

CONTROL BOARD, et al.,

Monterey County

Defendants and Respondents; )

Super. Ct. No. M54889

DUKE ENERGY MOSS LANDING, LLC, )
et al.,

Real Parties in Interest and

Appellants.

____________________________________)


Voices of the Wetlands, an environmental organization, filed this

administrative mandamus action in the Monterey County Superior Court to

challenge the issuance, by the California Regional Water Quality Control Board,

Central Coast Region (Regional Water Board), of a federally required permit

authorizing the Moss Landing Powerplant (MLPP) to draw cooling water from the

adjacent Moss Landing Harbor and Elkhorn Slough.1 The case, now more than a

1

In the case title in this court, and hereafter in our discussion, we refer to

Voices of the Wetlands, the mandamus petitioner, as ?plaintiff.? (See Cal. Style
Manual (4th ed. 2000) ? 6:28, pp. 230-231.) The mandamus petition named as
respondents the State Water Resources Control Board (State Water Board) and the
Regional Water Board. In the case title in this court, and hereafter as convenient

(Footnote continued on next page.)

1


decade old, presents issues concerning the technological and environmental

standards, and the procedures for administrative and judicial review, that apply

when a thermal powerplant, while pursuing the issuance or renewal of a cooling

water intake permit from a regional water board, also seeks necessary approval

from another state agency, the State Energy Resources Conservation and

Development Commission (Energy Commission), of a plan to add additional

generating units to the plant, with related modifications to the cooling intake

system.

Against a complex procedural backdrop, we will reach the following

conclusions:

First, the superior court had jurisdiction to entertain the administrative

mandamus petition here under review. We thus reject the contention of

defendants and the real party in interest that, because the substantive issues

plaintiff seeks to raise on review of the Regional Water Board?s decision to renew


(Footnote continued from previous page.)

in our discussion, we refer to these parties as ?defendants.? (Ibid.) The
mandamus petition also named Duke Energy North America LLC and its
subsidiary, Duke Energy Moss Landing, LLC (collectively Duke), then the
MLPP?s owners, as real parties in interest. At some point, apparently during the
appellate process, the MLPP changed ownership. The current owner is Dynegy
Moss Landing LLC (Dynegy), an entity unrelated to Duke. Dynegy has filed all
pleadings and briefs in this court as the MLPP?s owner and as real party in
interest. As Duke?s successor in interest, Dynegy is entitled to continue the action
in Duke?s name (Code Civ. Proc., ? 368.5), and Dynegy has not moved to
substitute itself as a formally named party (see Cal. Rules of Court, rule 8.36(a)).
Accordingly, to maintain title symmetry with the Court of Appeal decision, and to
facilitate tracking and legal research by the bench, bar, and public, we have
retained Duke in the case title in this court as the real parties in interest and
appellants. (See Cal. Style Manual, supra, ? 6:28, p. 230.) As the context
dictates, our discussion hereafter refers variously to Duke, Dynegy, or ?real party
in interest? (singular or plural), or ?the MLPP?s owner.?

2


the plant?s cooling water intake permit were also involved in the Energy

Commission?s approval of the plant expansion, statutes applicable to the latter

process placed exclusive review jurisdiction in this court.

Second, the trial court did not err when, after concluding that the original

record before the Regional Water Board did not support the board?s finding on a

single issue crucial to issuance of the cooling water intake permit, the court

deferred a final judgment, ordered an interlocutory remand to the board for further

?comprehensive? examination of that issue, then denied mandamus after

determining that the additional evidence and analysis considered by the board on

remand supported the board?s reaffirmed finding.

Third, recent United States Supreme Court authority confirms that, when

applying federal Clean Water Act (CWA) standards for the issuance of this permit,

the Regional Water Board properly utilized cost-benefit analysis, and in particular

a ?wholly disproportionate? cost-benefit standard, to conclude that the MLPP?s

existing cooling water intake design, as upgraded to accommodate the plant

expansion, ?reflect[ed] the best technology available for minimizing adverse

environmental impact.? (CWA, ? 316(b); 33 U.S.C. ? 1326(b) (hereafter CWA

section 316(b)), italics added.)

We decline to address several other issues discussed by the parties. For

instance, plaintiff insists the Regional Water Board violated CWA section 316(b)

by approving compensatory mitigation measures ? a habitat restoration program

funded by the MLPP?s owner ? as a means of satisfying the requirement to use

the best technology available (BTA). The legal issue whether section 316(b)

allows such an approach is certainly significant (see Riverkeeper, Inc. v. U.S.

E.P.A. (2d Cir. 2007) 475 F.3d 83, 110 (Riverkeeper II); Riverkeeper, Inc. v. U.S.

E.P.A. (2d Cir. 2004) 358 F.3d 174, 189-191 (Riverkeeper I)), and it has not been

finally resolved.

3


However, the trial court found, as a matter of fact, that the Regional Water

Board had not directly linked the habitat restoration program to its BTA

determination. The Court of Appeal concluded that the trial court?s no-linkage

finding had substantial evidentiary support. Here, as in the Court of Appeal,

defendants and real party decline to pursue the legal issue, urging only that the

trial court?s factual finding should not be disturbed. As so framed, the issue

presented is case and fact specific, and involves no significant question of national

or statewide importance. Accordingly, we exercise our discretion not to consider

it. (See Cal. Rules of Court, rule 8.516(b)(3).) By so proceeding, we expressly do

not decide whether compensatory mitigation and habitat restoration measures can

be a component of BTA, and we leave that issue for another day.

Finally, in its briefs on the merits, plaintiff advances issues it did not raise

in its petition for review. Plaintiff now insists the evidence in the administrative

record does not support the Regional Water Board?s finding that the costs of

alternative cooling technologies would be ?wholly disproportionate? to their

environmental benefits. Plaintiff also urges that even if the board properly

considered compensatory restoration measures as a means of satisfying BTA, the

record does not support its determination that the habitat restoration project it

approved was sufficient to offset the environmental damage caused by the

MLPP?s cooling system.

These issues are case and fact specific, did not factor into our decision to

grant review, and do not currently appear to be matters of significant national or

statewide interest. Again, therefore, we decline to address them.

Accordingly, we will affirm the judgment of the Court of Appeal.

4


FACTS AND PROCEDURAL BACKGROUND

The MLPP, in operation under various owners for nearly 60 years, sits at

the mouth of Elkhorn Slough, an ecologically rich tidal estuary that drains into

Monterey Bay between the cities of Santa Cruz and Monterey. As a thermal

powerplant, the MLPP uses superheated steam to generate electricity. The plant?s

cooling system appropriates water from Moss Landing Harbor, and water from the

adjacent slough is also drawn into the system. The MLPP has traditionally

employed a once-through cooling system, in which water continuously passes

from the source through the plant, then back into the source at a warmer

temperature. The thermal effects of the cooling system aside, the intake current

kills some aquatic and marine life by trapping larger organisms against the intake

screens (impingement) and by sucking smaller organisms through the screens into

the plant (entrainment).2

Under the CWA, the MLPP must have a National Pollutant Discharge

Elimination System (NPDES) permit in order to draw cooling water from the

harbor and slough. The discharge of a ?pollutant? from a ?point source? into

navigable waters may only occur under the terms and conditions of such a permit,

which must be renewed at least every five years. (33 U.S.C. ?? 1311, 1342(a),


2

Alternative cooling technologies exist, particularly including closed-cycle

and dry-cooling systems. A closed-cycle system uses a holding basin, reservoir,
or tower to retain, cool, and continuously recycle a single supply of cooling water
within the plant. Such a system requires renewal from an outside water source
only to replace evaporation loss. Dry cooling eliminates the need for cooling
water, instead employing air as the cooling medium. These designs substantially
reduce or eliminate impingement and entrainment damage, as compared to a once-
through water cooling system, but they may produce their own adverse
environmental effects, and converting an existing powerplant from a once-through
system to closed-cycle or dry-cooling technology involves significant additional
expense.

5


(b).) In California, NPDES permits, which must comply with all minimum federal

clean water requirements, are issued under an EPA-approved state water quality

control program administered, pursuant to the Porter-Cologne Water Quality

Control Act (Porter-Cologne Act; Wat. Code, ? 13000 et seq.), by the State Water

Board and the nine regional water boards. (Id., ?? 13372, 13377; see 33 U.S.C.,

? 1342(b); 40 C.F.R. ?? 123.21-123.25 (2011); 39 Fed.Reg. 26061 (Jul. 16, 1974);

54 Fed.Reg. 40664-40665 (Oct. 31, 1989).)

In 1999, Duke applied to the Energy Commission for approval of Duke?s

plan to modernize the MLPP by adding two new 530-megawatt gas-fired

generators. These new units would supplement the two 750-megawatt generators,

units 6 and 7, already in operation, and would replace units 1 through 5, older

generators that were no longer being used. Pursuant to the Warren-Alquist State

Energy Resources Conservation and Development Act (Warren-Alquist Act; Pub.

Resources Code, ? 25000 et seq.), the siting, construction, or modification of a

thermal powerplant with a generating capacity in excess of 50 megawatts must be

certified by the Energy Commission. (Id., ?? 25110, 25120, 25500.) As set forth

in greater detail below, the commission?s certification must be consistent with all

applicable federal laws (id., ?? 25514, subd. (a)(2), 25525), and is ?in lieu of any

permit, certificate, or similar document required by any state, local or regional

agency, or federal agency to the extent permitted by federal law? (id., ? 25500).

Concurrently with its Energy Commission application, Duke applied to the

Regional Water Board for renewal of its NPDES permit ? which was due to

expire in any event ? and to include therein terms and conditions consistent with

operation of the new generators. In both applications, Duke proposed various

modifications to the design and operation of the existing once-through cooling

6


system, both to accommodate the new generators, and to minimize aquatic and

marine mortality resulting from cooling water intake operations.3 However, the

proposal did not contemplate conversion of the plant to either a closed-cycle or a

dry-cooling system (see fn. 2, ante).

In order to renew the plant?s NPDES permit, the Regional Water Board was

required, among other things, to determine, under section 316(b) of the CWA, that

?the location, design, construction, and capacity of [the MLPP?s] cooling water

intake structures reflect[ed] the best technology available for minimizing adverse

environmental impact [i.e., BTA].? (33 U.S.C. ? 1326(b); see id.,

?? 1316(b)(1)(A), 1342(b)(1)(A).) In the year 2000, when the MLPP?s Energy

Commission and Regional Water Board applications were pending, there were no

federal regulations in place directing permitting agencies how to apply the BTA

standard. When lacking regulatory guidance for applying the CWA?s NPDES

permit standards, including section 316(b)?s BTA standard for cooling water

intake structures, agencies were expected to exercise their ?best professional

judgment? on a case-by-case basis. (See, e.g., Entergy Corp. v. Riverkeeper, Inc.

(2009) 556 U.S. 208, ___ [129 S.Ct. 1498, 1503] (Entergy Corp.); National

Resources Defense Council v. U.S. E.P.A. (9th Cir. 1988) 863 F.2d 1420, 1425.)


