This case was last updated from Los Angeles County Superior Courts on 02/08/2021 at 19:28:28 (UTC).

CITY OF REDONDO BEACH, A MUNICIPAL CORPORATION, ET AL. VS CALIFORNIA STATE WATER RESOURCES CONTROL BOARD

Case Summary

On 10/01/2020 CITY OF REDONDO BEACH, A MUNICIPAL CORPORATION filed an Other - Writ Of Mandamus lawsuit against CALIFORNIA STATE WATER RESOURCES CONTROL BOARD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER, JAMES C. CHALFANT and DAVID J. COWAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3193

  • Filing Date:

    10/01/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA JESSNER

JAMES C. CHALFANT

DAVID J. COWAN

 

Party Details

Petitioners and Cross Defendants

CITY OF HERMOSA BEACH A MUNICIPAL CORPORATION

CITY OF REDONDO BEACH A MUNICIPAL CORPORATION

Defendant

CALIFORNIA STATE WATER RESOURCES CONTROL BOARD

Interested Parties and Cross Plaintiffs

1112 INVESTMENT COMPANY LLC

SLH FUND LLC

DROMY DAVID

9300 WILSHIRE FEE LLC

5TH STREET INVESTMENT COMPANY LLC

BH KARKA LLC

OUTDOOR BILLBOARD COMPANY

505 INVESTMENT COMPANY LLC

ED FLORES LLC

GENON CALIFORNIA SOUTH GP LLP

ALAMITOS LLC

SOUTHLAND ENERGY HOLDINGS II LLC

AES REDONDO BEACH LLC

THE AES CORPORATION WHICH WILL DO BUSINESS IN CALIFORNIA AS THE DELAWARE AES CORPORATION

NEW COMMUNE DTLA LLC

AES SOUTHLAND ENERGY LLC

PUSTILNIKOV LEONID

17 More Parties Available

Attorney/Law Firm Details

Petitioner Attorney

BOND LISA

Interested Party and Cross Plaintiff Attorney

DENNINGTON DOUGLAS

Cross Defendant Attorney

GIOVINCO GINETTA LORRAINE

 

Court Documents

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO EXTEND DEADLINE FOR PREPARATION AND CERTIFICATION OF ADMINISTRATIVE RECORD; [PROPOSED] ORDER

12/23/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO EXTEND DEADLINE FOR PREPARATION AND CERTIFICATION OF ADMINISTRATIVE RECORD; [PROPOSED] ORDER

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: RELATED CASES WITH 20STCP03192)

1/7/2021: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: RELATED CASES WITH 20STCP03192)

Order - ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION

12/10/2020: Order - ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION

Summons - SUMMONS ON CROSS COMPLAINT

12/4/2020: Summons - SUMMONS ON CROSS COMPLAINT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PRELIMINARY INJUNCTION)

12/9/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PRELIMINARY INJUNCTION)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER-HEARING ON MOTION FOR PRELIMINARY ...) OF 12/10/2020, ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION

12/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER-HEARING ON MOTION FOR PRELIMINARY ...) OF 12/10/2020, ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER-HEARING ON MOTION FOR PRELIMINARY ...)

12/10/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER-HEARING ON MOTION FOR PRELIMINARY ...)

Reply - REPLY OF PETITIONERS CITY OF REDONDO BEACH AND CITY OF HERMOSA BEACH IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

12/4/2020: Reply - REPLY OF PETITIONERS CITY OF REDONDO BEACH AND CITY OF HERMOSA BEACH IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Objection - OBJECTION EVIDENTIARY OBJECTIONS OF PETITIONERS CITY OF REDONDO BEACH TO DECLARATIONS OF ERIC PENDERGRAFT AND MARK MILLER FILED IN SUPPORT OF OPPOSITION TO PETITIONERS' MOTION FOR PRELIMIN

12/4/2020: Objection - OBJECTION EVIDENTIARY OBJECTIONS OF PETITIONERS CITY OF REDONDO BEACH TO DECLARATIONS OF ERIC PENDERGRAFT AND MARK MILLER FILED IN SUPPORT OF OPPOSITION TO PETITIONERS' MOTION FOR PRELIMIN

Request for Judicial Notice

12/4/2020: Request for Judicial Notice

Proof of Service (not Summons and Complaint)

