World Business Academy v. Cal. State Lands Commission

Filed 6/13/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

WORLD BUSINESS ACADEMY, B284300

Petitioner and Appellant, (Los Angeles County
Super. Ct. No. BS163811)
v.
CALIFORNIA STATE LANDS
COMMISSION,

Defendant and Respondent;

PACIFIC GAS & ELECTRIC
COMPANY,

Real Party in Interest and
Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary H. Strobel, Judge. Affirmed.
 Humphrey & Rist, Christina A. Humphrey, Thomas A.
Rist; Law Offices of J. Kirk Boyd, J. Kirk Boyd for Petitioner and
Appellant.
Xavier Becerra, Attorney General, Deborah M. Smith, and
Christina Morkner Brown, Deputy Attorneys General for
Defendant and Respondent California State Lands Commission.
Shute Mihaly & Weinberger, William J. White as Amicus
Curiae on behalf of Respondent California State Lands
Commission.
Armbruster Goldsmith & Delvac, Damon P. Mamalakis for
Real Party in Interest and Respondent Pacific Gas and Electric
Company.

Real party in interest and respondent Pacific Gas and
Electric Company (PG&E) owns and operates the Diablo Canyon
nuclear power plant in San Luis Obispo County. The plant uses
water from the Pacific Ocean to operate its cooling systems.
The water intake and discharge structures are situated on state-
owned submerged and tidal lands overseen by defendant and
respondent California State Lands Commission (Commission).
PG&E and the Commission entered into two long-term leases, set
to expire in August 2018 and May 2019, which authorized PG&E
to build and operate the water intake and discharge structures.
With those leases nearing expiration, PG&E applied for a
consolidated replacement lease extension through 2025, when it
plans to cease operating the plant.
The Commission held public hearings about the matter and
eventually approved the application. It did not prepare an

2
environmental impact report (EIR) under the California
Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.)1 prior to making its determination. Instead, the
Commission concluded the lease replacement, which maintained
the status quo at the plant, was subject to the “existing facilities”
categorical exemption to CEQA (Cal. Code Regs., tit. 14
(Guidelines) § 15301). The Commission further found
inapplicable the “unusual circumstances” exception, which
supersedes the existing facilities exemption “where there is a
reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances.”
(Guidelines § 15300.2, subd. (c).)
Petitioner and appellant World Business Academy sought
an administrative writ and declaratory relief in Los Angeles
County Superior Court. It contended that the lease replacement
should not have been subject to the existing facilities exemption,
and that even if it was, the unusual circumstances exception to
the exemption should apply. Appellant further argued that the
lease replacement violated the public trust doctrine. The trial
court rejected these contentions and denied the writ and
declaratory relief. We affirm.
BACKGROUND
The Diablo Canyon power plant is a two-unit nuclear power
plant owned and operated by PG&E. It is adjacent to the Pacific
Ocean, near Avila Beach in San Luis Obispo County, on
approximately 750 acres of land owned by PG&E. The plant was

All further statutory references are to the Public
1
Resources Code unless otherwise indicated.

3
completed in 1973 and began operations in 1985. Its two nuclear
units still operate today and are licensed by the federal Nuclear
Regulatory Commission (NRC) to operate until November 2, 2024
(unit 1) and August 26, 2025 (unit 2).
The plant uses a “once-through” cooling system to cool the
nuclear units. Each day, the cooling system draws more than two
billion gallons of seawater from a breakwater-protected intake
cove on the coast. The water is pumped through “traveling water
screens” to filter out “ocean debris.” Debris larger than the
screening mesh—including plants and fish—gathers or
“impinges” on the screens and is subsequently washed off and
sent through “[g]rinding and mincing equipment installed in the
inlets of the refuse sump.” “Entrained debris smaller than the
3/8-inch screening mesh passes through the cooling system” along
with the seawater, which is heated by approximately 20 degrees
Fahrenheit during its five-minute journey through the plant. The
heated water is then returned to the Pacific Ocean via a
discharge channel located in the coastal bluff.
The intake cove, breakwaters, intake structure, and
discharge channel are located on state-owned tidal and
submerged lands. The Commission authorized a 49-year lease in
1969, allowing PG&E to construct and operate the intake cove,
intake structures and breakwaters on state-owned land. The
Commission authorized a second 49-year lease in May 1970, for
the cooling water discharge channel. The leases had expiration
dates of August 27, 2018 and May 31, 2019, respectively, several
years before the plant’s federal operating licenses are scheduled
to expire.
The power plant cannot operate without the cooling system,
however, and the cooling system cannot operate without the

4
infrastructure located on the leased lands. PG&E accordingly
submitted an application to the Commission in January 2015 to
replace the expiring leases with a single new lease to run
coterminously with its federal licensure.2
The Commission held a public meeting on the matter on
December 18, 2015. During that meeting, then-Committee
chairperson and Lieutenant Governor Gavin Newsom remarked
that “every few years, another [seismic] fault is discovered” near
the plant, raising “another question mark about its safety and its
potential to survive an earthquake. . . .” He further observed that
the original leases, which predated the 1970 enactment of CEQA,
never had been given “CEQA consideration.” Newsom queried
the extent of CEQA review that might be required in this case.
Commission Executive Officer Jennifer Lucchesi assured
Newsom that Commission staff would prepare an analysis “with
potentially some recommendations on not only an approach and a
framework for analyzing the CEQA considerations, but also a
framework for looking at the public trust issues” associated with
the lease replacement.
Commission staff subsequently prepared an “Informational
Update” dated February 9, 2016. In that update, Commission
staff reported that PG&E had taken the position that no
environmental review of the lease replacement was necessary
under the “existing facilities” categorical exemption to CEQA
because the plant was “an existing facility with no change or

2 PG&E submitted a license renewal application to the
NRC in 2009. The NRC initiated an environmental review
pursuant to the National Environmental Policy Act and held
public environmental scoping meetings in August 2015. As we
discuss post, PG&E ultimately withdrew its license renewal
application, so its federal licensures will expire in 2024 and 2025.

5
expansion of an existing use.” Commission staff further reported
that the existing facilities exemption could be overridden by the
unusual circumstances exception, which applies “where there is a
‘reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances.’ (Cal.
Code Regs., tit. 14, § 15300.2, subd. (c).)”
The update then made several observations about the
characteristics of the plant and its location. It first noted that
the plant “is the only active nuclear power plant in California,
supplying approximately 18,000 gigawatt-hours of electricity
annually (nearly 10% of California’s electricity generation).” It
further noted that the plant’s “nuclear fuel source and proximity
to fault lines distinguish it from other power plants in
California.” The update also acknowledged the existence of
“substantial disagreement” between PG&E and the United States
Geological Survey about the risks associated with two fault lines,
the Shoreline and the Hosgri, near the plant. PG&E believed the
faults posed no hazard to the plant, which was built and
retrofitted to withstand a magnitude 7.5 earthquake. In
contrast, a seismologist with the U.S. Geological Survey, Jeanne
Hardebeck, “believe[d] that a joint seismic event of the Hosgri
and Shoreline faults could exceed [the plant]’s design capacity for
safe operation, possibly reaching a magnitude of 7.7.”
The update concluded this discussion without explicitly
identifying any of these characteristics as unusual circumstances
or assessing whether any of them would cause the lease
replacement to have a significant effect on the environment.
Indeed, the update made no recommendation to the Commission
regarding application of the existing facilities exemption or the
unusual circumstances exception. Instead, it noted that