3

As the Regional Water Board?s order issuing the NPDES permit explained,

the MLPP had two cooling water intake stations, one which served the currently
operational units 6 and 7, and the other, then inactive, which had served the retired
units 1 through 5. Under the MLPP proposal, this latter station would be
reactivated to serve the proposed new generators. Changes in the design and
operation of the existing once-through cooling system would be employed to
reduce impingement mortality, including alterations in the angles of the intake
screens, the use of finer mesh on the screens, reductions in cooling water intake
velocity made possible by the design of the new generators, and the elimination of
a 350-foot tunnel in front of the intake screens.

7


The Energy Commission and Regional Water Board proceedings went

forward concurrently, and were coordinated to a significant degree. As noted by

the Court of Appeal, ? ?the [Energy] Commission and the [Regional Water Board]

formed a Technical Working Group (TWG) made up of representatives from

various regulatory agencies, the scientific community, and Duke . . . . The TWG

worked to design biological resource studies and then validate the results of those

studies.? ?

On October 25, 2000, after full agency review and opportunity for public

comment, the Energy Commission approved the application for certification and

authorized construction of the MLPP modernization project. Under the federal-

compliance provisions of the Warren-Alquist Act, the commission addressed the

BTA issue. In this regard, the commission determined that design alternatives to

Duke?s proposed modifications of the MLPP?s cooling intake system either would

not significantly reduce environmental damage to the source of cooling water, or

were economically infeasible, and that the proposed modifications represented the

most effective economically feasible alternative considered. The commission thus

concluded that this proposal represented BTA for purposes of section 316(b) of the

CWA, though it ?recommend[ed]? that, prior to each five-year renewal of the

NPDES permit, the Regional Water Board require the plant?s owner to provide an

analysis of ?alternatives and modifications to the cooling water intake system

1.) which are feasible under [the California Environmental Quality Act] and

2.) [which] could significantly reduce entrainment impacts to marine organisms.?

As a separate condition of certification, the Energy Commission specified

that the MLPP?s owner would provide $7 million to fund an Elkhorn Slough

watershed acquisition and enhancement project. The commission concluded that

compliance with ?existing and new permits, including the . . . NPDES . . .

permit[,] will result in no significant water quality degradation.? Finally, the

8


commission entered a formal finding that the conditions of certification, if

implemented, would ?ensure that the project will be designed, sited, and operated

in conformity with applicable local, regional, state, and federal laws, ordinances,

regulations, and standards, including applicable public health and safety standards,

and air and water quality standards.?

On October 27, 2000, after similar full procedures, the Regional Water

Board issued its revised Waste Discharge Requirements Order No. 00-041 (Order

No. 00-041), which included NPDES permit No. CA0006254, applicable to the

MLPP. The stated purpose of the order was to permit, pursuant to conditions and

limitations specified in the order, the ?discharge of industrial process wastewater,

uncontaminated cooling water and storm water from the [MLPP].?

In finding No. 48 of its order, the Regional Water Board addressed CWA

section 316(b)?s BTA mandate, as required for issuance of the permit. The order

recited that the powerplant ?must use BTA to minimize adverse environmental

impacts caused by the cooling water intake system. If the cost of implementing

any alternative for achieving BTA is wholly disproportionate to the environmental

benefits to be achieved, the Board may consider alternative methods to mitigate

these adverse environmental impacts. In this case the costs of alternatives to

minimize entrainment impacts are wholly disproportionate to the environmental

benefits. However, Duke Energy will upgrade the existing intake structure for the

new units to minimize the impacts due to impingement of larger fish on the

traveling screens, and will fund a mitigation package to directly enhance and

protect habitat resources in the Elkhorn Slough watershed. . . .? (Italics added.)

In finding No. 49, the Regional Water Board set forth the required cooling

system modifications and the environmental results to be expected therefrom.

Subsequent findings detailed the features of the habitat enhancement program to

be funded by a $7 million deposit from the powerplant?s owner.

9


No person or entity sought administrative or judicial relief to stop or stay

construction or operation of the plant additions and modifications under the terms

and conditions of the Energy Commission?s certification order, nor was any other

form of judicial review of the commission?s order pursued. The project to install

the two new generating units at the MLPP, with attendant modifications to the

cooling intake system, has since been constructed, and has been in operation since

2002.

Meanwhile, plaintiff did file with the State Water Board an administrative

appeal of the Regional Water Board?s Order No. 00-041. On June 21, 2001, the

State Water Board rejected the appeal.

On July 26, 2001, plaintiff filed the instant petition for administrative

mandamus (Code Civ. Proc., ? 1094.5 (section 1094.5)) in the Monterey County

Superior Court (No. M54889). The petition claimed that the Regional Water

Board had failed to comply with the CWA, in that the October 2000 NPDES

permit issued to Duke did not satisfy the BTA requirement of section 316(b) of

that statute. The prayer for relief asked that Order No. 00-041, issuing the permit,

be set aside. However, plaintiff did not seek injunctive or other relief to halt,

delay, or suspend the operative effect of the 2000 NPDES permit while the

mandamus challenge was pending.4

Defendants and real parties demurred to the petition, asserting, among other

things, lack of subject matter jurisdiction, in that the claims for relief concerned

matters determined by the Energy Commission, whose decisions the Warren-

Alquist Act insulates from review by the superior court. The commission, as


4

The 2000 NPDES permit here at issue expired in 2005. We are advised

that the MLPP?s cooling system is currently operating under an administrative
extension of this permit. (See 40 C.F.R. ? 122.6 (2011).)

10


amicus curiae, filed a supporting memorandum. The trial court overruled the

demurrers. Duke sought a writ of mandate in the Court of Appeal, Sixth Appellate

District, to challenge this decision. (Duke Energy Moss Landing v. Super. Ct.,

May 3, 2002, H024416.) The Court of Appeal summarily denied mandate.

The superior court then considered plaintiff?s claims on the merits. On

October 1, 2002, after a hearing, the court issued its intended decision. In this

tentative ruling, the court rejected finding No. 48 of the Regional Water Board?s

Order No. 00-041 ? the board?s determination that the MLPP?s cooling water

system satisfied BTA ? concluding that this finding was not supported by the

weight of the evidence. The intended decision proposed to order issuance of a

peremptory writ of mandate, directing the board ?to conduct a thorough and

comprehensive analysis of [BTA] applicable to the [MLPP].? However, the

intended decision specified that ?[n]othing in this decision compels an interruption

in the ongoing plant operation during the . . . board?s review of this matter.?

On October 29, 2002, after receiving initial objections from real parties, the

court designated the intended decision as the statement of decision and ordered

plaintiff to prepare a proposed judgment for review and signature. Plaintiff

submitted a proposed judgment granting a peremptory writ of mandate and setting

aside the challenged NPDES permit.

Defendants and real parties objected that a judgment setting aside the

permit would conflict with the intended decision?s proviso that no interruption in

current plant operations was being ordered, and would require the Regional Water

Board to start the NPDES permit process over from ?square one.? These parties

submitted an alternative proposed judgment that granted the peremptory writ and

remanded to the board ?for further proceedings in [the board?s] discretion that are

consistent with this Judgment and the Statement of Decision,? again specifying

11


that nothing in the judgment compelled an interruption in ongoing plant operations

pending the board?s review.

Ultimately, on March 7, 2003, the court issued an order which (1) stated

that finding No. 48 was not supported by the weight of the evidence, (2) remanded

Order No. 00-041 to the Regional Water Board ?to conduct a thorough and

comprehensive analysis with respect to Finding No. 48,? and (3) directed the

board to advise the court when it had completed its proceedings on remand ?so

that the [c]ourt may schedule a status conference.? Plaintiff?s petition for mandate

in the Court of Appeal, seeking to set aside the March 7, 2003, order (Voices of the

Wetlands v. Super. Ct., Apr. 18, 2003, H025844) was summarily denied.

On remand, the Regional Water Board issued a notice soliciting written

testimony, evidence, and argument from the parties ? including, for this purpose,

both plaintiff and the Energy Commission ? as to (1) what alternatives to once-

through cooling were effective to reduce entrainment, (2) the costs, feasibility, and

environmental benefits of such alternatives, and (3) whether the costs of any such

alternatives were wholly disproportionate to their environmental benefits. The

parties, and the board?s staff, thereafter submitted voluminous materials in

conformity with the notice.

On May 15, 2003, the Regional Water Board held a public hearing on the

issues specified in the remand order. Plaintiff participated in the hearing. The

parties had the opportunity to summarize their evidence, cross-examine witnesses,

and present closing arguments. Members of the public in attendance were also

allowed to comment. The board members? discussion indicated a majority view

that closed-cycle cooling, despite its ability to reduce entrainment, would actually

have adverse effects on air and water quality and would reduce plant efficiency,

and that more expensive cooling alternatives were not justified by their

environmental benefits, given the overall good health of the adjacent marine

12


habitat after 50 years of plant operations. These considerations, the board majority

concluded, supported the original determination that the costs of alternatives to the

MLPP?s once-through cooling system were wholly disproportionate to the

corresponding environmental benefits. By a four-to-one vote, the board approved

a motion declaring that, for the reasons specified in the foregoing discussion,

?Finding [No.] 48 in NPDES order 00041 is supported by the weight of the

evidence.?

Plaintiff filed an administrative appeal of the Regional Water Board?s

decision on remand. The State Water Board summarily denied the appeal on

grounds that it failed to ?raise substantial issues that are appropriate for review.?

On October 15, 2003, plaintiff filed a second superior court mandate

petition (Voices of the Wetlands v. Cal. Regional Water Quality Control Bd.,

Super. Ct. Monterey County, No. M67321), attacking the Regional Water Board?s

resolution on remand on multiple grounds. On July 21, 2004, acting on the

petition at issue here, No. M54889, the court issued a statement of decision

resolving the postremand issues the parties had agreed remained open. In

pertinent part, the court ruled that (1) the board?s limitation on the scope of the

remand issues complied with the court?s remand order, (2) in deciding whether

Finding No. 48 had sufficient support, the court could consider the new evidence

developed on remand, (3) plaintiff was correct that mitigation measures could not

be considered in determining BTA (citing Riverkeeper I, supra, 358 F.3d 174), but

the board had not used the $7 million Elkhorn Slough habitat restoration plan as a

?substitute? for selecting BTA, and the board?s BTA determination ?[did] not rest

on that plan as the basis for its [BTA] finding,? and (4) the board on remand

conducted ?a sufficiently comprehensive analysis of the potential technological

alternatives? to once-through cooling, ?and the record contains a realistic basis for

13


concluding that the existing modified [cooling] system provides [BTA] for the

[MLPP].?

On August 17, 2004, the court entered judgment denying a peremptory writ

of mandate in No. M54889. On the parties? stipulation, the court thereafter

entered an order of dismissal with prejudice in No. M67321.

Plaintiff appealed in No. M54889, urging that the trial court erred in

ordering an interlocutory remand, and in denying mandate to overturn the NPDES

permit on grounds that the Regional Water Board had improperly determined

BTA. Defendants and real parties in interest cross-appealed on the issue whether

the superior court had jurisdiction to entertain the mandamus petition.

Meanwhile, in July 2004, the EPA finally promulgated regulations setting

BTA standards for the cooling systems of existing powerplants. (69 Fed.Reg.