11/30/2020: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION GENONS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION BY THE CITY OF REDONDO BEACH AND CITY OF HERMOSA BEACH

11/30/2020: Opposition - OPPOSITION GENONS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION BY THE CITY OF REDONDO BEACH AND CITY OF HERMOSA BEACH

Declaration - DECLARATION DECLARATION OF THOMAS DI CIOLLI IN SUPPORT OF GENONS OPPOSITION TO PETITIONERS MOTION FOR PRELIMINARY INJUNCTION

11/30/2020: Declaration - DECLARATION DECLARATION OF THOMAS DI CIOLLI IN SUPPORT OF GENONS OPPOSITION TO PETITIONERS MOTION FOR PRELIMINARY INJUNCTION

Request for Judicial Notice

11/30/2020: Request for Judicial Notice

Request for Judicial Notice

11/30/2020: Request for Judicial Notice

Opposition - OPPOSITION OPPOSITION TO PETITIONERS' MOTION FOR PRELIMINARY INJUNCTION

11/30/2020: Opposition - OPPOSITION OPPOSITION TO PETITIONERS' MOTION FOR PRELIMINARY INJUNCTION

Opposition - OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

11/30/2020: Opposition - OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Request for Judicial Notice

11/30/2020: Request for Judicial Notice

40 More Documents Available

 

Docket Entries

  • 04/27/2021
  • Hearing04/27/2021 at 09:30 AM in Department 85 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 01/13/2021
  • Docketat 09:30 AM in Department 86; Trial Setting Conference - Not Held - Vacated by Court

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  • 01/07/2021
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Status Conference (ReRelated Cases with 20STCP03192) - Held

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  • 01/07/2021
  • DocketMinute Order ( (Status Conference Re: Related Cases with 20STCP03192)); Filed by Clerk

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  • 12/23/2020
  • DocketStipulation and Order (Stipulation to Extend Deadline for Preparation and Certification of Administrative Record; [Proposed] Order); Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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  • 12/10/2020
  • Docketat 10:00 AM in Department 86; Ruling on Submitted Matter

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  • 12/10/2020
  • DocketOrder (Denying Motion For A Preliminary Injunction); Filed by Clerk

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  • 12/10/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter-Hearing on Motion for Preliminary ...) of 12/10/2020, ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION); Filed by Clerk

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  • 12/10/2020
  • DocketMinute Order ( (Ruling on Submitted Matter-Hearing on Motion for Preliminary ...)); Filed by Clerk

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  • 12/09/2020
  • Docketat 09:30 AM in Department 86; Hearing on Motion for Preliminary Injunction - Held - Taken under Submission

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39 More Docket Entries
  • 10/09/2020
  • DocketNotice (of Case Assignment); Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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  • 10/07/2020
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 10/07/2020
  • DocketSummons (on Petition); Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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  • 10/06/2020
  • Docketat 11:45 AM in Department 1, David J. Cowan, Presiding; Court Order

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  • 10/06/2020
  • DocketMinute Order ( (Court Order Re CEQA Assignment)); Filed by Clerk

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  • 10/06/2020
  • DocketCertificate of Mailing for ((Court Order Re CEQA Assignment) of 10/06/2020); Filed by Clerk

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  • 10/01/2020
  • DocketPetition for Writ of Mandate; Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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  • 10/01/2020
  • DocketNotice (of Petitioners' Election to Prepare Administrative Record/Record of Proceedings); Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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  • 10/01/2020
  • DocketCivil Case Cover Sheet; Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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  • 10/01/2020
  • DocketCivil Case Cover Sheet; Filed by City of Redondo Beach, a municipal corporation (Petitioner); City of Hermosa Beach, a municipal corporation (Petitioner)

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Tentative Rulings

Case Number: *******3193    Hearing Date: December 09, 2020    Dept: 86

CITY OF REDONDO BEACH v. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD

Case Number: *******3193

Hearing Date: December 9, 2020

[Tentative] ORDER DENYING MOTION FOR A PRELIMINARY INJUNCTION


In 2010, Respondent, California State Water Resources Control Board (the Board), adopted a Statewide Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling (OTC Policy). The OTC Policy required 19 power plants utilizing a once-through cooling (OTC) method to comply with specific technology-based standards in order to avoid significant impacts on the environment. The Board’s OTC Policy required several of the OTC facilities, including the Redondo Beach Generating Station (Redondo Beach Station), to comply with its standards by December 31, 2020.