6
Commission staff “continue[d] to evaluate the appropriate
environmental review pursuant to CEQA for this application.”
The update further advised the Commission that it would need to
analyze the lease replacement under the public trust doctrine,
pursuant to which the Commission is required to ensure that the
tidal and submerged lands under its control are reserved for
appropriate uses and the general benefit of the community. (See
Citizens (2011) 202 Cal.App.4th 549, 570-571.)
In March 2016, representatives from appellant met with
Commission staff and delivered a presentation, “On Public
Health Issues and Proposed Diablo Canyon CEQA Review,”
which addressed adverse public health outcomes appellant
attributed to the operation of the plant. Appellant’s presentation
highlighted increased incidence of cancer in San Luis Obispo
County, particularly cancers of the thyroid, breast, and skin; and
increased incidence of low-birth weight babies and infant
mortality “in the 10 zip code areas in Santa Barbara County
closest to Diablo Canyon.” The presentation also asserted that
the incidence of childhood cancer in the vicinity of the Rancho
Seco nuclear power plant had decreased “dramatically” after that
plant was closed in 1989.
Appellant’s presentation was based on a research paper by
Joseph Mangano, MPH, MBA, “Report on Health Status of
Residents in San Luis Obispo and Santa Barbara Counties Living
Near the Diablo Canyon Nuclear Reactors Located in Avila
Beach, California.” The Commission also received a report
challenging Mangano’s research. That report, prepared by the
San Luis Obispo County Public Health Department, concluded
“none of [Magano’s] claims hold up” due to “substantial and
obvious problems in methodology wherein basic statistical

7
precepts were overlooked,” as well as “selection bias in choosing
case and control groups.”
On June 21, 2016, PG&E entered into an agreement called
the “Joint Proposal” with Friends of the Earth, Natural
Resources Defense Council, Environment California,
International Brotherhood of Electrical Workers Local 1245,
Coalition of California Utility Employees, and Alliance for
Nuclear Responsibility, at least some of which previously had
opposed its lease replacement application.3 The signatories
agreed that PG&E would “retire Diablo Canyon at the expiration
of its current NRC operating licenses”—in 2024 and 2025—and
that all signatories “will jointly propose and support the orderly
replacement of Diablo Canyon with [greenhouse gas] free
resources.” PG&E accordingly agreed to “immediately cease any
efforts on its part to renew the Diablo Canyon operating licenses
and will ask the NRC to suspend consideration of the pending
Diablo Canyon license renewal application pending withdrawal
with prejudice of the NRC application upon [California Public
Utilities Commission] approval of the Joint Proposal . . . .”
Friends of the Earth and the Natural Resources Defense Council
subsequently withdrew their objections to the lease replacement
application. Nothing in the Joint Proposal “constrain[ed] or
limit[ed] in any way the right of Parties to raise safety or

3 In its response to the amicus curiae brief filed by Friends
of the Earth and Natural Resources Defense Council, appellant
World Business Academy asserts that it also “was an integral
part of the settlement discussions” that resulted in the Joint
Proposal. It did not sign the document, however, because it
“ultimately would not support a political deal that would gut
CEQA and grant an exemption in contravention of established
law and precedent.”

8
compliance issues related to Diablo Canyon with the NRC or any
other government agency, going forward.”
Commission staff prepared a final report in advance of the
Commission’s June 28, 2016 public meeting. In this report,
Commission staff concluded that “[t]he issuance of the proposed
limited-term lease fits squarely into the categorical exemption for
existing facilities under CEQA.” It explained, “[t]he
infrastructure that is the subject of this proposed lease has
existed for over 40 years and are [sic] considered part of the
existing environmental baseline. There are no operational or
physical changes to the DCPP, an existing facility, in connection
with the subject lease application.”
The report continued, however, that “[t]he question is
whether the [unusual circumstances] exception to this exemption
applies. It is within the Commission’s authority to use its
independent judgment, based on the facts, to determine whether
there is a reasonable possibility that the issuance of the proposed
limited-term interim lease will have a significant effect on the
environment due to unusual circumstances based on substantial
evidence.” The report acknowledged that the coastal plant “is the
only active nuclear power plant in California,” but noted that
“there are many other power plants along California’s coast in
active seismic regions.” The report further noted that the plant
“is proximate to several earthquake fault lines, including, [sic]
the Hosgri, Shoreline, San Andreas, San Simeon, San Luis Bay,
and Los Osos faults.” The report reiterated the existence of
“substantial disagreement” between PG&E and U.S. Geological
Survey seismologist Hardebeck. It also noted, however, that the
NRC agreed with PG&E that a joint rupture of the Hosgri and
Shoreline faults was unlikely. It additionally noted that the

9
plant was designed to withstand ground shaking of up to 0.83 g,4
and the largest ground motion recorded at the plant to date was
0.042 g, a full order of magnitude less. The report further stated
that staff evaluated the possible impact of rising sea levels on the
plant and its cooling system infrastructure, and concluded “that
sea-level rise will have no impact on the safe function of the
DCPP for the limited term of the proposed lease.” It did not
highlight for the Commission any other potential unusual
circumstances, such as the adverse health outcomes appellant
discussed at the March 2016 meeting, or their effects on the
environment. The report recommended that the Commission
apply the existing facilities exemption and authorize the lease
replacement.
The report also considered the public trust doctrine. In its
analysis of that issue, the Commission considered the
environmental impacts of the plant’s once-through cooling
system. It noted that the State Water Resources Control Board
had adopted a new policy on once-through cooling, which would
require modifications to the plant if it were to continue operating
after 2025. The report concluded that the new policy “
appropriately regulates” the impacts to marine life associated
with once-through cooling. The report also noted that the Joint
Proposal addressed “policy concerns associated with the
shutdown of the DCPP in 2025, including replacement energy . .
., workforce transition, and community impacts.” It ultimately
concluded that the lease replacement “will not significantly
interfere with the trusts upon which [public] lands are held or
substantially impair the public rights to navigation, fisheries, or

4 Perthe report, “g refers to the acceleration that the Earth
imparts to objects on or near its surface due to gravity.”

10
other Public Trust needs and values at this time, at this location,
and for the limited-term lease beginning June 28, 2016 and
ending August 26, 2025.”
Executive Officer Lucchesi presented these
recommendations during the Commission’s public meeting on
June 28, 2016. The Commission also heard comments from
numerous members of the public. Many members of the public,
including speakers affiliated with appellant, urged the
Commission to require an EIR. They also presented the
Commission with a petition requesting an EIR. Many other
members of the public spoke in support of the lease renewal, and
some specifically urged the Commission not to require an EIR.
At the conclusion of the hearing, all three commissioners
expressed support for and ultimately voted to adopt the
recommendations the Commission staff made in its report.
Executive Officer Lucchesi subsequently filed a notice of
exemption finding that the lease renewal was exempt from CEQA
under the existing facilities exemption. The notice contained the
following “Reasons for exemption”: “Issuance of a General Lease
– Industrial Use for the above-mentioned structure(s) will not
cause a physical change in the environment and will not change
existing activities in the area. There is no reasonable possibility
that the activity will have a significant effect on the environment
due to unusual circumstances. Therefore, the project will not
have a significant effect on the environment and the above
categorical exemption(s) apply(ies).”
On August 2, 2016, two non-profit organizations,
Immaculate Heart Community and appellant World Business
Academy, filed a verified petition for a writ of administrative

11
mandate in the Los Angeles County Superior Court.5 The
petition asserted two causes of action: (1) the Commission
“violated CEQA, prejudicially abused its discretion, failed to
proceed in a manner required by law, and failed to support its
findings and conclusions with analysis and facts by determining
that the issuance of the PG&E Lease was ‘not a project’ under
CEQA, and, by implication, that no unusual circumstances
existed in this case,” and (2) the “Commission violated the Public
Trust Doctrine, prejudicially abused its discretion, failed to
proceed in a manner required by law, and failed to support its
findings and conclusions with analysis and facts by approving the
PG&E Lease, which will irreparably injure and deplete public
trust resources, including but not limited to, the marine
ecosystem in the vicinity of Diablo Canyon, special status fish
and wildlife, and California’s coastal shoreline, without first
requiring the preparation of an EIR under CEQA.” The parties
lodged a copy of the administrative record with the trial court
and filed a joint appendix containing pertinent excerpts.
The trial court held a hearing on the matter in July 2017.
The trial court denied relief and explained its reasons for doing so
in a 54-page minute order. As is relevant here,6 the trial court
agreed with the Commission that the lease replacement was
within the existing facilities exemption to CEQA, and that the
unusual circumstances exception to that exemption did not apply.
The trial court further concluded that the Commission’s public

5 Only World Business Academy is a party to this appeal.
6 The trial court’s ruling, while quite thorough and helpful
in framing the issues before us, is of limited relevance because we
directly review the decision of the Commission, not that of the
trial court. (See post, at pp. 16-17.)