41576-01 (Jul. 9, 2004); see 40 C.F.R. ? 125.90 et seq. (2011) (Phase II

regulations).)5 As explained in greater detail below, the Phase II regulations

established national performance standards based on the impingement and

entrainment mortality rates to be expected from closed-cycle cooling (see fn. 2,

ante). However, the regulations allowed existing facilities to meet those standards

by alternative cooling system technologies, or, where reliance on such a

technology alone was less feasible, less cost effective, or less environmentally

desirable, by using restoration measures as a supplementary aid to compliance.

A facility could also obtain a site-specific determination of BTA based on

performance ?as close as practicable? to the national standards, where, in the

particular case, the costs of strict compliance would be ?significantly greater? than


5

The EPA had previously issued regulations governing BTA for the cooling

systems of new powerplants. (Phase I regulations.)


14


those considered by the EPA director when formulating the regulations (the ?cost-

cost? alternative), or than the environmental benefits to be expected (the ?cost-

benefit? alternative). (40 C.F.R. ? 125.94 (2011).)

In 2007, while the instant appeal was pending, the United States Court of

Appeals for the Second Circuit issued its decision in Riverkeeper II, addressing the

Phase II regulations.6 The Riverkeeper II court concluded that these regulations

were invalid under section 316(b) of the CWA insofar as they permitted the use of

(1) cost-benefit analysis (as opposed to stricter cost-effectiveness analysis)7 and

(2) compensatory restoration measures for purposes of determining BTA.

(Riverkeeper II, supra, 475 F.3d 83, 98-105, 108-110, 114-115.)

Thereafter, the Court of Appeal for the Sixth Appellate District

unanimously affirmed the trial court judgment in this case. The Court of Appeal

concluded that (1) the superior court properly entertained the mandamus petition;

(2) the court did not err by ordering, in advance of a final judgment, an

interlocutory remand to the Regional Water Board; (3) the board properly

considered new evidence on remand; (4) section 316(b) of the CWA does not

permit the use of compensatory restoration measures as a factor in establishing

BTA (citing Riverkeeper II), but substantial evidence in the administrative record

supports the trial court?s determination that the board did not employ mitigation

measures as ? ?a substitute for selecting the best technology available? ?; (5) the

board could properly conclude that BTA did not require the implementation of

6

In Riverkeeper I, supra, 358 F.3d 174, the same court of appeals had

previously considered challenges to the Phase I regulations.

7

Thus, Riverkeeper II concluded that section 316(b)?s BTA standard does

allow selection of the least costly technology ?whose performance does not
essentially differ from the performance of the best-performing technology whose
cost the industry reasonably can bear.? (Riverkeeper II, supra, 475 F.3d 83, 101.)

15


cooling technologies whose costs were ?wholly disproportionate? to their

environmental benefits; and (6) the administrative record substantially supports

the trial court?s ultimate determination that, in the MLPP?s case, the costs of

alternative technologies to once-through cooling were wholly disproportionate to

the expected environmental results.

Plaintiff sought review, raising three contentions: (1) section 316(b) of the

CWA does not permit a cost-benefit analysis, such as the Regional Water Board?s

?wholly disproportionate? standard, in determining BTA; (2) the board improperly

accepted compensatory restoration measures ? specifically, the $7 million

Elkhorn Slough habitat enhancement program ? as a factor in achieving BTA;

and (3) the trial court improperly ordered an interlocutory remand after finding

insufficient evidence to support the board?s BTA finding. In its answer to the

petition for review, Dynegy urged that if review was granted, we should conclude

the superior court lacked subject matter jurisdiction, because the BTA

determination was subsumed in the Energy Commission?s powerplant

certification, as to which review was solely in this court.

We granted review and deferred briefing pending the United States

Supreme Court?s resolution of the then-pending petitions for certiorari in

Riverkeeper II. The high court subsequently granted certiorari. In April 2009, the

court issued its decision in Entergy Corp., resolving certain of the issues addressed

by the court of appeals in Riverkeeper II. Our discussion below proceeds

accordingly.

16




DISCUSSION8

A. Superior court jurisdiction.

Pursuant to the Porter-Cologne Act, decisions and orders of the Regional

Water Board, including the issuance and renewal of NPDES permits, are

reviewable by administrative appeal to the State Water Board, and then by petition

for administrative mandamus in the superior court. (? 1094.5; Wat. Code,

?? 13320, 13330.) In the mandamus proceeding, the superior court is obliged to

exercise its independent judgment on the evidence before the administrative

agency, i.e., to determine whether the agency?s findings are supported by the

weight of the evidence. (? 1094.5, subd. (c); Wat. Code, ? 13330, subd. (d).)

Plaintiff pursued these avenues of relief. Nonetheless, defendants and

Dynegy, joined by the Energy Commission as amicus curiae, urge at the outset

that the superior court lacked jurisdiction to entertain plaintiff?s petition for

mandate in this case. The trial court and the Court of Appeal rejected this

contention. We do so as well.

The jurisdictional argument is based on the Warren-Alquist Act, which

mandates simplified and expedited processing and review of applications to certify

the siting, construction, and modification of thermal powerplants. The Warren-

Alquist Act accords the Energy Commission ?the exclusive power to certify all

sites and related facilities? for thermal powerplants with generating capacities of


8

The Energy Commission has filed an amicus curiae brief urging, in support

of defendants and Dynegy, that the Regional Water Board?s permit decision was
properly reviewable only in this court. An amicus curiae brief in support of
plaintiff has been jointly filed by the North Coast Unified Air Quality
Management District, the Northern Sonoma County Air Pollution Control District,
the South Coast Air Quality Management District, and the San Diego County Air
Pollution Control District.

17


50 or more megawatts, ?whether a new site and related facility or a change or

addition to an existing facility.? (Pub. Resources Code, ? 25500; see also id.,

?? 25110, 25119, 25120.) When a certification application is filed, the

commission undertakes a lengthy review process that involves multiple staff

assessments, communication with other state and federal regulatory agencies,

environmental impact analysis, and a series of public hearings. (Id., ?? 25519-

25521.) With an exception not relevant here, the commission may not certify a

proposed facility that does not meet all applicable federal, state, regional, and local

laws. (Id., ? 25525.) Accordingly, ?[t]he issuance of a certificate by the

commission shall be in lieu of any permit, certificate, or similar document required

by any state, local or regional agency, or federal agency to the extent permitted by

federal law, for such use of the site and related facilities, and shall supersede any

applicable statute, ordinance, or regulation of any state, local, or regional agency,

or federal agency to the extent permitted by federal law.? (Id., ? 25500.)

The Warren-Alquist Act also constrains judicial review of an Energy

Commission powerplant certification decision. Between 1996 and 2001, the

statute provided that review of such a decision was exclusively by a petition for

writ of review in the Court of Appeal or the Supreme Court. (Pub. Resources

Code, former ? 25531, subd. (a); Pub. Utilities Code, ? 1759, subd. (a).)9 An


9

Adopted as part of the Public Utilities Act in 1951, Public Utilities Code

section 1759, subdivision (a), originally provided for exclusive Supreme Court
review of the Public Utility Commission?s decisions and orders. (Stats. 1951,
ch. 764, ? 1759, p. 2091.) Public Resources Code section 25531, subdivision (a),
adopted as part of the Warren-Alquist Act in 1974, originally provided that review
of powerplant siting decisions by the Energy Commission would be the same as
for Public Utility Commission decisions granting or denying certificates of public
convenience and necessity for powerplants. (Stats. 1974, ch. 276, ? 2, p. 532.) In
1996, Public Utilities Code section 1759, subdivision (a), was amended to allow
review of Public Utilities Commission decisions either by this court or by the

(Footnote continued on next page.)

18


emergency amendment to Public Resources Code section 25531, subdivision (a),

effective in May 2001, establishes that this court alone now has jurisdiction to

review powerplant certification decisions by the commission. (Pub. Resources

Code, ? 25531, subd. (a), as amended by Stats. 2001, 1st Ex. Sess. 2001-2002,

ch. 12, ? 8, pp. 8101-8102.)

Subdivision (c) of Public Resources Code section 25531 further provides

that ?[s]ubject to the right of judicial review of decisions of the [Energy]

[C]ommission,? as set forth in subdivision (a), ?no court in this state has

jurisdiction to hear or determine any case or controversy concerning any matter

which was, or could have been, determined in a proceeding before the

commission, or to stop or delay the construction or operation of any thermal

powerplant except to enforce compliance with the provisions of a decision of the

commission.?

Defendants and Dynegy urge as follows. Under the particular

circumstances of this case, the fundamental issue presented ? whether the

MLPP?s once-through cooling water intake system satisfied BTA for purposes of

section 316(b) of the CWA ? is one which ?was, or could have been? (Pub.

Resources Code, ? 25531, subd. (c)), and indeed, had to be, determined in the

certification proceeding before the Energy Commission. In order to certify the

proposed expansion of the MLPP, the commission was required to find, and did

find, that the project, including the intended modifications to the MLPP?s cooling

intake system, conformed to all applicable local, state, and federal laws, including



(Footnote continued from previous page.)

Court of Appeal. (Stats. 1996, ch. 855, ? 10, p. 4555.) The effect, under
then-unamended Public Resources Code section 25531, subdivision (a), was to
establish similar review for Energy Commission powerplant siting certifications.

19


section 316(b). Hence, the ?case or controversy? advanced by plaintiff

?concern[s] a matter? within the commission?s purview, and was thus subject to

the Warren-Alquist Act?s exclusive-review provisions, with which plaintiff did not

comply.

Plaintiff makes the following response: Entirely aside from the plant

expansion project, the MLPP cannot operate its cooling water intake system

without a federally required, time-limited NPDES permit. Under both federal and

state law, only the State Water Board and the regional water boards have authority

in California to issue or renew such permits. Although the MLPP?s NPDES

permit renewal process coincided with its Energy Commission certification

proceedings, and the two matters were significantly coordinated, it is the Regional

Water Board?s decision to renew the NPDES permit, not the Energy

Commission?s certification of the plant expansion, that is the subject of this ?case

or controversy.? The Porter-Cologne Act thus provides for mandamus review by

the superior court of the Regional Water Board?s permit decision.

Indeed, plaintiff emphasizes, such a conclusion in this case does not thwart

the Warren-Alquist Act?s purpose to expedite the certification of new powerplant

capacity. Plaintiff notes that it never sought to stop, delay, or suspend the

construction and operation of the MLPP expansion project in conformity with the

Energy Commission?s certification, including the approved modifications to the

cooling water intake system, and the project has long since been implemented.

Applying well-established principles of statutory construction, we

conclude, as did the Court of Appeal, that plaintiff has the better argument. When

interpreting statutes, we begin with the plain, commonsense meaning of the

language used by the Legislature. (E.g., Ste. Marie v. Riverside County Regional

Park & Open-Space Dist. (2009) 46 Cal.4th 282, 288.) If the language is

unambiguous, the plain meaning controls. (Ibid.) Potentially conflicting statutes

20


must be read in the context of the entire statutory scheme, so that all provisions

can be harmonized and given effect. (San Leandro Teachers Assn. v. Governing

Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th 822, 831.)