On September 1, 2020, the Board approved a Final Amendment to the OTC Policy (the Amendment) extending the December 31, 2020 compliance date of the OTC Policy by one year for the Redondo Beach Station, and three years for the OTC facilities in Alamitos, Huntington Beach, and Ormond Beach.

Thereafter, Petitioners, City of Redondo Beach and City of Hermosa Beach (collectively, the Cities) filed a petition for a writ of mandamus alleging the Board failed to comply with the California Environmental Quality Act (CEQA) (Pub. Res. Code ; 21000 et seq.) when it approved the Amendment.

The Cities now move for a preliminary injunction enjoining the Board from (1) implementing, enforcing, or otherwise taking any action in reliance on the Amendment, and (2) taking any action in reliance on its Resolution No. 2020-0029, which approved the Amendment. Alternatively, the Cities seek to enjoin the Board from taking any action in reliance on the Board’s approval of an extension to the compliance date for the Redondo Beach Station as set forth in the Amendment.

The Board opposes the motion.

Additionally, Real Parties in Interest, AES Southland Energy, LLC, AES Southland Energy Holdings II, LLC, AES Redondo Beach, LLC, AES Huntington Beach, LLC, AES Alamitos, LLC, and The AES Corporation (collectively, AES) and Real Parties in Interest SLH Fund, LLC, BH Karka, LLC, David Dromy, 9300 Wilshire, LLC, 1112 Investment Company, LLC, Ed Flores, LLC, 9300 Wilshire Fee, LLC, 1650 Veteran, LLC, Outdoor Billboard Company, LLC, 5th Street Investment Company, LLC, 505 Investment Company, LLC, Peak Alcott, LLC, and New Commune DTLA, LLC jointly oppose the motion. Real Party in Interest, GenOn California South GP, LLC (GenOn), separately opposes the motion.[1]

The request for a preliminary injunction is DENIED.

Petitioners’ Evidentiary Objections:

Pedergraft Declaration: Both objections are sustained.

Miller Declaration: Objections 1, 5, 6 and 8 are sustained. Objections 2, 4 and 7 are overruled. Objection 3 is sustained in part as to “Because the CPUC . . . the next several years.”

Unopposed requests for judicial notice (RJN): All RJNs are granted.

LEGAL STANDARD

The standards governing a preliminary injunction are well known. “[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Ibid.)

As the parties recognize, “Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the ... showing on one, the less must be shown on the other to support an injunction.” (Ibid. [quoting Butt v. State of California, (1992) 4 Cal.4th 668, 678].) The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) A plaintiff seeking injunctive relief must also show the absence of adequate damages remedy at law. (Code Civ. Proc. ; 526, subd. (a)(4).)

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc. ; 529, subd. (a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n. (1992) 11 Cal. App. 4th 916, 920.)

ANALYSIS

Likelihood of Success on the Merits:

The Cities argue they are likely to prevail on the merits of their claim against the Board. They contend the Board failed to comply with CEQA’s requirements when it adopted the resolution and approved the Amendment.

By way of background, the Board relied on a substitute environmental document (SED) when it approved the OTC Policy (Final SED).[2] (Pet. RJN, Ex. 3, Reso. ; 29.) The Board’s OTC Policy (pre-Amendment) required several of the OTC facilities, including the Redondo Beach Station, to comply with its standards by December 31, 2020. (Pet.’s RJN Ex. 1, p. 14.) On September 1, 2020, after a public hearing, the Board adopted Resolution No. 2020-0029 and approved the Amendment. (Pet. RJN, Ex. 3 [Res. pp. 8-9].)

While the Board maintains the Amendment does not constitute a “project” under CEQA, the Board nonetheless relied on an addendum to the Final SED as the necessary environmental review for the Amendment. (Pet.’s RJN Ex. 3 [Reso. ¶ 30, staff report pp. 28, 28-30][“none of the conditions requiring preparation of a subsequent environmental report have occurred”].) The Board’s staff report prepared for the September 1, 2020 public hearing contained the addendum. (Pet.’s RJN, Ex. 3 [staff report pp. 28-30].) The staff report concluded the Amendment would not “result in any new significant environmental impacts or a substantial increase in the severity of previously identified significant effects beyond what was identified in the 2010 Final SED . . . .” (Pet.’s RJN Ex. 3 [staff report p. 30].)