12
trust analysis was supported by substantial evidence and was not
arbitrary.
Appellant timely appealed.
DISCUSSION
I. CEQA Overview
CEQA was enacted in 1970 to advance California’s strong
public policy of environmental protection. (Tomlinson v. County
of Alameda (2012) 54 Cal.4th 281, 285 (Tomlinson).) The key
requirement of this comprehensive scheme is “the preparation of
an EIR for ‘any project that a public agency proposes to carry out
or approve that may have a significant effect on the
environment.’ [Citation.]” (Orange County Water District v.
Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 333.) An
EIR is a “detailed,” “informational document which, when its
preparation is required . . ., shall be considered by every public
agency prior to its approval or disapproval of a project. The
purpose of an environmental impact report is to provide public
agencies and the public in general with detailed information
about the effect which a proposed project is likely to have on the
environment; to list ways in which the significant effects of such
a project might be minimized; and to indicate alternatives to such
a project.” (§ 21061.) Though preparation of an EIR is “often
lengthy and expensive” (City of Santee v. County of San Diego
(2010) 186 Cal.App.4th 55, 63), an EIR must be prepared
“‘whenever it can be fairly argued on the basis of substantial
evidence that [a] project may have significant environmental
impact.’ [Citations.]” (American Coatings Association, Inc. v.
South Coast Air Quality District (2012) 54 Cal.4th 446, 473.)
This threshold was set low to ensure that CEQA provides
effective environmental protection. (Ibid.)

13
 The first step in determining whether an EIR is required
for a particular activity—here, the lease replacement—is to
determine whether the activity is a “project” as defined in CEQA.
(Tomlinson, supra, 54 Cal.4th at p. 286.) As relevant here, a
“project” is “an activity which may cause either a direct physical
change in the environment, or a reasonably foreseeable indirect
physical change in the environment” and “is supported, in whole
or in part, through contracts . . . from one or more public
agencies.” (§ 21065, subd. (b).) If the proposed activity is a
“project,” the agency must continue its review. If not, CEQA does
not apply and the environmental review process is complete.
There is no dispute that the lease replacement is a
“project.” The Commission thus was required to proceed to the
next step, determining if the project qualifies for either a
statutory (§ 21080) or categorical exemption (§ 21084, subd. (a);
Guidelines § 15300) to CEQA. Statutory exemptions are absolute
exemptions enacted by the Legislature. (North Coast Rivers
Alliance v. Westlands Water District (2014) 227 Cal.App.4th 832,
850 (North Coast).) “‘Projects and activities can be made wholly
or partially exempt, as the Legislature chooses, regardless of
their potential for adverse [environmental] consequences.’
[Citation.]” (Ibid.) Categorical exemptions are “classes of
projects” that the Secretary of the Natural Resources Agency,
with the authorization of the Legislature, has determined are
exempt because they do not have a significant effect on the
environment. (Tomlinson, supra, 54 Cal.4th at p. 286.) For
instance, the Secretary has determined that, as a class, projects
involving “negligible or no expansion of an existing use” are
exempt from CEQA. (Guidelines § 15301.) This “existing
facilities” exemption is at issue here.

14
 Unlike statutory exemptions, categorical exemptions such
as the “existing facilities” exemption are subject to exceptions
enumerated in Guidelines section 15300.2. (North Coast, supra,
227 Cal.App.4th at p. 850.) An agency may not apply a
categorical exemption without considering whether it is
foreclosed by an exception. (Berkeley Hillside Preservation v. City
of Berkeley (2015) 60 Cal.4th 1086, 1103 (Berkeley Hillside).) The
most commonly raised exception is the “unusual circumstances”
exception at issue here. (See Fairbank v. City of Mill Valley
(1999) 75 Cal.App.4th 1243, 1259.) That exception provides that
a categorical exemption may not be used “where there is a
reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances.”
(Guidelines § 15300.2, subd. (c).) We define these terms in our
discussion below.
The party advocating for the application of the unusual
circumstances exception bears the burden of demonstrating that
the project falls within the exception. (Fairbank v. City of Mill
Valley, supra, 75 Cal.App.4th at p. 1259.) If the agency
determines that an exemption applies, and no exception
forecloses its application, the project is exempt from CEQA and
no further environmental review is required. (Tomlinson, supra,
54 Cal.4th at p. 286.) Thus, the project moves forward without
the preparation of an EIR. That is the posture in which this
appeal has arisen.
II. Standard of Review
“‘In considering a petition for a writ of mandate in a CEQA
case, “[o]ur task on appeal is ‘the same as the trial court’s.’
[Citation.]” . . . Accordingly, we examine the [Commission’s]
decision, not the trial court’s.’ [Citation.]” (Walters v. City of

15
Redondo Beach (2016) 1 Cal.App.5th 809, 816-817 (Walters); see
also Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501 [“as
to administrative determinations properly reviewed in the
superior court under the substantial evidence standard or an
abuse of discretion standard, the scope of review is the same in
the appellate court as it was in the superior court, that is, the
appellate court reviews the administrative determination, not
that of the superior court, by the same standard as was
appropriate in the superior court”]). Our review thus “is de novo
in the sense that we review the agency’s actions as opposed to the
trial court’s decision.” (North Coast, supra, 227 Cal.App.4th at p.
849.)
“[O]ur inquiry extends only to whether there was a
prejudicial abuse of discretion” by the agency. (North Coast,
supra, 227 Cal.App.4th at p. 849, citing § 21168.5.) “‘Such an
abuse is established “if the agency has not proceeded in a manner
required by law or if the determination or decision is not
supported by substantial evidence.” [Citations.]’ [Citation.]” (Id.
at p. 850.) To the extent the question presented turns on an
interpretation of CEQA, the Guidelines, or the scope of a
particular exemption, it is one of law that we review de novo.
(Walters, supra, 1 Cal.App.5th at p. 817.)
III. Record on Review
The California Rules of Court provide that the appellate
record in a civil case must contain pertinent written documents
from the superior court proceedings being reviewed. (See Cal.
Rules of Court, rule 8.120(a).) The rules further provide that an
appellant intending to raise “any issue that requires
consideration of the record of an administrative proceeding that
was admitted in evidence, refused, or lodged in the superior

16
court” must either include (Cal. Rules of Court, rule 8.120(a)(2))
or designate for inclusion (Cal. Rules of Court, rule 8.121(b)(2))
the administrative record in the record on appeal. Appellant did
not designate or include the administrative record, nor did
respondents timely request “that this administrative record be
transmitted to the reviewing court.” (Cal. Rules of Court, rule
8.123(b)(2).) Instead, the parties initially provided only a joint
appellate appendix containing (among other things) the joint
appendix of pertinent administrative record excerpts that they
filed in the trial court.
These excerpts were not sufficient to facilitate our review.
The Commission, whose ruling we review, had before it the full
administrative record. We cannot determine if a decision is
supported by substantial evidence without assessing the evidence
underlying the decision. Indeed, asserting that “[t]he trial court
joint appendix documents do not limit the Administrative Record
documents that may be cited on appeal,” respondents cited
directly to pages of the administrative record that were not
included in the joint appendix. Appellant agreed with this
assertion in its reply brief, in which it also cited directly to the
administrative record rather than the joint appendix, but did not
lodge the administrative record with this court. Neither side
referred to both “the volume and page number” of the
administrative record, as required by Rule 8.204(a)(1)(C), nor did
they provide parallel citations to the excerpts included in the
joint appendix.
This court has no obligation to perfect an inadequate
record. To the contrary, the general rule is that “[f]ailure to
provide an adequate record concerning an issue challenged on
appeal requires that the issue be resolved against the