Here, however, there is no actual conflict. Under the plain language of the

two statutory schemes, as applicable to this case, each agency ? the Regional

Water Board and the Energy Commission ? had exclusive jurisdiction in a

discrete area of thermal powerplant operations, and a distinct provision for judicial

review applied in each case. Under the Warren-Alquist Act, the commission had

sole authority to certify, i.e., to grant general permission for, the MLPP?s proposal

to install and operate additional generating capacity, and to modify other plant

systems as necessary to accommodate this expansion. There is no question, under

the unambiguous language of the Warren-Alquist Act, that the commission?s

certification order was subject to judicial review in this court alone. Plaintiff did

not seek judicial review of the commission?s certification decision, and that

determination has long since become final and binding.

However, as defendants and Dynegy concede, regardless of any plans for

new generating capacity that might involve the Energy Commission, a federal law,

the CWA, obliged the MLPP to have in effect at all times a valid NPDES permit

in order to cycle cooling water from Elkhorn Slough and Moss Landing Harbor in

and out of the plant. The Porter-Cologne Act assigns the exclusive authority to

issue, renew, and modify such permits to the State Water Board and the regional

water boards. This statute further plainly specifies that these agencies? decisions

are reviewable by mandamus in the superior court. Plaintiff mounted such a

judicial challenge to the NPDES permit renewal granted to the MLPP by the

Regional Water Board.

Defendants and Dynegy note that the Warren-Alquist Act requires the

Energy Commission, before issuing a powerplant certification, to find conformity

21


with all ?applicable local, regional, state, and federal standards, ordinances, or

laws.? (Pub. Resources Code, ? 25523, subd. (d)(1); see also id., ? 25514,

subd. (a)(2).) Hence, these parties insist, the issue underlying this litigation ?

whether the MLPP?s cooling water intake system, with its proposed modifications,

satisfied BTA for purposes of the CWA ? is a ?matter? which, in this particular

instance, ?was, or could have been, determined? by the Energy Commission (Pub.

Resources Code, ? 25531, subd. (c)) as a necessary component of its decision to

certify the plant expansion. Accordingly, the argument runs, only this court had

?jurisdiction to hear or determine any case or controversy concerning [that]

matter.? (Ibid.)

We are not persuaded. When the judicial review provisions of the Warren-

Alquist Act, as set forth in Public Resources Code section 25531, are read in

context, the meaning of subdivision (c)?s critical phrase ?any case or controversy

concerning any matter which was, or could have been, determined in a proceeding

before the [Energy] [C]ommission? is unmistakably clear.

We must analyze the words of subdivision (c) of Public Resources Code

section 25531 in conjunction with subdivision (a) of the same section.

Subdivision (a) specifies the extent of this court?s exclusive direct review

jurisdiction as mandated by the Warren-Alquist Act. Under subdivision (a), ?[t]he

decisions of the [Energy] [C]ommission on any application for certification of a

site and related facility are subject to review by the Supreme Court of California.?

(Italics added.) Read together with subdivision (a), subdivision (c) simply

confirms that no other court may review directly a certification decision of the

commission, or may otherwise entertain a ?case or controversy? that attacks such

a decision indirectly by raising a ?matter? the commission determined, ?or could

have . . . determined,? for purposes of the certification proceeding. Section 25531

neither states nor implies a legislative intent to interfere with normal mandamus

22


review of the actions of another agency, simply because that agency, exercising

functions within its exclusive authority, has independently decided an issue the

commission also must or might have addressed for its own purposes.

The Energy Commission did find, in connection with the MLPP?s

certification application, that the cooling system modifications proposed in

connection with the expansion project satisfied the CWA?s BTA requirement. But

the commission made this finding only to support its decision, under the Warren-

Alquist Act, to certify the proposed expansion. If plaintiff had challenged this

certification on grounds the commission?s BTA finding was improper, the ?case or

controversy concerning [that] matter? (Pub. Resources Code, ? 25531, subd. (c))

could only have proceeded in accordance with the Warren-Alquist Act.

However, despite the interagency cooperation on the MLPP?s expansion

application, and the agencies? agreement that the plant?s cooling system satisfied

BTA, the fact remains that only the Regional Water Board had authority, under the

Porter-Cologne Act, and by EPA approval for purposes of the CWA, to determine

the BTA issue as necessary for renewal of the plant?s federally required NPDES

permit.

Defendants and Dynegy concede this exclusive administrative authority of

the Regional Water Board. Nonetheless, they imply that the board?s BTA finding

was ratified, adopted, and subsumed in the Energy Commission?s certification

decision. Such is not the case. By law, each agency made an independent BTA

determination, based on its distinct and separate regulatory function. Had the two

agencies disagreed about BTA, the Energy Commission might still have been able

to certify the plant expansion, but it could not have overruled or countermanded a

decision by the Regional Water Board to deny or condition an NPDES permit

renewal on grounds the plant?s cooling system did not satisfy BTA.

23


It follows that, by attacking only the Regional Water Board?s decision to

renew the plant?s federally required NPDES permit, plaintiff has not raised a ?case

or controversy concerning any matter which was, or could have been, determined

in a proceeding before the [Energy] [C]ommission.? (Pub. Resources Code,

? 25531, subd. (c).) Hence, plaintiff?s lawsuit, limited to an examination of the

propriety of the permit renewal, is not affected by the judicial review provisions of

the Warren-Alquist Act.

Defendants and Dynegy point out that under the Warren-Alquist Act, ?[t]he

issuance of a certificate by the [Energy] [C]ommission? for the siting,

construction, or expansion of a thermal powerplant ?shall be in lieu of any permit,

certificate, or similar document required by any state, local or regional agency, or

federal agency to the extent permitted by federal law, for such use of the site and

related facilities, and shall supersede any applicable statute, ordinance, or

regulation of any state, local, or regional agency, or federal agency to the extent

permitted by federal law.? (Pub. Resources Code, ? 25500.) Under this provision,

a commission certification clearly supplants and supersedes all state, county,

district, and city permits and approvals that would otherwise be required for the

siting, construction, and expansion of a thermal powerplant.

But Public Resources Code section 25500 acknowledges, as it must, the

supremacy of federal law. Under the CWA, a federal statute, any facility that

discharges wastewater into a navigable water source, as the MLPP has always

done, must have an unexpired permit, conforming to federal water quality

standards, in order to do so. Pursuant to the regulatory approval of a ?federal

agency,? the EPA, only the State Water Board or a regional water board may issue

a federally compliant discharge permit; such a decision is entirely outside, and

independent of, the Energy Commission?s authority. Under the Porter-Cologne

24


Act, judicial review of the decisions of these agencies, including those to grant or

renew NPDES permits, is by mandamus in the superior court.

Defendants and Dynegy nonetheless insist that the NPDES permit at issue

here is a state, not a federal, permit, as to which federal law requires no particular

avenue of review beyond minimum standards of due process. Hence, these parties

urge, the state agency?s decision is entirely subject, within the limits of due

process, to the state?s own preferences for judicial review. Accordingly, they

assert, California may conclude, and has concluded, that when the issuance of a

wastewater discharge permit is linked to a powerplant certification proceeding, the

Warren-Alquist Act?s ?one-stop shopping? requirement of exclusive review by

this court prevails over the review provisions that would otherwise apply, under

the Porter-Cologne Act, to decisions of the State Water Board and the regional

water boards.

The contention lacks merit. It is true, as these parties observe, that the

CWA does not directly delegate to a state agency the authority to administer the

federal clean water program; instead, it allows the EPA director to ?suspend?

operation of the federal permit program in individual states in favor of EPA-

approved permit systems that operate under those states? own laws in lieu of the

federal framework. (33 U.S.C. ? 1342(b); see Shell Oil Company v. Train

(9th Cir. 1978) 585 F.2d 408, 410.) But the distinction is of little moment for our

purposes. The state-administered program must conform to federal standards, and

it must be approved by a federal agency, the EPA. In California, the EPA has

approved a program under which the federally required permits are issued and

renewed, not by the Energy Commission, but solely by the State Water Board and

the regional water boards. (54 Fed.Reg. 40664-40665 (Oct. 31, 1989);

39 Fed.Reg. 26061 (Jul. 16, 1974); Wat. Code, ? 13377.)

25


Defendants and Dynegy suggest that, even if this is so, federal law does not

prohibit resort to the Warren-Alquist Act?s restrictive provisions for judicial

review in cases where, as here, a proceeding for issuance or renewal of an NPDES

permit coincides with a powerplant certification proceeding before the Energy

Commission. Perhaps not. But under the Warren-Alquist Act itself, only ?[t]he

decisions of the [Energy] [C]ommission on any application for certification of a

site and related facility? are subject to exclusive review in this court (Pub.

Resources Code, ? 25531, subd. (a), italics added), and other courts are deprived

of jurisdiction only of a ?case or controversy concerning [a] matter which was, or

could have been, determined in a proceeding before the commission? (id.,

subd. (c), italics added).

As we have seen, an NPDES permit decision by a regional water board is

not an Energy Commission certification decision. Conversely, under California?s

EPA-approved NPDES permit program, neither commission certification

proceedings, nor findings the commission may make in connection with such

proceedings, can result in the issuance or renewal of an NPDES permit; only the

State Water Board and the regional water boards may issue or renew such permits.

Hence, a challenge to the issuance or renewal of an NPDES permit is not a ?case

or controversy concerning [a] matter which was, or could have been, determined?

by the commission. (Pub. Resources Code, ? 25531, subd. (c).)

Nothing in the Warren-Alquist Act states or implies that where a

powerplant has concurrently sought both a renewal from the Regional Water

Board of its NPDES wastewater discharge permit, and an Energy Commission

certification to install additional generating capacity, the regional water board?s

decision, normally reviewable in the superior court pursuant to the Porter-Cologne

26


Act, is suddenly subject to the exclusive-review provisions of the Warren-Alquist

Act. We see no basis for reading such a requirement into the latter statue.10

10

Dynegy alludes to the portion of Public Resources Code section 25531,

subdivision (c) which states that ?[s]ubject to the right of judicial review [in this
court] of decisions of the [Energy] [C]ommission, no court . . . has jurisdiction . . .
to stop or delay the construction or operation of any thermal powerplant except to
enforce compliance with . . . a decision of the commission.? (Italics added.)
Dynegy implies that because the superior court was thus deprived of authority to
enforce any NPDES permit ruling it might make by ?stop[ping] or delay[ing]? the
wastewater discharge ?operation[s]? of the MLPP, it must therefore have been
deprived of all jurisdiction to entertain a challenge to the ruling. Like the Court of
Appeal, we conclude we need not, and we do not, directly address whether the
superior court had ?stop or delay? authority, because no such stoppage or delay
was sought or ordered in this case. But we do have serious doubts about Dynegy?s
premise. We have explained that under federal and California water quality laws,
all industrial facilities, including thermal powerplants, that discharge waste water
into navigable water sources may only do so under the terms of valid NPDES
permits. The State Water Board and the regional water boards have exclusive
authority and responsibility to issue, renew, and administer such permits, and a
powerplant certification by the Energy Commission cannot operate ?in lieu? (Pub.
Resources Code, ? 25500) of a properly issued, federally required NPDES permit.
Review of a decision of the State Water Board or a regional water board is by
mandamus in the superior court, which court, upon proper evidence and findings,
may command the agency to ?set aside [its] order or decision,? and direct the
agency ?to take such further action as is specially enjoined upon it by law.? (Code
Civ. Proc., ? 1094.5, subd. (f).) Of course, the agency?s compliance with such an
order withdraws the federal and state legal authority for the plant?s wastewater
discharge ?operation[s].? Moreover, if the State Water Board or a regional water
board perceives a ?threatened or continuing? violation of the permit provisions, it
may require the Attorney General to seek direct injunctive relief against the
violator. (Wat. Code, ? 13386.)