The Cities contend the question before the court to be considered for the likelihood of success on the merits is whether the Board failed to disclose and analyze the environmental impacts resulting from the Amendment. The Cities contend, “In approving the Amendment, the Board failed to disclose or analyze significant and irreversible environmental impacts that would result from this unnecessary extension, and thus failed to comply with [CEQA].” (Motion 8:22-24.) The Cities argue the Board improperly relied an insufficient addendum to the Final SED to approve the Amendment.

Here, the court must decide whether the Board’s action in adopting the resolution and approving the Amendment required a subsequent or supplemental SED. That is, did the Board violate CEQA’s requirements when it did not prepare a subsequent or supplemental SED and instead relied only on an addendum to the Final SED when it adopted its resolution and approved the Amendment?[3]

Whether an agency is required to prepare a subsequent or supplemental SED for a project is addressed in Public Resources Code section 21166:

“When an environmental impact report [(EIR)] [or as here an SED] has been prepared for a project . . ., no subsequent or supplemental [EIR] shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the [EIR]. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR]. [¶] (c) New information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available.” (Pub. Res. Code, ; 21166; see also Guidelines ; 15162, subd. (a).)

The CEQA Guidelines[4] at section 15162 addresses subsequent environmental documents. It provides in part:

(a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following:

  1. Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;

  2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or

  3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:

(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;

(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;

(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or

(D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.

The CEQA Guidelines at section 15163 addresses supplemental environmental documents. It provides at subdivision (a):

  1. The lead or responsible agency may choose to prepare a supplement to an EIR rather than a subsequent EIR if:

(1) Any of the conditions described in Section 15162 would require the preparation of a subsequent EIR, and

(2) Only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.

The CEQA Guidelines at section 15164 addresses addendums to an environmental document. The section provides:

(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.

(b) An addendum to an adopted negative declaration may be prepared if only minor technical changes or additions are necessary or none of the conditions described in Section 15162 calling for the preparation of a subsequent EIR or negative declaration have occurred.

(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR or adopted negative declaration.

(d) The decision-making body shall consider the addendum with the final EIR or adopted negative declaration prior to making a decision on the project.

(e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162 should be included in an addendum to an EIR, the lead agency's required findings on the project, or elsewhere in the record. The explanation must be supported by substantial evidence.

Accordingly, as the Board did not require a subsequent or supplemental SED to adopt the resolution and approve the Amendment, the Board did not find substantial changes (1) were proposed for the project or (2) occurred with respect to the circumstances under which the project was undertaken which will result in “new significant environmental impacts.” (Guidelines ; 15162, subd. (a)(2).) The Board also did not find there was new information of substantial importance “which was not known and could not have been known” at the time of the Final SED that show “the project will have one or more significant effects . . . .” (Guidelines ; 15162, subd. (a)(3).) Accordingly, under such circumstances, the Board determined it could rely on an addendum to consider the Amendment. (Guidelines ; 15164.)

“[W]hether an initial environmental document remains relevant despite changed plans or circumstances—like the question whether an initial environmental document requires major revisions due to changed plans or circumstances—is a predominantly factual question. It is thus a question for the agency to answer in the first instance, drawing on its particular expertise. [Citation.] A court's task on review is then to decide whether the agency's determination is supported by substantial evidence; the court's job ‘ “ ‘is not to weigh conflicting evidence and determine who has the better argument.’ ” ’ ” (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 952-953.) Accordingly, this court’s standard of review provides deference to a public agency's determination whether further CEQA review is required and “ ‘resolve[s] reasonable doubts in favor of the administrative decision’ ” (Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1058.)

“A party challenging an agency’s decision under [Public Resources Code] section 21166 has the burden to demonstrate that the agency’s decision is not supported by substantial evidence and is therefore improper. [Citation.]” (Com. For Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1247.)

Given the court’s focus for these proceedings, the Cities argue the addendum “does not address any of the conditions that might require the preparation of a subsequent or supplemental SED, nor does the Addendum account for significantly changed conditions under which the . . . Amendment would occur, including the discovery of wetlands and related wildlife on the property and new residential uses, a hotel, and a heavily used bike track near the power plant.” (Motion 19:27-20:3 [citing Webb Decl., ¶ 2, Ex. 1, p. 25].)