17
appellants.” (Eureka Citizens for Responsible Government v. City
of Eureka (2007) 147 Cal.App.4th 357, 366 (Eureka).) We exercise
our discretion in favor of not applying that general rule here,
however, because appellant belatedly lodged the administrative
record on April 26, 2018.
IV. Existing Facilities Exemption
A. Legal Principles
The existing facilities exemption is one of the categorical
exemptions the Secretary of the Natural Resources Agency
promulgated after determining that, as a class, existing facilities
do not have a significant effect on the environment. (See
Guidelines §§ 15300, 15301.) The Guidelines define “significant
effect on the environment” as “a substantial, or potentially
substantial, adverse change in any of the physical conditions
within the area affected by the project including land, air, water,
minerals, flora, fauna, ambient noise, and objects of historic or
aesthetic significance.” (Guidelines, § 15382; see also Pub.
Resources Code, § 21083, subd. (b).) Thus, in creating the
exemption, the Secretary has found that existing facilities do not
create substantial, adverse changes in their surrounding
environments.
The “existing facilities” class “consists of the operation,
repair, maintenance, permitting, leasing, licensing, or minor
alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving
negligible or no expansion of use beyond that existing at the time
of the lead agency’s determination.” (Guidelines § 15301.) When
determining whether the existing facilities exemption applies,
“The key consideration is whether the project involves negligible
or no expansion of an existing use.” (Ibid.) The Guidelines

18
provide a non-exclusive list of “the types of projects which might
fall within” the existing facilities exemption. (Ibid.) That list
includes “Existing facilities of both investor and publicly-owned
utilities used to provide electric power, natural gas, sewerage, or
other public utility services.” (Guidelines § 15301, subd. (b).)
B. Application to Nuclear Plants Generally
Appellant argues that the existing facilities exemption is
not applicable to nuclear power plants generally. It first asserts
that the exemption by its terms includes only utility structures,
like wires and telephone poles, that “convey and distribute”
power, not those that generate it. It further argues that the
Secretary of the Natural Resources Agency neither intended nor
had the authority to include nuclear power plants within the
exemption for ‘existing structures’” because categorical
exemptions include only “classes of projects that have been
determined not to have a significant effect on the environment”
(§ 21084, subd. (a)), and a nuclear power plant “by its de facto
operation has a significant effect on the environment.”
To support these arguments, appellant relies on legislative
and administrative histories regarding CEQA and revisions to
the Guidelines that were not before the Commission but of which
the trial court took judicial notice.7 Respondents do the same to

7 The trial court explained: “[W]hile Petitioners did not
submit the legislative history of [Guidelines] section 15301 below,
the Commission’s findings under section 15301 imply an
interpretation of the regulation to include nuclear power plants.
Petitioners argued during the administrative proceedings that
section 15301 did not apply. However, in their opening and reply
briefs, Petitioners argue a new legal theory why that is so. A
sound argument can be made that Petitioners did not exhaust on
the issue of whether the legislative history supports a conclusion

19
refute appellant’s arguments. Neither side addresses how the
trial court’s judicial notice of these documents affects our review
of the decision of the Commission, which did not have the
documents before it, nor do the parties request that we take
judicial notice of the legislative or administrative history.
“Extra-record evidence may be considered in quasi-judicial
administrative mandamus proceedings only if the evidence was
unavailable at the time of the hearing ‘in the exercise of
reasonable diligence’ or if improperly excluded from the record.”
(Eureka, supra, 147 Cal.App.4th at p. 367.) As in Eureka,
“[a]ppellant[ ] made no showing in the trial court that either
exception applied, and make[s] no such showing here.” (Ibid.)
Hence, to the extent they rely on legislative and administrative
history that was not before the Commission, arguments
regarding the scope of the existing facilities exemption may not
be raised.
Even were we to consider these arguments on their merits,
we would not be persuaded. Appellant argues that “the Secretary
was thinking of transmission towers carrying lines and similar
structures that do not have a significant effect on the
environment, not power generating facilities like the core reactors
and water intakes at the nuclear plant.” It points to
administrative history showing that the original list of example
projects subject to the existing facilities exemption included

section 15301 does not include nuclear power generating
facilities. However, as an alternative analysis, assuming
Petitioners did exhaust as to this argument, the court considers
the legislative history and associated legal theory to determine
the proper interpretation of section 15301. Petitioners’ request
for judicial notice as to Exhibit 1, and their supplemental request
as to Exhibits A to F are GRANTED.”

20
“Existing facilities of both investor, and publicly owned utilities
used to convey or distribute electric power, natural gas, sewage,
etc.” (Emphasis added.) The current version of the exemption
uses the word “provide” in place of the words “convey or
distribute” but is otherwise substantively the same. (See
Guidelines § 15301, subd. (b).) Appellant asserts that “no one,
including major environmental groups, spoke against the change
from convey and distribute to provide.” Thus, “based on the plain
meaning of the words, it was clear to all that the exemption
applied to transmission lines and the distribution of electricity . .
. . it was clear to all that the amendment was not intended to be
an exemption for nuclear power plants per se.”
We disagree. The starting point for interpreting a statute
or regulation is not its legislative or administrative history but
rather the text of the statute or regulation itself. (Berkeley
Hillside, supra, 60 Cal.4th at p. 1097.) We ascribe to words their
usual meanings and avoid interpretations that render any
language surplusage. (Ibid.) “When statutory language is clear,
we must apply that language without indulging in
interpretation.” (Brewer v. Patel (1993) 20 Cal.App.4th 1017,
1021.) Here, the existing facilities exemption specifically states
that it may be applied to “investor and publicly-owned utilities
used to provide electric power . . . .” The Diablo Canyon plant is
an investor-owned utility that generates electric power. The
word “provide,” as commonly understood, plainly encompasses
the generation of power in addition to its mere transmission.
Moreover, the Guideline states that the list of examples is “not
intended to be all-inclusive,” and emphasizes that the “key
consideration” is not a facility’s purpose or use but rather
“whether the project involves negligible or no expansion of an

21
existing use.” (Guidelines, § 15301.) Appellant correctly observes
that “‘exemption categories are not expanded or broadened
beyond the reasonable scope of their statutory language’” (Save
Our Carmel River v. Monterey Peninsula Water Management
District (2006) 141 Cal.App.4th 677, 697 (Carmel River)), but the
language here reasonably includes the plant.
Appellant also argues that the Secretary lacks the
authority to include nuclear power plants within the existing
facilities exemption because section 21084 empowers him or her
to exempt only activities that do not have a significant effect on
the environment. Appellant further asserts that section 21084
requires the Secretary to “make a finding that the listed classes
of projects” in categorical exemptions “do not have a significant
effect on the environment,” and no such finding can be made as to
nuclear power plants due to “[l]egislative history and common
sense.” These contentions also are not persusasive.
The “class” of projects at issue in the existing facilities
exemption is not, as appellant’s argument suggests, nuclear
power plants. Rather, it is existing facilities of all types. It was
reasonable and within the scope of the Secretary’s authority to
find that such facilities as a class do not have a significant effect
on the environment. The continued operation, leasing, or “minor
alteration” of facilities, “involving negligible or no expansion of
use beyond that existing,” is unlikely to cause “a substantial
adverse change in the physical conditions which exist in the area
affected by the proposed project.” (Guidelines §§ 15002, subd. (g),
15301.)
C. Application in this Case
Appellant next contends that the Commission failed to
undertake a proper legal analysis and make appropriate factual