Construed literally, the no ?stop or delay? provision of Public Resources

Code section 25531, subdivision (c), would entirely swallow these provisions as
applied to thermal powerplants; it would never allow a superior court to prevent
the illegal wastewater activities of such a plant ?except to enforce compliance with
. . . a decision of the [Energy] [C]ommission?? an agency which, even in
connection with a powerplant certification
, has no direct authority over
wastewater discharge violations, or the issuance, renewal, or administration of
NPDES permits.

(Footnote continued on next page.)

27


Defendants and Dynegy stress that the purposes of the Warren-Alquist Act,

including its ?one stop? permit process and its provision for exclusive judicial

review, are to consolidate the state?s regulation of electrical generation and

transmission facilities, and to expedite the operative effect of powerplant

certifications by the Energy Commission. (See, e.g., Pub. Resources Code,

? 25006; County of Sonoma v. State Energy Resources Conservation etc. Com.

(1985) 40 Cal.3d 361, 368; Public Utilities Com. v. Energy Resources

Conservation & Dev. Com. (1984) 150 Cal.App.3d 437, 453.) Superior court

jurisdiction in this case, they urge, defeats these statutory aims.

However, as we have explained, a federal law, the CWA, requires all

industrial facilities, including thermal powerplants, that discharge wastewater into

navigable water sources to have in effect unexpired NPDES permits authorizing

such discharge. This requirement is independent of the Energy Commission?s

certification, under California law, of an application to locate, construct, or expand

such a powerplant. As defendants and Dynegy concede, a state statute, the Porter-

Cologne Act ? specifically approved by the federal agency responsible for

authorizing state administration of the CWA?s requirements ? assigns the

issuance and renewal of NPDES permits exclusively to the State Water Board and



(Footnote continued from previous page.)




Fairly read in context, and properly harmonized with the requirements of

federal and state water quality laws, the cited portion of Public Resources Code
section 25531, subdivision (c), like the rest of the section, operates only with
respect to ?decisions? properly within the purview of the Energy Commission, i.e.,
powerplant certifications. The subdivision precludes any court except this court
from ?stop[ping] or delay[ing]? the ?operation? of a thermal powerplant insofar as
such ?operation? is authorized by the Energy Commission?s decision, under the
Warren-Alquist Act, to certify the plant?s siting, construction, or expansion.

28


the regional water boards. Although the Energy Commission must make a general

finding, before issuing a powerplant certification, that the project conforms to all

applicable local, regional, state, and federal laws, such a certification cannot

contravene, subsume, encompass, supersede, substitute for, or operate in lieu of,

the federally required NPDES permit.

The Porter-Cologne Act provides that review of NPDES permit decisions

by the State Water Board or the regional water boards is in the superior court. No

provision of either the Porter-Cologne Act or the Warren-Alquist Act states or

suggests that these review provisions are altered simply because an NPDES permit

issuance or renewal proceeding took place concurrently, or in connection, with a

certification proceeding for the same powerplant. Hence, we have no basis to

conclude that the purposes of the Warren-Alquist Act are impaired by recognizing

superior court jurisdiction under the circumstances of this case.

For these reasons, we conclude that the superior court had subject matter

jurisdiction of the instant mandamus proceeding.

B. Interlocutory remand.

Plaintiff urges that under section 1094.5, once the trial court found

insufficient evidence to support the Regional Water Board?s finding No. 48 (the

BTA finding), the court had no choice but to render a final mandamus judgment

directing the board to set aside its Order No. 00-041, renewing the MLPP?s

wastewater discharge permit. The court thus erred, plaintiff insists, when it

instead (1) retained jurisdiction pending an interlocutory remand to the board for

reconsideration of finding No. 48; (2) allowed the board to take new evidence and

reaffirm its finding; then (3) denied mandamus relief after concluding that the

administrative record, as augmented on remand, supported the board?s

determination. We conclude that no error occurred.

29


Plaintiff bases its argument on two portions of section 1094.5 ?

subdivisions (e) and (f). Subdivision (e) provides that ?[w]here the court finds that

there is relevant evidence that, in the exercise of reasonable diligence, could not

have been produced or that was improperly excluded at the hearing before [the

agency], it may enter judgment as provided in subdivision (f) remanding the case

to be reconsidered in the light of that evidence; or, in cases in which the court is

authorized by law to exercise its independent judgment on the evidence, the court

may admit the evidence at the hearing on the writ without remanding the case.?

Subdivision (f) states that ?[t]he court shall enter judgment either commanding

respondent [the agency] to set aside the order or decision, or denying the writ.

Where the judgment commands that the order or decision be set aside, it may

order the reconsideration of the case in the light of the court?s opinion and

judgment . . . .?

Read together, plaintiff asserts, these provisions establish that the court

(1) may order the administrative agency to reconsider its decision only as part of a

final judgment granting a writ of mandate; (2) in such event, must specify that the

entire ?case? be reconsidered; and (3) may allow the agency, upon

reconsideration, to accept and consider new evidence only when such evidence (a)

could not earlier have been produced before the agency with due diligence or (b)

was improperly excluded at the initial administrative hearing.

As plaintiff observes, defendants and Dynegy do not claim that the

evidence the court found wanting was unavailable at the time of the Regional

Water Board?s proceedings, or that the agency improperly rejected an attempt to

present such evidence. Hence, plaintiff urges, upon concluding that the board?s

BTA finding was not supported by the weight of the evidence then contained in

the administrative record, the trial court was required to enter a final judgment

30


granting the requested writ of mandamus and overturning the agency?s permit

renewal order in its entirety.

We conclude, however, that, properly understood and interpreted,

subdivisions (e) and (f) of section 1094.5 impose no absolute bar on the use of

prejudgment limited remand procedures such as the one employed here.

Moreover, when a court has properly remanded for agency reconsideration on

grounds that all, or part, of the original administrative decision has insufficient

support in the record developed before the agency, the statute does not preclude

the agency from accepting and considering additional evidence to fill the gap the

court has identified.

To determine the meaning of these provisions, we must first examine their

words, which have remained unchanged since section 1094.5 was adopted over six

decades ago. (Stats. 1945, ch. 868, ? 1, pp. 1636-1637.). The statutory language

simply does not support the arbitrary and restrictive construction plaintiff

advocates. On its face, subdivision (f) of section 1094.5 indicates the form of final

judgment the court may issue in an administrative mandamus action.

Unremarkably, subdivision (f) states that the last step the trial court shall take in

the proceeding is either to command the agency to set aside its decision, or to deny

the writ. The trial court here followed that mandate; it issued a final judgment

denying a writ of mandamus.

As defendants and Dynegy observe, nothing in subdivision (f) of section

1094.5 purports to limit procedures the court may appropriately employ before it

renders a final judgment. A more general statute covers that subject. Code of

Civil Procedure section 187, adopted in 1872, broadly provides that whenever the

Constitution or a statute confers jurisdiction on a court, ?all the means necessary to

carry it [that jurisdiction] into effect are also given; and in the exercise of this

jurisdiction, if the course of proceeding be not specifically pointed out by this code

31


or the statute, any suitable process or mode of proceeding may be adopted which

may appear most conformable to the spirit of this code.? (Italics added.)

Subdivision (f) of section 1094.5 does not ?specifically point[ ] out? the

prejudgment procedures to be followed in an administrative mandamus action, nor

do its terms prohibit the court from ?adopt[ing]? a ?suitable process or mode of

proceeding? when addressing the issues presented. (Code Civ. Proc., ? 187.)

Hence, we find nothing in subdivision (f)?s language that suggests an intent to

limit or repeal Code of Civil Procedure section 187 for purposes of administrative

mandamus actions. (See, e.g., Ste. Marie v. Riverside County Regional Park &

Open-Space Dist., supra, 46 Cal.4th 282, 296 [implied repeals disfavored].)

Extrinsic aids to interpretation do not persuade us otherwise. The limited

available legislative history of section 1094.5 does not suggest the Legislature?s

intent to limit the application of Code of Civil Procedure section 187, as it might

appropriately apply in administrative mandamus actions, or to categorically

confine the mandamus court only to postjudgment remands. (See, e.g., Cal. Dept.

of Justice, Inter-Departmental Communication to Governor re Sen. Bill No. 736

(1945 Reg. Sess.) June 7, 1945, pp. 1-3; Cal. Legis. Counsel, Rep. on Sen. Bill No.

736 (1945 Reg. Sess.) June 9, 1945, pp. 1-2.)

Decisions have long expressed the assumption that the court in a mandamus

action has inherent power, in proper circumstances, to remand to the agency for

further proceedings prior to the entry of a final judgment. (See, e.g., No Oil,

Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 81 (No Oil) [professing no

?question? of trial court?s power in traditional mandamus to order interlocutory

remand to agency for clarification of findings]; Keeler v. Superior Court (1956)

46 Cal.2d 596, 600 [noting there is ?no question? of a court?s power under Code

Civ. Proc., ? 187 to remand, prior to a final mandamus judgment, for further

necessary and appropriate agency proceedings; ?aside from? court?s power under

32


? 1094.5 to enter judgment remanding for consideration of evidence not available,

or improperly excluded, in original agency proceeding, ?such a power to remand?

prior to judgment ?also exists under the inherent powers of the court?]; Garcia v.

California Emp. Stab. Com. (1945) 71 Cal.App.2d 107, 114 [in original

mandamus action, Court of Appeal, without issuing final judgment, remanded for

further agency proceedings after finding that evidence in administrative record

was insufficient to support denial of unemployment benefits].) In Rapid Transit

Advocates, Inc. v. Southern Cal. Rapid Transit Dist. (1986) 185 Cal.App.3d 996

(Rapid Transit Advocates), an administrative mandamus action governed by

section 1094.5, the Court of Appeal, citing No Oil and Keeler, expressly upheld

the trial court?s order continuing the trial and remanding for clarification of the

agency?s findings. (Rapid Transit Advocates, supra, at pp. 1002-1003.)

We perceive no compelling reason why the Legislature would have wished

to categorically bar interlocutory remands in administrative mandamus actions.

Though its arguments have varied somewhat, we understand plaintiff to raise two

basic objections to such a procedure.

First, plaintiff insists, the purpose of an administrative mandamus suit is to

determine, once and for all, whether an agency has acted ?without, or in excess of

jurisdiction,? in that the agency ?has not proceeded in the manner required by law,

the order or decision is not supported by the findings, or the findings are not

supported by the evidence.? (? 1094.5, subd. (b).) If the agency?s action, as

originally presented for review, is found defective by these standards, plaintiff

urges, that action must simply be set aside, and the administrative process ?

assuming further proceedings are appropriate at all ? must begin anew. Plaintiff

contends the instant trial court violated these principles by withholding final

judgment on the validity of the Regional Water Board?s NPDES permit

33


determination while allowing the agency to reconsider, and justify, a single

finding the court had deemed insufficiently supported.