The Cities contend (1) wetlands, (2) air quality and (3) biological resources are conditions “that might require the preparation of a subsequent or supplemental SED . . . .” (Motion 19:27-28.) “These conditions, as well as the newly available information that was not known and could not have been known at the time of the . . . Final SED, demonstrate the existence of new and additional impacts of greater severity.” (Motion 20:3-5.) Thus, while it is not entirely clear, it appears the Cities’ position concerning a subsequent or supplemental SED is largely grounded in Guidelines section 15162, subdivision (a)(3)(A).

The Board asserts the Amendment does not meet the conditions for a subsequent or supplemental SED as set forth in Guidelines sections 15162 and 15163. The Board contends its decision to issue an addendum rather than a subsequent or supplemental SED is supported by substantial evidence. In particular, “given the [Final] SED assumed the continued operation of the OTC facilities in its baseline environmental setting, and the impacts from continued operation are therefore already incorporated into the [Final] SED analysis,” the Board correctly determined “the Amendment and the deadline extensions it provides did not involve new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” (Pet.’s RJN Ex. 5, p. 52.) Based on the foregoing, the Board argues the Cities have not demonstrated it was required to undertake subsequent environmental review and could rely on the addendum to adopt the Amendment.

The court agrees with the Board. In considering whether the Cities have a likelihood of success on their underlying claims, the court finds the Cities have not met their burden of demonstrating that the Board’s decision to rely on an addendum—as opposed to a subsequent or supplemental SED—in adopting the resolution and approving the Amendment was not supported by substantial evidence.

  1. Wetlands

With respect to the environmental impact to the wetlands, the Cities argue the Addendum specifically fails to address the “the changed circumstances and environmental impacts due to the illegal degradation of at least 5.93 acres of wetlands on the site.” (Motion 20:10-12.) To place the Cities’ argument in the context of the dispute before the court, the Cities appear to contend there is “[n]ew information of substantial importance . . . the project will have one or more significant effects not discussed in the previous” environmental document. (Guidelines ; 15162, subd. (a)(3).) Alternatively, perhaps the Cities argue “substantial changes [have] occur[red] with respect to the circumstances under which the project is undertaken . . . .” (Id. at subd. (a)(2.)

On May 26, 2020, the California Coastal Commission (CCC) issued a notice of violation to AES for “[u]npermitted development including but not limited to the unpermitted installation and operation of water pumps for the purpose of groundwater dewatering affecting approximately 5.93 acres of wetlands at the former tank portion of the site; [and] unpermitted installation and operation of water pumps in the vault area.” (Pet.’s RJN Ex. 6, pp. 1-2.) The Cities note, as these alleged violations occurred after the Board issued the Final SED for the OTC Policy, these violations were not (and could not have been)[5] considered in the Final SED. Moreover, the Cities argue the alleged violations were unaddressed in the addendum. The Cities contend the CCC’s notice of violation issued by the CCC required the Board to perform some environmental review as the Board had evidence since the Final SED there had been a change in adverse impacts.[6]

As a preliminary matter, it is not clear what evidence within the CCC’s notice of violation the Cities rely upon to find any discussion in the record concerning the “magnitude of these impacts” caused by dewatering. (Motion 20:13-14.) The CCC’s notice of violation does not indicate AES adversely affected the wetlands. The CCC couched its notice of violation as “adversely affecting, or having the potential to adversely affect . . . .” (Pet.’s RJN, Ex. 6 p. 1 [emphasis added].)

The Cities rely on a “violation description” or summary at the beginning of the CCC’s notice of violation presumably to demonstrate “new significant environmental effects.”[7] (Guidelines ; 15162, subd. (a)(2).) The court is not persuaded given that the actual explanation of the violation—in the body of the notice—the CCC found an adverse environmental effect. Neither the summary nor the narrative supports such a finding.

Moreover, the Amendment allows the Redondo Beach Station to continue operating for a one-year period beginning January 1, 2020. The project—a continuation of operation—where AES “stopped using the groundwater pumping system and installed portable sump pumps in utility vaults” (Pet.’s RJN, Ex. 3 p. 20) will not involve “new significant environmental effects” (Guidelines ; 15162, subd. (a)(2)) or demonstrate one or more significant effects . . . .” (Guidelines ; 15162, subd. (a)(3)(A).) Given that AES has discontinued operation of the groundpumping water system, there can be no environmental effects to wetlands from groundpumping water based on the Redondo Beach Station operating for an additional year.