22
findings supporting the application of the existing facilities
exemption. It claims that the Commission’s adoption of the staff
report and subsequent issuance of a one-page notice of exemption
“did not come close to meeting its burden because it simply
accepted as correct a seven-page single-spaced letter from
PG&E’s lawyer misstating the law of Berkeley Hillside and
erroneously stating that as long as the operations for Diablo
continued the same, then the Commission did not need to make
other findings and could simply conclude that the exemption
applied.” We disagree.
“The findings of an administrative agency can be informal
so long as they serve the purposes of enabling the parties to
determine whether and on what basis to appeal and enabling a
reviewing court to determine the basis for the decision.
[Citation.] Findings may consist of adopting the
recommendations in a staff report. [Citation.]” (Carmel River,
supra, 141 Cal.App.4th at p. 701.) “[A]n agency’s finding that a
particular proposed project comes within one of the exempt
classes necessarily includes an implied finding that the project
has no significant effect on the environment.” (Davidon Homes v.
City of San Jose (1997) 54 Cal.App.4th 106, 115.) “On review, an
agency’s categorical exemption determination will be affirmed if
supported by substantial evidence that the project fell within the
exempt category of projects.” (Ibid.) On the other hand, “[a]n
agency abuses its discretion if there is no basis in the record for
its determination that the project was exempt from CEQA.” (Id.
at p. 114.)
Here, the record supports the Commission’s application of
the existing facilities exemption. The project at issue involves
the “leasing . . . of existing public or private structures, facilities,

23
mechanical equipment, or topographical features, involving
negligible or no expansion of use beyond that existing at the time
of the lead agency’s determination.” (Guidelines, § 15301.) The
plant further fits squarely into one of the listed examples,
“investor and publicly-owned utilities used to provide electric
power . . . .” (Guidelines, § 15301, subd. (b).) It is undisputed
that PG&E has leased the same land from the Commission for
nearly 50 years, and that the lease replacement maintains rather
than expands the plant’s current operational capacity. The letter
to which appellant refers contains only a brief outline of the
project; more thorough descriptions appear elsewhere in the
administrative record, most notably in the formal project
description PG&E submitted for the Commission’s review. The
detailed project descriptions support the Commission’s finding
that the lease replacement will not expand the existing use of the
plant.
Appellant argues that Berkeley Hillside requires more
analysis because it states that “an agency must weigh the
evidence of environmental effects along with all the other
evidence relevant to the unusual circumstances determination,
and make a finding of fact.” (Berkeley Hillside, supra, 60 Cal.4th
at pp. 1115-1116.) The relevant factual finding here is the
Commission’s implied finding that there were no unusual
circumstances. The Commission was not obligated to make
specific findings as to each proffered unusual circumstance it
rejected, or its bases for doing so.
Appellant also points to Save Our Big Trees v. City of Santa
Cruz (2015) 241 Cal.App.4th 694, 705, which states, “‘[A
categorical] exemption can be relied on only if a factual
evaluation of the agency’s proposed activity reveals that it

24
applies.’ (Muzzy Ranch Co. v. Solano County Airport Land Use
Commission (2007) 41 Cal.4th 374, 386 [ ].)” Even if the phrase
“factual evaluation” means “written findings by the agency,”
more detailed findings are not required here. Although it is not
clear from the court’s use of brackets, the underlying holding
from Muzzy Ranch states that an agency relying on the so-called
“common sense exemption” to CEQA (Guidelines § 15061, subd.
(b)(3)) must make “a factual evaluation.” (See Muzzy Ranch Co.
v. Solano County Airport Land Use Commission, supra, 41
Cal.4th at p. 386.) The Guidelines distinguish the “common
sense” exemption from other categorical exemptions, including
the existing facilities exemption. (Compare Guidelines § 15061,
subds. (b)(2) & (b)(3).) Muzzy Ranch considered only the
“common sense” exemption, so neither it nor Save Our Big Trees
is authority for the proposition appellant advances here. (See
Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624,
641.)
V. Unusual Circumstances Exception
A. Legal Principles
The primary dispute in this case concerns the
Commission’s decision not to apply the unusual circumstances
exception to the existing facilities exemption. The unusual
circumstances exception properly is applied “where there is a
reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances.”
(Guidelines § 15300.2, subd. (c).)
A project may have a significant effect on the environment
if it “has the potential to degrade the quality of the environment,
. . . or to achieve short-term, to the disadvantage of long-term,
environmental goals”; is “cumulatively considerable,” such that

25
its incremental effects “are considerable when viewed in
connection with the effects of past projects, the effects of other
current projects, and the effects of probable future projects”; or
“will cause substantial adverse effects on human beings, either
directly or indirectly.” (§ 21083, subds. (b)(1)-(3).) “‘To decide
whether a given project’s environmental effects are likely to be
significant, the agency must use some measure of the
environment’s state absent the project, a measure sometimes
referred to as the “baseline” for environmental analysis.’
[Citation.]” (Citizens, supra, 202 Cal.App.4th at p. 557.) The
baseline must reflect the existing conditions at the time of the
analysis, even if those conditions deviate from the level of
development or activity authorized at a site. (Id. at p. 558.)
Any significant effect must be attributable to unusual
circumstances. Neither CEQA nor the Guidelines define “unusual
circumstances.” (Walters, supra, 1 Cal.App.5th at p. 820; see
generally Guidelines §§ 15350-15387 [Definitions].) “Whether a
particular project presents circumstances that are unusual for
projects in an exempt class is an essentially factual inquiry, ‘“
founded ‘on the application of the fact-finding tribunal’s
experience with the mainsprings of human conduct.’”’ [Citation.]”
(Berkeley Hillside, supra, 60 Cal.4th at p. 1114.)
The party challenging an agency’s finding that an
exemption applies bears the burden of producing evidence
supporting that claim. (Berkeley Hillside, supra, 60 Cal.4th at p.
1105.) In the context of the unusual circumstances exception,
that typically requires a two-part showing: “(1) ‘that the project
has some feature that distinguishes it from others in the exempt
class, such as its size or location’ and (2) that there is ‘a
reasonable possibility of a significant effect [on the environment]

26
due to that unusual circumstance.’ (Berkeley Hillside, supra, 60
Cal.4th at p. 1105.)” (Respect Life South San Francisco v. City of
South San Francisco (2017) 15 Cal.App.5th 449, 456, footnote
omitted.)
We review the agency’s factual determination as to whether
there is a distinguishing feature—the first prong of the two-part
showing—to see if it is supported by substantial evidence.
(Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) Under this
deferential standard of review, our role is different from the
agency’s. (Ibid.) The agency must weigh the evidence before it
and make a finding based upon the weight of the competing
evidence. As a reviewing court, we do not reweigh the evidence.
Instead, we “must affirm [the agency’s] finding if there is any
substantial evidence, contradicted or uncontradicted, to support
it.” (Ibid.) We “resolv[e] all evidentiary conflicts in the agency’s
favor and indulg[e] . . . all legitimate and reasonable inferences to
uphold the agency’s finding. . . .” (Ibid.)
If there is substantial evidence of an unusual circumstance,
we move to the second prong of the test—whether there is a
reasonable possibility that the unusual circumstance will produce
a significant effect on the environment. The agency must apply
the “fair argument” standard in addressing this issue. (Berkeley
Hillside, supra, 60 Cal.4th at p. 1103.) Under that standard, “‘an
agency is merely supposed to look to see if the record shows
substantial evidence of a fair argument that there may be a
significant effect. [Citations.] In other words, the agency is not
to weigh the evidence to come to its own conclusion about
whether there will be a significant effect.’” (Id. at p. 1104.) An
agency must find a “fair argument” if there is any substantial
evidence to support that conclusion, even if there is competing

