Voices of the Wetlands v. State Water Resources Control Board

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.

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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