Accordingly, the Cities failed to meet their burden the Amendment will result in new significant environmental effects or demonstrate significant effects previously not discussed in the Final SED.

  1. Air Quality

The Cities argue the Board was required to conduct additional environmental study based on air quality impacts. The Cities assert the Board could not proceed by way of addendum; the Board required a subsequent or supplemental SED to adopt the resolution and approve the Amendment.

At the time the Board issued the Final SED with respect to the OTC Policy, the Board found

it “could not accurately assess air quality impacts related to compliance with the OTC Policy because it was difficult to estimate the method of compliance owners and operators would select for each power plant.” (Pet.’s RJN Ex. 3 [Staff Report p. 21].) The Cities contend, while air quality may have previously been unclear, it is not now. According to the Cities, the Board currently has available air quality data for more than 10 years to consider—the Cities do not, however, provide any specific information about what that air quality data shows.

The Cities suggest the Board’s failure is particularly unwarranted given that its staff report reveals inefficiencies and air quality impacts from certain OTC facilities, such as Redondo Beach Station. (See e.g., Pet.’s RJN Ex. 3 [Staff Report p. 22]. [“The latest breakdown and/or deviation at Redondo Beach causing excess emissions was the breakdown of a fan feeding oxygen to Unit No. 6 resulting in visible emissions (black smoke) that occurred on July 25, 2019[.]”]) The Cities also note changed circumstances in the form of new residential uses east of the Redondo Beach Station and a new hotel and recreational facility near the power plant. The Cities reveal a 2015 study noted an estimated 21,632 people living within one mile of the Redondo Beach Station. (Webb Decl., ¶ 2, p. 13.)

AES and GenOn persuasively argue the Cities “provide no evidence that this unidentified air quality data meets any of the conditions listed in [Guidelines] section 15162 that would require a new SED.” (GenOn Opposition 19:10-12; AES Opposition 8:21-22. [“Petitioners do not, and cannot, provide any support for their assertion that extending the compliance dates for the OTC facilities ‘will result in severe adverse impacts to air quality.’ ”])

Moreover, the OTC Policy requires all facilities subject to it “to comply with applicable regulatory requirements that are designed to minimize environmental impacts and protect human health, including all state and local permits.” (AES’s RJN, Ex. 3, p. 8.) The Amendment continues the requirement. Thus, “these OTC facilities would continue to be regulated by applicable air and water quality permits, therefore continuing to comply with requirements imposed in order to minimize environmental impacts and be protective of human health.” (AES’s RJN, Ex. 3, p. 8.)

Again, based on the Cities’ reliance on mere argument and their failure to demonstrate a lack of substantial evidence supporting the Board’s position that a subsequent or supplemental SED was not required under Guidelines section 15162, the Cities have not met their burden.

  1. Biological Resources

The Cities argue the Board was required to conduct additional environmental study based on impacts to biological resources prior to adopted the resolution and approving the Amendment.

As noted in the Final SED, “[o]f the four power plants, Redondo Beach is the least efficient, requiring more OTC intake water to produce a megawatt-hour than the other power plants, and resulting in potential impacts to marine life (Figure 11 in the 2010 Final SED).” (Pet.’s RJN Ex. 3 [staff report p. 16].)

The harm to marine life, as argued by Petitioners, arises here as result of how OTC facilities operate, wherein "larger aquatic organisms, such as fish and mammals, are trapped against a facility’s intake screens (impingement) and . . . smaller marine life, such as larvae and eggs, are killed by being drawn through the cooling system and exposed to high pressures and temperatures (entrainment).” (Pet.’s RJN Ex. 3 [staff report p. 5].) Further, even the marine animals that escape death, may suffer injury that make then more susceptible to death or predation. (Pet.’s RJN Ex. 2, p. 29.) Thus, the continued operation of the OTC facilities “has the potential to directly cause mortality or ‘takes’ of endangered species.” (Pet.’s RJN Ex. 2, p. 36.)

The Board argues the Cities fail to meet their burden on this issue. It is not enough under Public Resources Code section 21166 and Guidelines section 15162 to argue “the Addendum contains no analysis of the impacts to marine life from continuing to operate well beyond the current compliance deadline.” (Motion 22:20-21.) The Cities have the burden of demonstrating “new significant environmental effects” (Guidelines ; 15162, subd. (a)(2) or “new information of substantial importance which was not known . . . at the time the previous [environmental review document] was certified . . ., shows . . . the project will have one or more significant effects not discussed in the previous [environmental review document].” (Guidelines ; 15162, subd. (a)(3)(A).)