27
substantial evidence in the record that the project will not have a
significant environmental effect. (Id. at p. 1111.) Our review is
“limited to determining whether the agency applied the standard
‘in [the] manner required by law.’” (Id. at p. 1116.)
Alternatively, the party advocating for application of the
unusual circumstances exception may make a heightened, one-
element showing: that the project will have a significant
environmental effect. (Berkeley Hillside, supra, 60 Cal.4th at p.
1105.) If a project certainly will have a significant environmental
effect, that project necessarily presents unusual circumstances
and the party does not need to separately establish that some
feature of the project distinguishes it from others in the exempt
class. (Ibid.) We apply the deferential substantial evidence
review when reviewing this one-step alternative for proving the
exception. (See Berkeley Hillside, supra, 60 Cal.4th at p. 1115-
1116.)
B. Unusual Circumstances
Appellant contends the Commission’s analysis was
inadequate because it did not make findings regarding either of
the two alternatives for establishing the applicability of the
unusual circumstances exception. Indeed, neither the staff report
the Commission adopted nor the single-page notice of exemption
the Commission prepared includes findings as to whether the
lease replacement project presented an unusual circumstance
because of some characteristic that distinguished it from other
projects in the exempt class. Nor did the Commission explicitly
consider whether the project would, in fact, have a significant
impact on the environment. Instead, the Commission essentially
applied the “fair argument” standard to assess whether there was
a reasonable possibility of a significant environmental effect from

28
the project, without first concluding that the project presented an
unusual circumstance.
North Coast, supra, 227 Cal.App.4th 832, 871, also
considered whether there was a reasonable possibility of a
significant effect on the environment due to unusual
circumstances without first addressing whether there were any
unusual circumstances. In that case, the appellate court found it
unnecessary to address whether there were unusual
circumstances because the exception failed under the second
requirement, a reasonable possibility of a significant effect on the
environment. (Ibid.) We agree with the approach followed in
North Coast. We accordingly will assume, without deciding, that
the lease replacement project presents one or more unusual
circumstances.8 We nevertheless conclude that the Commission
properly applied the fair argument standard in considering
possible effects on the environment due to any unusual
circumstances.
C. Significant Effects
“Whether a fair argument can be made that the project
may have a significant effect on the environment is to be
determined by examining the whole record before the lead
agency. Argument, speculation, unsubstantiated opinion or

8 Appellant urges us to affirm the trial court’s finding that
various characteristics of the plant, including its size, location,
and storage of nuclear fuel, constituted unusual circumstances,
because PG&E did not appeal it. (The trial court nonetheless
found that the exception did not apply because there was no
substantial evidence supporting appellant’s contention that the
lease renewal project may have significant environmental
effects.) As we already have explained, we review the findings
made by the Commission, not those made by the trial court.

29
narrative, evidence which is clearly erroneous or inaccurate, or
evidence of social or economic impacts which do not contribute to
or are not caused by physical impacts on the environment does
not constitute substantial evidence.” (Guidelines, § 15384, subd.
(a).) “Substantial evidence shall include facts, reasonable
assumptions predicated upon facts, and expert opinion supported
by facts.” (Guidelines, § 15384, subd. (b).)
1. Baseline
The existence and significance of an environmental effect
must be measured from the “baseline,” or state of the
environment absent the project. Appellant acknowledges that
the relevant baseline consists of the existing conditions at the
time the agency considers the project. (Citizens, supra, 202
Cal.App.4th at pp. 557-559.) It contends, however, that the
Commission applied a “flawed” baseline because it focused “on
whether PG&E is making changes in the way it operates Diablo”
rather than on the impacts that could arise from an additional
seven years of plant operations, including “new evidence
concerning earthquake faults, rising cancer rates, rising infant
mortalities, increased marine life destruction and an expanding
dead zone, cumulative reactor embrittlement and deterioration,
potential devastation from tsunamis, and the cumulative impact
from on-site storage of thousands of spent fuel rods containing
highly-radioactive plutonium.” Appellant claims that these
“increasing threats of significant environmental effects from
plant deterioration” due to continued use cannot be ignored, and
that it is “too draconian to say that business as usual is sufficient
and is the conclusive existing condition.”
“Where a project involves ongoing operations or a
continuation of past activity, the established levels of a particular

30
use and the physical impacts thereof are considered to be part of
the existing environmental baseline.” (North Coast, supra, 227
Cal.App.4th at p. 872.) The baseline accordingly reflects “the
current operative condition” of the area being assessed. (Citizens,
supra, 202 Cal.App.4th at p. 558.) Thus, a “proposal to continue
existing operations without change would generally have no
cognizable impact under CEQA.” (North Coast, supra, 227
Cal.App.4th at pp. 872-873.) As the appellate court explained in
Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1315 (Bloom),
“thousands of permits are renewed each year for the ongoing
operation of regulated facilities, and we discern no legislative or
regulatory directive to make each such renewal an occasion to
examine past CEQA compliance. . . .”
North Coast is particularly instructive. The project at issue
in North Coast was similar to the lease replacement project here:
it was a set of two-year renewal contracts “to continue the
existing terms for water delivery” from the Central Valley
Project. (Id. at p. 838.) Like Diablo Canyon, which is large in
size and generates nearly ten percent of the state’s power, the
Central Valley Project was “‘the nation’s largest water
reclamation project and California’s largest water supplier.’
[Citation.]” (Id. at pp. 840.) The underlying contract in North
Coast was a 40-year agreement whose start date preceded the
enactment of CEQA. (See id. at p. 844.) Appellants there
contended that renewing the water delivery contract would
negatively affect nearby wildlife and contribute to increased salt
and selenium levels in the soil and groundwater. (Id. at p. 873.)
Yet the court found that the challenged activities “were clearly
part of the existing environmental baseline for Water Districts’
ongoing operations,” such that “proof of a potential for adverse

31
change in the environment from the conditions under the existing
baseline is lacking.” (Id. at p. 874.) The same is true here; all of
the purported environmental effects to which appellant points
are incident to and part of the plant’s current baseline
operations.
Appellant attempts to distinguish North Coast on three
factual grounds, none of which is persuasive.9 First, it points out
that the project in North Coast previously underwent federal
environmental review. (See North Coast, supra, 227 Cal.App.4th
at p. 847.) The lack of a similar review in this case is not
determinative. “How present conditions come to exist may
interest enforcement agencies, but that is irrelevant to CEQA
baseline determinations—even if it means preexisting
development will escape environmental review under CEQA.”
(Citizens, supra, 202 Cal.App.4th at p. 559.)
Second, appellant emphasizes that the lease renewals in
North Coast were for two years as opposed to the seven-year lease
replacement at issue here. It asserts, without citation to record
evidence or legal authority, that “[s]even years is a long time to
ignore that people are dying from health issues and that the

9 Bloom likewise is not materially distinguishable. There,
an operating medical waste incineration facility that had never
undergone environmental review sought to renew its operating
permit. (Bloom, supra, 26 Cal.App.4th at pp. 1310-1311.) The
agency responsible for issuing permits concluded the permit
renewal was exempt from CEQA under the existing facilities
exemption. (Id. at p. 1311.) The appellate court rejected the
petitioner’s contentions that the absence of previous
environmental review precluded application of the exemption.
(See ibid.) The court emphasized that “the record contains no
evidence of any significant change in its operations.” (Ibid.) The
same is true in the instant case.

32
plant is deteriorating, and to cross fingers hoping that there will
not be an earthquake, even a moderate one, that could cause a
reactor meltdown and radioactive release that may be
unstoppable.” Speculation that disaster is more likely to occur in
seven years than two is not substantial evidence nor is it a
sufficient basis on which to distinguish North Coast. As
respondents point out, the existing facilities exemption does not
include a time limit; neither does the unusual circumstances
exception.
Third, appellant argues that the “gravity of the
environmental harm is much greater” here than in North Coast
and includes the deaths of billions of fish and the possibility of a
radioactive plume descending to Los Angeles. This argument is
unpersuasive because the North Coast decision did not turn on
the degree of potential harm; the court considered the “large
volume of CVP water” used and the effects on fish to be “part of
the existing environmental baseline” without regard to their
magnitude.
Appellant also argues that we can and should “consider the
increases and intensity of significant effects.” It points to
Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131
Cal.App.4th 1170, 1196-1197 for the proposition that “nothing in
the baseline concept excuses a lead agency from considering the
potential environmental impacts of increases in the intensity or
rate of use that may result from a project.” While this is an
accurate statement of the law, it is not applicable here. The lease
replacement is intended to maintain the current status quo at the
plant. Appellant has not pointed to any evidence showing that
the project will increase either the intensity or rate of use of the
cooling system infrastructure.