Second, plaintiff seems to suggest, a limited prejudgment remand raises the

danger of a sham proceeding, in which interested parties are denied the

opportunity to argue or present evidence, and the agency simply concocts a post

hoc rationalization for the decision it has already made. Such concerns appear

paramount in two Court of Appeal decisions that expressly disagreed with Rapid

Transit Advocates, supra, 185 Cal.App.3d 996, and broadly asserted that section

1094.5 bars interlocutory, as opposed to postjudgment, remands in administrative

mandamus proceedings. (Sierra Club v. Contra Costa County (1992)

10 Cal.App.4th 1212, 1220-1222; Resource Defense Fund v. Local Agency

Formation Com. (1987) 191 Cal.App.3d 886, 898-900 (Resource Defense Fund).)

But considerations of fairness and proper agency decisionmaking do not

justify the absolute prohibition for which plaintiff argues. Significantly,

subdivision (f) of section 1094.5 provides that, when granting mandamus relief,

the court may ?order the reconsideration of the case in the light of the court?s

opinion and judgment.? (Italics added.) This clearly implies that, in the final

judgment itself, the court may direct the agency?s attention to specific portions of

its decision that need attention, and need not necessarily require the agency to

reconsider, de novo, the entirety of its prior action. That being so, no reason

appears why, in appropriate circumstances, the same objective cannot be

accomplished by a remand prior to judgment. Indeed, such a device, properly

employed, promotes efficiency and expedition by allowing the court to retain

jurisdiction in the already pending mandamus proceeding, thereby eliminating the

potential need for a new mandamus action to review the agency?s decision on

reconsideration.

34


We agree with plaintiff, and with the courts in Sierra Club v. Contra Costa

County and Resource Defense Fund, that any agency reconsideration must fully

comport with due process, and may not simply allow the agency to rubber-stamp

its prior unsupported decision. Indeed, the judgments in Sierra Club v. Contra

Costa County and Resource Defense Fund could have been based solely on the

conclusions of the Courts of Appeal in those cases that the particular agency

decisions on remand suffered from such flaws.11

However, a limited interlocutory remand raises no greater inherent danger

in these regards than does a final judgment ordering limited reconsideration, as


11

Thus, in Resource Defense Fund, a case involving the California

Environmental Quality Act (CEQA), the trial court ordered an interlocutory
remand to allow a city council to supply missing findings in support of an
annexation approval. The order simply provided that the court would enter
judgment after the council?s action, or the expiration of 60 days. The Court of
Appeal noted that this sparse and abbreviated procedure raised ?serious questions
of due process: it effectively precluded any possible challenge to the sufficiency
of the evidence to support the new findings? and ?fostered a post hoc
rationalization . . . .? (Resource Defense Fund, supra, 191 Cal.App.3d 886, 900.)
In Sierra Club v. Contra Costa County, the trial court determined that an
environmental impact report (EIR), required by CEQA, was inadequate because it
failed to fully analyze, and the county board of supervisors had thus failed to fully
consider, less environmentally damaging alternatives to a massive residential
development approved by the board. The court nonetheless denied the mandamus
relief requested by opponents of the development, ? ?with the exception that the
County should administratively make further findings on alternatives.? ? (Sierra
Club v. Contra Costa County
, supra, 10 Cal.App.4th 1212, 1216.) The board then
adopted supplemental findings. Promptly thereafter, the court found the EIR, as
so augmented, to be ? ?legally adequate in all respects,? ? whereupon the court
discharged the alternative writ and entered judgment for the county. (Id., at
pp. 1216-1217.) Besides finding that this procedure did not satisfy the specific
requirements of CEQA, the Court of Appeal stressed that, as was the case in
Resource Defense Fund, the trial court?s procedure raised serious questions of due
process by insulating the board?s supplemental findings ?from any meaningful
challenge.? (Sierra Club v. Contra Costa County, supra, at p. 1221.)

35


expressly authorized by subdivision (f) of section 1094.5. No fundamental

concerns about fair, sound, and complete agency decisionmaking impose the need

for a categorical bar on such prejudgment remands.

Accordingly, we are persuaded that subdivision (f) of section 1094.5

imposes no blanket prohibition on the appropriate use, in an administrative

mandamus action, of a prejudgment remand for agency reconsideration of one or

more issues pertinent to the agency?s decision. We reject plaintiff?s contrary

argument. To the extent the Courts of Appeal in Resource Defense Fund and

Sierra Club v. Contra Costa County concluded otherwise, we will disapprove

those decisions.

We are further convinced that the interlocutory remand in this case was not

employed, or conducted, improperly. Under the circumstances presented, the trial

court?s choice to utilize this device was eminently practical. Plaintiff?s mandamus

petition challenged only a single, discrete facet of the lengthy and complex

NPDES permit order ? the order?s treatment of the BTA issue. The trial court

ultimately concluded that a single finding on this issue ? finding No. 48 ?

lacked evidentiary and analytic support. Confronted with this situation, the trial

court reasonably concluded it need not, and should not, enter a final judgment

vacating the entire permit pending further consideration of that issue.

Such a judgment, even if it included an order narrowing the issues, would

have required a new permit proceeding and, most likely, a new mandamus action

to review the resulting decision. In the interim, the MLPP?s authority to use the

cooling system essential to its electrical generation operations would be cast in

doubt. Instead, the court reasonably decided it could achieve the necessary further

examination of the BTA issue by postponing a final judgment pending the

Regional Water Board?s focused reconsideration of that matter. The court thus

36


properly exercised its inherent authority to adopt a ?suitable process or mode of

proceeding? in aid of its jurisdiction. (Code Civ. Proc., ? 187.)

Moreover, unlike the procedures at issue in Resource Defense Fund and

Sierra Club v. Contra Costa County, the instant remand was not unfair, and it

produced no mere post hoc rationalization by the agency. On the contrary, in

compliance with the trial court?s directive, the Regional Water Board engaged in a

full reconsideration of the BTA issue, and gave all interested parties, including

plaintiff, a noticed opportunity to appear and to present evidence, briefing, and

argument pertinent to the BTA determination.

Nor was the Regional Water Board?s finding on remand insulated from

meaningful review. Plaintiff was able to pursue, and did pursue, its statutory right

to seek an administrative appeal of the board?s BTA finding on remand, and then

was allowed, in the resumed judicial proceedings, a full opportunity to dispute the

foundation for that finding.

For all these reasons, we find no error in the trial court?s use of an

interlocutory remand to resolve perceived deficiencies in the Regional Water

Board?s BTA finding.

We similarly reject plaintiff?s argument that subdivision (e) of section

1094.5 precluded the Regional Water Board from accepting and considering new

evidence on remand absent a showing that such evidence could not have been

produced at the original administrative proceeding, or was improperly excluded

therefrom. We do not read subdivision (e) to impose such a limitation under the

circumstances presented here.

As explained above, subdivision (e) of section 1094.5 provides that

?[w]here the court finds that there is relevant evidence? (italics added) which

could not with reasonable diligence have been produced, or was improperly

excluded, in the administrative proceeding, the court may remand the case ?to be

37


reconsidered in light of that evidence.? (Italics added.) To the extent this

language is ambiguous, plaintiff extracts the most radical interpretation ? that

when a court, for whatever reason, directs or authorizes the agency to reconsider

its prior decision, in whole or in part, the agency is always confined to the

evidence it previously received, with the exception of evidence the court

determines was unavailable, or wrongly excluded, in the original administrative

proceeding.

But the precise circumstances of this case illustrate why plaintiff?s

construction makes little sense. The instant trial court found that the Regional

Water Board?s finding No. 48 was not sufficiently supported by the original

administrative record. The only possible cure for such a deficiency is the agency?s

reconsideration of its decision on the basis of additional evidence. Plaintiff?s

construction of subdivision (e) of section 1094.5 would categorically preclude the

court, except in narrow circumstances, from authorizing the agency to reach a

better considered and better supported result on a sufficient record. Unless those

narrow exceptions applied, any reconsideration at all would thus simply be futile;

the very flaw the court had found could not be remedied.

Yet section 1094.5 contains no other indication that the Legislature

intended such a constraint on the scope of an agency reconsideration directed or

authorized by the court. Indeed, subdivision (f) broadly provides that when the

court directs the agency decision to be set aside, it ?may order the reconsideration

of the case in the light of the court?s opinion and judgment . . . but the judgment

shall not limit or control in any way the discretion legally vested in the [agency].?

The implication is plain that if, as here, the court finds the administrative record

insufficient to support the original agency determination, it may order

reconsideration in the light of that judicial finding ? i.e., a reconsideration in

38


which the agency may entertain all the additional evidence necessary to support its

new decision.

Moreover, had the instant trial court simply vacated the Regional Water

Board?s issuance of the NPDES permit in this case, the MLPP?s owner could,

should, and would simply have commenced a new permit proceeding before the

board. Plaintiff does not suggest that, in such a new proceeding, the board would

be limited to the evidence it had considered before, plus only previously

unavailable or improperly excluded evidence. On the contrary, the board would

have been empowered to receive and consider, de novo, all evidence pertinent to

its decision whether to issue the requested permit. Accordingly, there is no reason

to conclude the board lacks such authority when directed or ordered by the court to

reconsider an insufficiently supported decision.

Albeit with little analysis, a number of decisions have expressed the

unremarkable principle that, when an agency determination is set aside for

insufficiency of the evidence in the administrative record, the proper course is to

remand to the agency for further appropriate proceedings ? presumably the

agency?s consideration of additional evidence as the basis for its decision on

reconsideration. (See, e.g., Fascination, Inc. v. Hoover (1952) 39 Cal.2d 260, 268;

La Prade v. Department of Water & Power (1945) 27 Cal.2d 47, 53; Carlton v.

Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1434.)

Accordingly, we are persuaded that section 1094.5, subdivision (e) is not

intended to prevent the court, upon finding that the administrative record itself

lacks evidence sufficient to support the agency?s decision, from remanding for

consideration of additional evidence. A more reasonable interpretation, which

fully honors the statutory language, is that subdivision (e) simply prevents a

mandamus petitioner from challenging an agency decision that is supported by the

39


administrative record on the basis of evidence, presented to the court, which could

have been, but was not, presented to the administrative body.

This interpretation adheres most closely to the literal words of section

1094.5, subdivision (e). As noted, the subdivision provides that when the court

determines there ?is relevant evidence? meeting the statutory criteria, it may

remand to the agency for consideration of ?that evidence,? or, in cases where the

court is authorized to weigh the evidence independently, the court may ?admit the

evidence? (italics added) in the judicial proceeding itself. Read most naturally,

this language contemplates a situation in which a party to the mandamus action

has actually proffered to the court specific evidence not included in the

administrative record. Subdivision (e) provides that the court may remand for

agency consideration of such evidence, or may consider the evidence itself, only if

that evidence could not reasonably have been presented, or was improperly

excluded, at the administrative proceeding.