Moreover, the Board notes any impact to marine life would be minimized as result of the mitigation measure of operating the OTC plants as “peakers” and are therefore expected to operate at or below five percent capacity. The OTC facilities are also required to continue to implement mitigation measures to achieve compliance, which would offset impacts during the extension period. (Pet.’s RJN Ex. 3 [Staff Report pp. 4, 18].)

The Cities have failed to carry their burden of showing the Board lacked substantial evidence in proceeding by way of addendum and was instead required to prepare a subsequent or supplemental SED to adopt the resolution and approve the Amendment.

  1. Additional Opposition Arguments

AES Opposition

AES argues to determine whether there will be adverse significant impacts and “[t]o decide whether a given project's environmental effects are likely to be significant, the agency must use some measure of the environment's state absent the project, a measure sometimes referred to as the ‘baseline’ for environmental analysis.” (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315.) Where the analysis relates to an existing project, the baseline of the existing project baseline controls; for example, when an agency merely considers whether to renew an existing permit, the baseline is the existing conditions. (Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 561.)

AES argues because the OTC Policy has already addressed the existing baseline “there is no possibility that continued operations pursuant to the Amendment will result in a significant, adverse change to the baseline environmental conditions.” (AES Opposition 5:13-14.)

Further, AES argues the Amendment is not a “project” but an administrative change to the Project extending the date.

The court finds these arguments persuasive where the Cities have failed to put forth evidence of substantial changes that would undermine the OTC Policy’ baseline analysis.

GenOn Opposition

GenOn argues the Cities lack standing to challenge the Ormond Beach Station because they only allege harm from the operation of the Redondo Beach Station. (See e.g., Pet., ¶¶ 3-4.)

Further, GenOn—like AES—contends the Amendment is not a “project” because under the “baseline principle . . . a proposal to continue existing operations without change would generally have no cognizable impact under CEQA.” (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 872-873.) According to GenOn, the Cities have not demonstrated any subsequent environmental review beyond the Final SED was required because the Amendment is merely part of the same project as the OTC Policy, and only seeks to amend the compliance deadline. The Cities have not demonstrated any “significant changed conditions” or newly available information.

The Cities’ Overall Showing

The Cities focus only on the Redondo Beach Station. While the court has found that the evidence they provide overall to meet their burden on this motion is insufficient, the court further notes that they provide nothing specifically addressing the OTC facilities at Alamitos, Huntington Beach and Ormond Beach. Thus, as to those facilities, the Cities have not demonstrated a likelihood of success on the merits.

As to the Redondo Beach Station, the court also finds the Cities have not demonstrated a likelihood of success on the merits. They have failed to demonstrate in any measure that under the facts, Guidelines section 15162 required the Board to undertake additional environmental review prior to adopting the resolution and approving the Amendment. The Cities do not tie any evidence related to wetlands, air quality and/or biological resources to applicable law.

Balancing the Harms:

The second part of the preliminary injunction analysis requires the court to evaluate the harm the plaintiff is likely to sustain if the preliminary injunction is denied compared to the harm the defendant is likely to suffer if the injunction is issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) “However, ‘[a] trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.’ ” (Law School Admission Council, Inc. v. State of California (2014) 222 Cal.App.4th 1265, 1280 [quoting Butt v. State of California (1992) 4 Cal.4th at 678].)

As the Cities have not demonstrated at this stage of the proceedings a possibility of prevailing on the merits of their claim, the court need not address a balance of harms. Nonetheless, for completeness, the court considers the balance of harms.

The Cities argue the denial of a preliminary injunction will result in irreparable harm to marine life, air quality, water quality, and the environmentally sensitive wetlands.