33
 Finally, appellant contends that Citizens, supra, 202
Cal.App.4th 549 “held that even when existing operations are
being continued without change, future risks need to be
considered when deciding the application of CEQA.” This is
incorrect. In Citizens, the petitioner alleged defects in an EIR
prepared in connection with a 30-year lease extension for a
marine oil terminal that had been operating since 1905. In the
factual portion of its opinion, the appellate court noted that the
Commission ordered the EIR for the preexisting oil terminal after
concluding that “future oil spills constituted a potentially
significant environmental impact.” (Citizens, supra, 202
Cal.App.4th at p. 555.) Appellant asserts the Commission was
obligated to take the same approach in this case. The factual
recitation regarding the Commission’s decision to prepare an EIR
was not the holding of the case, however. “An appellate decision
is not authority for everything said in the court’s opinion but only
‘for the points actually involved and actually decided.’
[Citations.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
2. Reasonable Possibility of Significant
Effect
Appellant argues that there are numerous unusual
circumstances that may have a significant effect on the
environment.10 We consider each of the claimed environmental

10 Appellant additionally argues that four of these will have
a significant effect. Our conclusion that none of the
circumstances may have an effect necessarily forecloses the
argument that these four—the plant’s “massive size and
location,” “increases in cancer and infant mortality,” “killing
billions of fish and creating a 47 mile dead zone for marine life,”
and “storing thousands of spent fuel rods”—will have a
significant environmental effect.

34
impacts in turn. Our inquiry is whether the Commission
properly applied the “fair argument” standard. (Berkeley
Hillside, supra, 60 Cal.4th at p. 1103.) In other words, we
consider whether it erroneously ignored substantial evidence that
any of the alleged unusual circumstances may have a significant
environmental effect.
a. Size
Appellant asserts that the plant’s large size alone “supports
a ‘fair argument’ that creates an exception to the exemption.” It
does not clarify how the plant’s size—which will remain fixed
after the lease replacement—is likely to cause “a substantial, or
potentially substantial, adverse change in any of the physical
conditions within the area affected by the project.” (Guidelines
§ 15382.) Appellant also fails to point to any evidence in the
record supporting its assertions about the size of the plant or the
effect it may have. We accordingly do not find any error in the
Commission’s conclusion.
b. Location
Appellant next contends that the plant’s location on the
Pacific coast “will have a significant effect on marine life” during
the term of the lease replacement because it “is creating a
coastline dead zone stretching out 46 miles and covering roughly
93 square miles.” However, the evidence appellant cites
discusses the plant’s current impact on the environment rather
than potential future effects due to the lease replacement.
Indeed, appellant asserts that the plant “is creating a coastline
dead zone.” These preexisting effects are part of the baseline,
and appellant has not pointed to any substantial evidence
indicating that they will become worse due to the lease
replacement.

35
 Instead, appellant argues that the Commission “must
consider the future reasonably foreseeable probable killing of
marine life as well.” Appellant relies on Carmel River, supra, 141
Cal.App.4th 677, which considered whether the transfer of a
water credit was a project subject to the “replacement structure”
categorical exemption (Guidelines § 15302), and whether the
“responsible agency” (Guidelines § 15381) properly concluded
that the transfer would not have direct or indirect effects on the
environment (Guidelines § 15042). One of the responsible
agency’s internal rules—not CEQA—required it to consider the
cumulative impacts of water credit transfers on the water supply.
(Carmel River, supra, 141 Cal.App.4th at p. 701.) The appellate
court considered whether the responsible agency’s findings under
its own rule were supported by substantial evidence and
concluded they were not. (See id. at pp. 701, 705.) In making
that finding, the appellate court observed that the Guidelines
define the “cumulative impact from several projects” as “the
change in the environment which results from the incremental
impact of the project when added to other closely related past,
present, and reasonably foreseeable probable future projects.” (Id.
at p. 704; Guidelines § 15355, subd. (b), emphasis added.) This
definition is not relevant here, as appellant has not pointed to
any “reasonably foreseeable probable future projects” that could
combine with the lease replacement and result in a significant
environmental effect. To the contrary, the record clearly shows
that PG&E plans to close the plant when the lease replacement
expires.
c. Health Effects
Appellant next contends that the rates of cancer and infant
mortality in the area surrounding the plant have increased since

36
the plant opened in 1985, and that “the number of victims
succumbing to cancer and the number of infants that die in the
first year after birth will increase further” if the lease
replacement is approved. Appellant points to the Mangano study
and related presentation and asks, “What could be more
significant than the loss of newborn life?”
The Mangano study does not demonstrate a causative link
between the plant’s operations and the observed adverse health
outcomes. At best, it concludes that “elevated radioactivity in the
environment—and hence in the diet—is a factor in the rising
morbidity and mortality rates in affected populations living near
Diablo Canyon.” But the evidence in this case demonstrates that
any such effects, if they exist, are part of the baseline conditions.
The record before the Commission contained no substantial
evidence showing whether or how the lease replacement will
cause these conditions to change.
d. Marine Life
In an argument similar to its location argument, appellant
contends it is “patently obvious” that “processing and depositing
2.5 billion gallons a day of superheated seawater back into the
sea is creating a dead zone that is constantly expanding.”
Appellant asserts that the plant is near the habitats of at least
six endangered species, that “over 45 billion fish eggs and marine
larvae have died over Diablo’s 32-year operational lifetime,” and
that “[a]nother seven years of operating Diablo will increase the
number of marine organisms killed by the plant to nearly 60
billion deaths.” It further asserts that “[t]he cumulative,
potentially exponential, impacts from seven more years of plant
operations supports a fair argument of a significant effect
supporting a comprehensive environmental review under CEQA.”

37
 Evidence of an “exponential” impact on surrounding marine
life may well support a fair argument that the lease replacement
will have a significant environmental effect. Yet appellant does
not point to any such evidence in support of its sweeping claim.
None of the evidence to which it points shows that the lease
replacement will change or expand the plant’s current marine life
impacts beyond the baseline conditions. Indeed, the sole cited
evidence regarding endangered species—a public comment
regarding the plant’s effect on marine life—does not support its
assertions regarding endangered species habitats at all.
e. Fuel Rod Storage
Appellant contends that the lease replacement will result
in spent fuel rods being added to the already large collection of
radioactive waste stored at the plant. It asserts that there will be
approximately 4,300 spent fuel rods stored at the plant by 2025.
“Should waste not be stored adequately,” appellant suggests,
“radioactive substances could find their way into ground water,
or contaminate other valuable resources or sites.”
The baseline conditions at the plant include the storage of
thousands of spent fuel rods. Appellant has not pointed to any
substantial evidence supporting its speculation that the lease
replacement would cause the fuel rods to be stored inadequately
or otherwise increase the danger inherent in the ongoing on-site
storage of nuclear waste. The record shows that the plant “has
sufficient capacity to be able to take on all of the spent fuel rods
that have been used so far and that will be used between now and
the end of ’25.”
Appellant points only to data in the Mangano report
showing that Diablo Canyon was among the top five U.S. nuclear
power plants in emitting “selected types of radioactivity” in

38
“selected years.” Nothing connects these emissions to the storage
of fuel rods. More importantly, nothing connects them to the
lease replacement, or suggests that the lease replacement will
alter these historic emissions levels.
f. Embrittlement
At oral argument, appellant’s counsel emphasized that the
plant’s reactor is “embrittled” and asserted that it will become
more embrittled if the lease replacement moves forward, posing a
danger of a nuclear meltdown. The record contains only two
mentions of embrittlement. First, there is a written statement
from S. David Freeman of Friends of the Earth, which originally
was submitted to the Public Utility Commission in September
2015. It asserts, without citing to any authority, that the plant’s
reactors “have an embrittlement problem” that has “weakened
the structure to the point that the NRC has flagged the problem”
and would require “annealing” to repair. Second, there is a June
27, 2016 letter to the Commission from Alliance for Nuclear
Responsibility attorney John L. Geesman. That letter states,
“Seismic risk is a particular concern for Diablo Canyon’s Unit 1
reactor, which the Nuclear Regulatory Commission (‘NRC’)
identified in 2013 as the third-most embrittled reactor in the
United States.” That single sentence is followed by a footnote,
which states, in its entirety,
“http://pbadupws.nrc.gov/docs/ML1310/ML13108A336.
pdf.” The document to which that link points is a fifteen-page
“Summary of the March 19, 2013, Public Meeting Webinar
Regarding Palisades Nuclear Plant” prepared by the NRC in
April 2013. Neither side has indicated where in the record that
document can be found; our review did not locate it.