Thus, subdivision (e) of section 1094.5 merely confirms that while, in most

cases, the court is limited to the face of the administrative record in deciding

whether the agency?s decision is valid as it stands, in fairness, the court may

consider, or may permit the agency to consider, extra-record evidence for a

contrary outcome, if persuaded that such evidence was not available, or was

improperly excluded, at the original agency proceeding. (See No Oil, supra,

13 Cal.3d 68, 79, fn. 6 [in administrative mandamus action, ?the court reviews the

administrative record, receiving additional evidence only if that evidence was

unavailable at the time of the administrative hearing, or improperly excluded from

the record?].)

The limited available legislative history of Senate Bill No. 736 (1945 Reg.

Sess.), in which section 1094.5 was adopted, is consistent with this view. The

Department of Justice advised the Governor that the bill was designed to settle

40


areas of confusion which had arisen about judicial review of administrative

decisions, and would, as ?a most important consideration, . . . permit the court to

remand administrative proceedings for further consideration by the administrative

agency in cases where relevant evidence was not available or was wrongfully

excluded from the administrative hearings so that the administrative agency,

rather than the court, may finally determine the whole proceeding and the court

may in turn actually review the administrative action. The latter consideration

accords both to the administrative agency and the reviewing court their primary

functions and the opportunity of carrying out the legislative intent in authorizing

the administrative agency to conduct and determine its own proceedings.? (Cal.

Dept. of Justice, Inter-Departmental Communication to Governor re Sen. Bill No.

736 (1945 Reg. Sess.) June 7, 1945, p. 1, italics added.)

This explanation indicates an intent to provide that where the reviewing

court learns of evidence the agency should have considered, but did not or could

not do so for reasons beyond the control of the participants in the administrative

proceeding, the court may give the agency, the appropriate primary

decisionmaker, the opportunity to include this evidence in its determination,

subject to the court?s limited review of the resulting administrative record for

abuse of discretion. Nothing suggests, on the other hand, that the court is

powerless to allow reconsideration by the agency, with such additional evidence as

the agency may find appropriate, when the court finds, in the first instance, that

there is not enough evidence in the original administrative record to support the

agency?s decision.

The decisional law also generally supports our conclusion. Courts have

most frequently applied subdivision (e) of section 1094.5 simply to determine

41


whether and when an agency decision may be challenged on mandamus with

evidence outside the administrative record.12 On the other hand, our research has

12

E.g., Sierra Club v. California Coastal Com. (2005) 35 Cal.4th 839,

863 (in administrative mandamus action challenging coastal zone permit, evidence
proffered by mandamus petitioner, which was not part of administrative record,
that coastal commission members did not personally review final EIR before
granting permit, could not be considered); State of California v. Superior Court
(1974) 12 Cal.3d 237, 257 (in administrative mandamus action challenging coastal
zone permit, mandamus petitioner was not entitled to propound interrogatories to
determine whether coastal commission denied fair hearing by receiving, and
relying upon, secret prehearing testimony by commission staff); Eureka Citizens
for Responsible Government v. City of Eureka
(2007) 147 Cal.App.4th 357, 366-
367 (in administrative mandamus action by neighborhood organization
challenging city?s allowance of nonconforming school playground, court could not
consider mandamus petitioner?s proffer of correspondence to and from city
officials, not included in administrative record, as evidence of school?s ? ?ongoing
land use violations? ?); Pomona Valley Hospital Medical Center v. Superior Court
(1997) 55 Cal.App.4th 93, 101-109 (under ? 1094.5, subd. (e), discovery to obtain
evidence that administrative hearing was not fair is permissible only if evidence
sought is relevant and could not, with reasonable diligence, have been presented in
administrative proceeding); Fort Mojave Indian Tribe v. Department of Health
Services
(1995) 38 Cal.App.4th 1574, 1591-1598 (expression of expert opinion
that postdates administrative proceeding is not truly ?new? evidence of ?emergent
facts? which would justify remand, at mandamus petitioner?s behest, under
? 1094.5, subd. (e)); Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 355-357 (in
administrative mandamus action challenging suspension of driver?s license on
ground of licensee?s seizure disorder, mandamus petitioner could obtain remand to
Department of Motor Vehicles (DMV) under ? 1094.5, subd. (e) for consideration
of physician?s declaration, which postdated DMV hearing, that disorder was being
well controlled by medication); Armondo v. Department of Motor Vehicles (1993)
15 Cal.App.4th 1174, 1180 (in mandamus action challenging administrative
suspension of driver?s license based on breathalyzer results, court properly
excluded, absent showing that ? 1094.5, subd. (e) exception applied, petitioner?s
proffered evidence that local crime laboratory was not licensed to use particular
breathalyzer model); Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987)
188 Cal.App.3d 872, 881-882 (car dealer seeking mandamus review of
administrative discipline could introduce evidence outside administrative record
on issue of appropriate penalty only if such evidence could not, with reasonable
diligence, have been presented in administrative proceeding); Windigo Mills v.

(Footnote continued on next page.)

42


disclosed only two decisions holding or suggesting that section 1094.5 precludes a

remand for new evidence when, as happened here, the trial court finds that the

existing administrative record simply fails to support the agency?s original

determination.

Thus, in Ashford v. Culver City Unified School Dist. (2005)

130 Cal.App.4th 344 (Ashford), the Court of Appeal held that except under the

circumstances specifically set forth subdivision (e) of section 1094.5, there was no

ground for a remand to give a public employer a second chance to provide

additional evidence in support of the original, inadequately founded,

administrative decision to terminate an employee. (Ashford, supra, at pp. 350-

354.) Similarly, in Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41

(Newman), the Court of Appeal concluded that the trial court erred when, after

finding insufficient evidence in the administrative record to support the medical

termination of a California Highway Patrol (CHP) employee, the court remanded

for further proceedings. In the Court of Appeal?s view, subdivision (f) of section

1094.5 prevented a remand for agency reconsideration when the agency had failed

to reach a result substantially supported by the evidence. The Court of Appeal



(Footnote continued from previous page.)

Unemployment Ins. Appeals Bd.
(1979) 92 Cal.App.3d 586, 596-597
(administrative mandamus petitioner may introduce evidence beyond
administrative record if such evidence relates to events that postdate agency
proceeding); see also Western States Petroleum Assn. v. Superior Court (1995)
9 Cal.4th 559 (evidence outside administrative record was not admissible in
traditional mandamus action to determine, under Pub. Res. Code, ? 21168.5, a
provision of CEQA, whether the agency?s decision constituted a ? ?prejudicial
abuse of discretion,? ? either because the agency ? ?[did] not proceed[ ] in a
manner required by law,? ? or because its decision was not supported by
? ?substantial evidence? ?).


43


stated that the CHP had failed in its burden to prove grounds for the employee?s

dismissal, and was ?not now entitled to a second opportunity to establish its case.?

(Newman, supra, at p. 49.)

Ashford and Newman illustrate circumstances in which due process

principles entirely separate from section 1094.5 may preclude successive

administrative proceedings. It may well be, as Ashford and Newman suggested,

that there should be no second chance to muster sufficient evidence to impose

administrative sanctions on a fundamental or vested right, such as the right against

dismissal from tenured public employment except upon good cause.

But we find no such categorical bar in section 1094.5 itself. The quasi-

judicial administrative proceedings governed by this statute include a wide variety

of matters, including applications for permits and licenses, that have nothing to do

with disciplinary or punitive sanctions. Here, as plaintiff concedes, even if the

instant trial court had vacated the MLPP?s NPDES permit renewal for lack of

evidence, the plant could, should, and would have begun anew the process for

obtaining this permit, essential to the continuation of its electrical generation

operations. In this new proceeding, the Regional Water Board could, should, and

would have considered all evidence relevant to its permit decision, regardless of

whether that evidence had been presented in the prior proceeding. No reason

appears to construe section 1094.5 to preclude such new evidence when the court,

having found insufficient record support for the agency?s decision, remands for

reconsideration of that matter.

In sum, section 1094.5, subdivision (e), promotes orderly procedure, and

the proper distinction between agency and judicial roles, by ensuring that, with

rare exceptions, the court will review a quasi-judicial administrative decision on

the record actually before the agency, not on the basis of evidence withheld from

the agency and first presented to the reviewing court. But once the court has

44


reviewed the administrative record, and has found it wanting, section 1094.5 does

not preclude the court from remanding for the agency?s reconsideration in

appropriate proceedings that allow the agency to fill the evidentiary gap. To the

extent the analyses in Ashford and Newman are inconsistent with these

conclusions, we will disapprove those decisions.

Here, the trial court found that the administrative record did not support one

finding by the agency in support of its issuance of a permit essential to the

permittee?s operations. Hence, the court acted properly by remanding to the

agency for additional evidence and analysis on this issue. No error occurred.

C. ?Best technology available? under CWA section 316(b).

As indicated, finding No. 48 of the Regional Water Board?s order issuing

the MLPP?s 2000 NPDES permit renewal addressed the requirement, under CWA

section 316(b), that ?the location, design, construction, and capacity of cooling

water intake structures reflect the best technology available for minimizing

adverse environmental impact.? (33 U.S.C. ? 1326(b).) In this regard, the board

determined that ?[i]f the cost of implementing any alternative for achieving BTA

is wholly disproportionate to the environmental benefits to be achieved, the Board

may consider alternative methods to mitigate these adverse environmental

impacts.? The board further found that, though the MLPP?s existing once-through

cooling system would be modified and upgraded in certain respects to minimize

adverse impacts on aquatic life, proposed alternatives to this basic system were

?wholly disproportionate to the environmental benefits.? After complying, on

remand, with the superior court?s directive to analyze the available technologies

more closely, the board confirmed finding No. 48, and the superior court denied

mandamus.

As we have noted, shortly before the superior court issued its final

judgment, the EPA promulgated the Phase II regulations applying CWA section

45


316(b)?s BTA standard to existing electric powerplants. (69 Fed.Reg., supra,

p. 41576; 40 C.F.R. ? 125.90 et seq. (2011)). The Phase II regulations did not

follow the approach of the Phase I regulations, which had required new

powerplants either to adopt closed-cycle cooling systems or to achieve comparable

environmental performance ? i.e., up to 98 percent reductions in impingement

and entrainment mortality relative to typical once-through systems. (69 Fed.Reg.,

supra, pp. 41576, 41601, 41605.) The EPA declined to impose such a stringent

requirement on existing powerplants because it concluded that conversion to

closed-cycle systems was impossible or economically impracticable for many

existing facilities, that such conversions could have adverse impacts on the

environment and on the plants? production and consumption of energy, and that

other, less costly technologies could approach the environmental benefits of

closed-cycle systems. (Id., at p. 41605.)

Instead, therefore, the Phase II regulations set national performance

standards requiring an existing facility to reduce impingement and entrainment

mortality rates by from 60 to 95 percent compared to the rates estimated to arise

from a typical once-through system at the site. (40 C.F.R. ?? 125.93,

125.94(b)(1), (2) (2011).) The regulations provided alternative means of

achieving compliance, based on a range of available technologies the EPA had

determined were ?commercially available and economically practicable.?

(40 C.F.R. ? 125.94(a) (2011); 69 Fed.Reg., supra, pp. 41576, 41602.)

The Phase II regulations also allowed a powerplant to seek and receive a

site-specific variance from the standards. Such a variance could be obtained by

establishing that the plant?s costs of literal compliance would be ?significantly

greater? than (1) the costs the EPA had considered in setting the performance

standards or (2) ?the benefits of compliance? with the standards. (40 C.F.R.