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 Without citation to any evidence beyond this, appellant
argued orally and in its briefs that such embrittlement “threatens
the integrity of the entire reactor pressure vessel, which can
result in a core meltdown,” and “increases the likelihood that . . .
the reactor vessel, which contains the nuclear fuel rods, will
rupture causing a catastrophic failure and major radiation
release.” Appellant asserts that, “[u]nder these circumstances,
seven years is a long time to be playing Radioactive Russian
Roulette.”
Two mentions of the undefined term “embrittlement” do
not constitute substantial evidence of the possibility of a
significant environmental effect. Appellant has not pointed to
any evidence before the Commission showing that the lease
replacement would worsen any embrittlement or make related
problems more likely. Nor has it pointed to any authority
indicating that the Commission is obliged to follow a hyperlink in
a comment letter to locate substantive support for a public
comment. Appellant’s contention that the evidence supported a
fair argument accordingly must fail.
g. Seismic Events
Appellant next contends that the risks of seismic events
such as earthquakes and tsunamis “are real and could be
devastating.” Appellant argues that the water intake
infrastructure could be overwhelmed during a tsunami, causing a
disaster akin to the meltdown of the Fukushima nuclear plant in
Japan. It also argues that the plant’s location near the Shoreline
and Hosgri faults, as well as the conflicting opinions regarding
the likelihood of those two faults rupturing simultaneously,
presents a fair argument that the lease replacement will have a
significant environmental effect. We disagree.

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 The risk of seismic events is independent of the lease
replacement. There is no evidence that the lease replacement
will heighten the risk beyond what it already was at the time of
the Commission’s decision. The earthquake specifications of the
plant are not slated to change, and there is no evidence that
continued operation of the cooling system will materially affect
the fault lines in any way. The likelihood of a tsunami
inundating the water intake system also will not be affected by
the lease replacement. The conflicting opinions on the likelihood
of a dual rupture of the Shoreline and Hosgri fault lines are not
sufficient to demonstrate a possibility that the lease replacement
will affect the seismic risk inherent at the site.
h. Terrorist Attacks
Pointing to the 9/11 Commission report and research from
2005, appellant contends that the plant is at risk of sustaining a
terrorist attack, whether physical or cyber. Appellant speculates
that terrorists could target the plant, “in an attempt to release
radioactive contamination into adjacent communities.” If that
were to happen, appellant continues, “many nearby residents
would suffer from acute radiation poisoning (short term) and
cancer (long term).”
These concerns are not predicated on the lease
replacement. Rather, they stem from the mere existence of
radioactive materials at the plant. There is no evidence in the
record that prospective terrorists will be more likely to target the
plant as a result of the lease replacement, or that the lease
replacement is likely to heighten the damage a terrorist attack
would cause. Without some evidence connecting the lease
replacement to the likelihood of an attack, appellant cannot make
the requisite fair argument.

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 i. Last Remaining Nuclear Plant
Appellant contends that the plant’s status as the sole
operating nuclear plant in the state itself indicates that the lease
replacement will have a significant environmental effect.
However, appellant acknowledges that the plant has been the
sole operating plant since June 2013; the lease replacement will
not change that circumstance. The plant’s status thus was part
of the existing conditions at the time of the Commission’s 2016
decision.
j. Criminal Conviction of PG&E
Appellant asserts that PG&E was prosecuted for and
convicted of “safety-related and agency obstruction felony counts
related to its natural gas business.” Pointing to a federal court
case that does not appear to have been part of the administrative
record, appellant argues that the convictions demonstrate
PG&E’s “careless disregard for public health and well-being” and
“support[ ] a fair argument of skepticism that PG&E will safely
manage Diablo without the guidance provided by CEQA review.”
Appellant has not linked this ad hominem, extra-record
attack on PG&E to the lease replacement. Nor does it
demonstrate that the convictions may have any effect on the
environment surrounding the plant. No fair argument can be
made on this point.
VI. Public Trust Doctrine
In addition to its CEQA challenge, appellant contends the
Commission violated the public trust doctrine when it approved
the lease replacement. It contends that the Commission erred
“because an improper ‘baseline’ was applied, [and] the staff never
performed the ‘factual evaluation’ that was necessary to make a
decision on public trust.” We disagree.

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 The public trust doctrine has been part of California law
since the state’s admission to the Union in 1850. (Citizens, supra,
202 Cal.App.4th at p. 570.) At that time, the state “acquired
ownership of all tidelands and the beds of all inland navigable
waters within its borders.” (Ibid.) The state now “owns these
tidelands and submerged lands as trustee for public purposes,
and a public easement and servitude exists over these lands for
those purposes.” (Ibid.) It has an obligation to regulate the use
of these lands for the general benefit of the community. (Ibid.)
The “‘traditional triad’ of public trust uses includes navigation,
commerce, and fishing on navigable waters,” though recreation
and environmental preservation also have been recognized as
valid public trust uses. (Id. at p. 571.) The Commission is
authorized to lease public trust lands for these limited purposes.
The staff report adopted by the Commission explicitly
analyzed the public trust doctrine. The report
noted that the State Water Resources Control Board had adopted
a new policy on once-through cooling, which would require
modifications to the plant if it were to continue operating after
2025. The report concluded that the new policy “appropriately
regulates” the impacts to marine life associated with once-
through cooling. The report also noted that the Joint Proposal
addressed “policy concerns associated with the shutdown of the
DCPP in 2025, including replacement energy . . ., workforce
transition, and community impacts.” It ultimately concluded that
the lease replacement “will not significantly interfere with the
trusts upon which [public] lands are held or substantially impair
the public rights to navigation, fisheries, or other Public Trust
needs and values at this time, at this location, and for the

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limited-term lease beginning June 28, 2016 and ending August
26, 2025.”
“There is no set ‘procedural matrix’ for determining state
compliance with the public trust doctrine.” (San Francisco
Baykeeper, Inc. v. California State Lands Commission (2015) 242
Cal.App.4th 202, 234.) Our review is limited to determining
whether the Commission’s ruling was arbitrary, capricious, or
entirely lacking in evidentiary support, or whether it failed to
follow appropriate procedures. (County of Orange v. Heim (1973)
30 Cal.App.3d 694, 718-719.) We do not reweigh the evidence,
substitute our judgment for that of the Commission, or inquire
into the soundness of the Commission’s reasoning. (Id. at p. 721.)
Applying this deferential review, we find no error by the
Commission.
Appellant claims the Commission failed to perform a
requisite “factual evaluation.” Without citing any authority, it
suggests a proper evaluation would have included “the
cumulative environmental impacts from the continued operation
of Diablo,” and would have found that the lease replacement
would interfere with the public interests in “waterborne
commerce, fisheries, recreation and most importantly, habitat
preservation.” The Commission considered the facts before it,
citing record evidence while balancing the public trust rights to
navigation, fisheries, and environmental protection against the
public need for efficient electrical production. This review was
not arbitrary, capricious, or procedurally irregular. Appellant
acknowledges that the public trust doctrine operates
independently of CEQA; it thus is unclear why the alleged
baseline error in the CEQA analysis undermines the otherwise
facially adequate public trust doctrine analysis.

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 DISPOSITION
The judgment of the trial court is affirmed. Respondents
are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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