? 125.94(a)(5)(i), (ii) (2011).) If a variance was granted, the plant would be

46


required to employ remedial measures that yielded results ?as close as practicable

to the applicable performance standards.? (Ibid.)

While the instant appeal was pending, the Second Circuit addressed the

Phase II regulations in Riverkeeper II. The federal court held that while section

316(b) of the CWA allows consideration of extreme forms of economic burden or

unfeasibility, the Phase II regulations were invalid under section 316(b) insofar as,

among other things, they determined BTA, or allowed such a site-specific

determination, based on mere cost-benefit analysis ? i.e., a simple comparison

between the expense of a particular cooling system technology and its expected

environmental benefits. (Riverkeeper II, supra, 475 F.3d 83, 98-105, 114-115.)

Nonetheless, the Court of Appeal in this case subsequently upheld the Regional

Water Board?s ?wholly disproportionate? determination, concluding that it was not

foreclosed by Riverkeeper II.

On review in this court, plaintiff, relying heavily on Riverkeeper II,

renewed its argument that the Regional Water Board had employed a cost-benefit

analysis forbidden by CWA section 316(b). At the time we granted review,

petitions for certiorari were pending in Riverkeeper II. The United States Supreme

Court thereafter granted certiorari and rendered its decision in Entergy Corp.

Entergy Corp. reversed Riverkeeper II, unequivocally holding that ?the EPA

permissibly relied on cost-benefit analysis in setting the national performance

standards and in providing for cost-benefit variances from those standards as part

of the Phase II regulations. The Court of Appeals? reliance in part on the agency?s

use of cost-benefit analysis in invalidating the site-specific cost-benefit variance

provision [citation] was therefore in error, as was its remand of the national

performance standards for clarification of whether cost-benefit analysis was

impermissibly used [citation].? (Entergy Corp, supra, 556 U.S. 208, ___

[129 S.Ct. 1498, 1510], italics added.)

47


In our view, this holding clearly disposes of plaintiff?s general claim that

CWA section 316(b) prohibited the Regional Water Board from premising its

BTA finding on a comparison of costs and benefits. Though the Regional Water

Board?s 2000 decision to renew the MLPP?s NPDES permit preceded the Phase II

regulations, and was not based upon them, there is no reason to assume the

Regional Water Board, using its ?best professional judgment? in the preregulatory

era, was forbidden to apply a form of analysis the United States Supreme Court

has determined was properly employed in subsequent regulations interpreting the

statute at issue.

Moreover, a portion of the majority?s opinion in Entergy Corp., though

dictum, undermines plaintiff?s further contention that the particular cost-benefit

standard employed by the Regional Water Board ? i.e., whether the costs of

alternatives to the MLPP?s once-through cooling system were ?wholly

disproportionate? to the expected environmental benefits ? was improper.

In his concurring and dissenting opinion in Entergy Corp., Justice Breyer

had asserted that, while he agreed some form of cost-benefit analysis was

permissible under CWA section 316(b), the EPA had failed to explain why, in the

Phase II regulations, it had abandoned its traditional ?wholly disproportionate?

standard in favor of one allowing site-specific variances where the costs of

compliance were merely ?significantly greater? than the anticipated benefits to the

environment. (Entergy Corp., supra, 556 U.S. 208, ___ [129 S.Ct. 1498, 1515]

(conc. & dis. opn. of Breyer, J.).)

In response, the majority noted that the issue raised by Justice Breyer had

no bearing on the basic permissibility of cost-benefit analysis, ?the only question

presented here.? Nonetheless, the majority remarked, ?It seems to us . . . that the

EPA?s explanation was ample. [The EPA] explained that the ?wholly out of

proportion? standard was inappropriate for the existing facilities subject to the

48


Phase II rules because those facilities lack ?the greater flexibility available to new

facilities for selecting the location of their intakes and installing technologies at

lower costs relative to the costs associated with retrofitting existing facilities,? and

because ?economically impracticable impacts on energy prices, production costs,

and energy production . . . could occur if large numbers of Phase II existing

facilities incurred costs that were more than ?significantly greater? than but not

?wholly out of proportion? to the costs in the EPA?s record.? [Citation.]? (Entergy

Corp., supra, 556 U.S. 208, ___, fn. 8 [129 S.Ct. 1498, 1510, fn. 8].)

The clear implication is that the ?wholly disproportionate? standard of cost-

benefit analysis ? the very standard employed by the Regional Water Board in

this case ? is more stringent than section 316(b) of the CWA requires for existing

powerplants such as the MLPP. Rather, the Entergy Corp. majority suggested, the

EPA was free, having ?ampl[y]? explained and justified its choice, to select for

such facilities a more lenient ?significantly greater? standard of economic and

environmental practicality. Under these circumstances, we discern no basis to

hold that the board erred by basing its BTA determination on a finding that the

costs of alternative cooling technologies for the MLPP were ?wholly

disproportionate? to the anticipated environmental benefits. We conclude that the

board?s use of this standard was proper.13


13

Following the Riverkeeper II decision, the EPA withdrew the Phase II

regulations (72 Fed.Reg. 37107-37109 (Jul. 9, 2007)), and they have not been
reissued. We have taken judicial notice that in May 2010, seeking to fill the
regulatory vacuum, the State Water Board adopted a Statewide Water Quality
Control Policy on the Use of Coastal and Estuarine Waters for Powerplant Cooling
(2010 Powerplant Cooling Policy). Under this policy, the State Water Board,
rather than the regional water boards, will issue all NPDES permits to affected
powerplants. Thermal powerplants with once-through cooling systems will be
required, by specified compliance dates, to reduce intake flow rates to mandated
levels, or to adopt other operational and/or structural controls to achieve

(Footnote continued on next page.)

49


DISPOSITION

The Court of Appeal?s judgment is affirmed. To the extent the Court of

Appeal decisions in Ashford v. Culver City Unified School Dist., supra,

130 Cal.App.4th 344, Sierra Club v. Contra Costa County., supra, 10 Cal.App.4th

1212, Newman v. State Personnel Bd., supra, 10 Cal.App.4th 41, and Resource

Defense Fund v. Local Agency Formation Com., supra, 191 Cal.App.3d 886, are

inconsistent with the views expressed herein, those decisions are disapproved.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KITCHING, J.*




* Associate Justice, Court of Appeal, Second Appellate District, Division Three,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.



(Footnote continued from previous page.)

commensurate reductions in impingement and entrainment mortality. In the
interim, affected plants must adopt mitigating measures to control impingement
and entrainment damage.




Several powerplant owners, including Dynegy, have filed a petition for

mandate challenging the 2010 Powerplant Cooling Policy. (Genon Energy, Inc.,
et al. v. State Water Resources Control Board, etc., et al.
, Super. Ct. Sac. County,
Oct. 27, 2010, No. 2010-80000701.)


50











CONCURRING OPINION BY WERDEGAR, J.

I fully concur in the majority opinion. I write separately only to point out a

limitation on the scope of our decision today.

The majority correctly holds that Code of Civil Procedure section 1094.5,

governing the procedure to be followed in adjudicating petitions for writ of

administrative mandate, does not preclude a trial court from ordering an

interlocutory remand requiring agency reconsideration of one or more specific

findings or decisions; nor is the agency precluded, under this statute, from

considering new evidence on such a remand. (Maj. opn., ante, at pp. 36-37.)

Because the remand order at issue in this case related to compliance with a

provision of the federal Clean Water Act (33 U.S.C. ? 1326(b)) rather than to

compliance with the California Environmental Quality Act (CEQA; Pub.

Resources Code, ? 21000 et seq.), the majority has no occasion here to consider

whether a trial court may, similarly, order remand for reconsideration of an agency

decision for compliance with CEQA without issuing a writ of mandate.

Public Resources Code section 21168.9, subdivision (a) provides that if a

court finds a public agency?s finding or decision to have been made in violation of

CEQA, ?the court shall enter an order that includes one or more of the following?

mandates. The statute specifically outlines the scope of the mandate to be issued,

including as necessary that the agency void its findings and decisions, take any

actions required to come into compliance with CEQA, and in the meantime

1


suspend any part of the project at issue that might cause an adverse environmental

effect. (Pub. Resources Code, ? 21168.9, subd. (a)(1)-(3).) Balancing these

commands with protections against an overbroad writ, the statute limits the order

to ?only those mandates which are necessary to achieve compliance with this

division and only those specific project activities in noncompliance with this

division,? provided the noncomplying portion of the decision or finding is

severable from the complying portion. (Id., subd. (b).) The order is to be made by

?peremptory writ of mandate,? and the trial court is to retain jurisdiction ?by way

of a return to the peremptory writ? to ensure agency compliance. (Ibid.)

Consequently, while CEQA challenges are often brought through a petition

for administrative mandate under Code of Civil Procedure section 1094.5, CEQA

contains its own detailed and balanced remedial scheme, offering protections for

both agencies and those challenging agency action under CEQA. I do not read the

majority?s analysis of the administrative mandate procedure in this non-CEQA

case as speaking to the procedures to be followed when an agency?s action is

found to have violated CEQA.

WERDEGAR, J.

I CONCUR:

CANTIL-SAKAUYE, C. J.

2




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Voices of the Wetlands v. California State Water Resources Control Board
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 157 Cal.App.4th 1268
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S160211
Date Filed: August 15, 2011
__________________________________________________________________________________

Court:
Superior
County: Monterey
Judge: Robert A. O?Farrell

__________________________________________________________________________________

Counsel:

Earthjustice, Mills Legal Clinic of Stanford Law School, Deborah A. Sivas, Leah J. Russin and Holly D.
Gordon for Plaintiff and Appellant.

Kurt R. Wiese, Barbara Baird; Daniel P. Selmi; John J. Sansone, County Counsel (San Diego), Paula
Forbis, Deputy County Counsel; Law Offices of Nancy Diamond, Nancy Diamond; Steven M. Woodside,
County Counsel (Sonoma) and Cory W. O?Donnell, Deputy County Counsel, for South Coast Air Quality
Management District, San Diego County Air Pollution Control District, North Coast Unified Air Quality
Management District and Northern Sonoma County Air Pollution Control District as Amici Curiae on
behalf of Plaintiff and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Gordon Burns and Manuel
M. Medeiros, State Solicitors General, J. Matthew Rodriquez, Chief Assistant Attorney General, Mary E.
Hackenbracht and Kathleen Kenealy, Assistant Attorneys General, John Davidson, Anita E. Ruud and
Michael M. Edson, Deputy Attorneys General, for Defendants and Appellants.

Pillsbury Winthrop Shaw Pittman, Sarah G. Flanagan, John M. Grenfell and Blaine I. Green for Real
Parties in Interest and Appellants.

Michael J. Levy and William M. Chamberlain for California Energy Commission as Amicus Curiae on
behalf of Real Parties in Interest and Appellants.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Deborah A. Sivas
Mills Legal Clinic of Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
(650) 723-0325

Anita E. Ruud
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5533

Sarah G. Flanagan
Pillsbury Winthrop Shaw Pittman
50 Fremont Street
San Francisco, CA 94120-7880
(415) 983-1000