First, with respect to marine life, the Cities explain “[t]he State’s active coastal power plants that use OTC maintain the capacity to withdraw more than 15 billion gallons per day (BGD) of cooling water. Over the course of a year, billions of eggs and larvae are effectively removed from coastal waters, while millions of adult fish are lost due to impingement.” (Pet.’s RJN Ex. 2, p. 1.)[8] As result of how the OTC facilities operation, the Cities argue "larger aquatic organisms, such as fish and mammals, are trapped against a facility’s intake screens (impingement) and . . . smaller marine life, such as larvae and eggs, are killed by being drawn through the cooling system and exposed to high pressures and temperatures (entrainment).” (Pet.’s RJN Ex. 3 [staff report p. 5].) Even the marine animals that escape death, according to the Cities, may suffer injury that make then more susceptible to death or predation. (Pet.’s RJN Ex. 2, p. 29.) Thus, the continued operation of these facilities “has the potential to directly cause mortality or ‘takes’ of endangered species.” (Pet.’s RJN Ex. 2, p. 36.) Therefore, the continued operation of the OTC facilities will result in irreparable harm to marine life.

Second, the continued operation of these faculties will continue air pollutant emissions. Specifically, the Cities assert all the “[f]ossil-fueled facilities . . . emit air pollutants when operating.” (Pet.’s RJN Ex. 2, pp. 43-44; Webb Decl., ¶ 2, Ex. 1, p. 11-12. [“All OTC facilities emit greenhouse gases and air pollution as a by-product of burning fossil fuels, but not all facilities emit these poisonous gases at the same rate . . . [I]n the year 2006, despite producing less than half the energy output of the Alamitos and Huntington Beach facilities, AES Redondo Beach still emitted more nitrogen oxide, carbon monoxide, and fine particulate matter than each of those facilities.”]) Thus, the Cities argue air quality impacts to the local population–which include 21,000 people living within a one-mile radius of the Redondo Beach Station—are imminent if the OTC facilities are allowed to continue to operate. (Webb Decl., ¶ 2, Ex. 1, pp. 13-14.)

With respect to the water quality impacts, according to the Cities, the OTC facilities will be permitted to continue discharging in excess of the approved maximum effluent limitations, further degrading water quality in the region. (Pet.’s RJN Ex. 3 [staff report pp. 22-23]. [“An amendment of the OTC Policy with compliance date extensions will necessitate changes to associated NPDES [National Pollutant Discharge Elimination System] permits, time schedule orders (TSO), total maximum daily loads, if applicable, and air permits.”]) The Cities also report a “history” of violations of the NPDES permit. (Pet.’s Reply RJN Ex. 1-3.)

Finally, the Cities contend the Redondo Beach Station installed and operate water pumps that “adversely affect[ ] . . . up to approximately 5.93 acres of area considered to be wetlands under the Coastal Act.” (Pet.’s RJN, Ex. 6, p. 2].) As noted earlier, on May 26, 2020, the CCC issued AES Redondo Beach LLC, as operator, a notice of violation for its installation and operation of water pumps for the purpose of dewatering groundwater—a type of “development” under the Coastal Act—without the required coastal development permit. (Pet.’s RJN, Ex. 6, pp. 5-6].) In order to comply with the OTC Policy, the Redondo Beach Station planned to cease operations and cease the degradation of the environmental sensitive wetlands, but the Amendment (and a denial of the preliminary injunction) would allow this degradation to continue.

In anticipation of the Board’s argument, the Cities also argue the Board’s admission that the OTC facilities will be used as “peaker” facilitates actually assists the Cities’ argument for a preliminary injunction. The Cities contend because the “peaker” periods generally occur in the hot summer months. Thus, any harm to the public from the issuance of a preliminary injunction will be limited because the need for the extra power will not be required until months from now when it is possible this litigation may have been resolved.[9]

AES argues the preliminary injunction could result in a “complete shutdown” of its OTC facilities “which will remove critical generation capacity necessary to support grid reliability in summer 2021 and beyond.” (Miller Decl., ¶ 13; see also Millar Decl., ¶ 6.) As a secondary effect, AES argues the OTC facilities tend to cost less than new resources and “[a]n injunction will remove these lower cost [resource adequacy] resources and decrease the overall availability of generating resources in the market, putting upward pressure on wholesale prices paid by [load-servicing entities] and higher retail rates paid by customers.” (Miller Decl., ¶ 23.)

The Board’s evidence concerning an operational shortfall in the state’s electrical supply in 2021 is similar. (See Millar Decl., ¶¶ 4-6.)

GenOn correctly asserts the Cities have shown no irreparable harm specifically related to the Ormond Beach Station. GenOn argues any injunction must exclude Ormond Beach Station. The court agrees.

First, GenOn points out that of the of four different plants Ormond Beach Station had the lowest criteria pollutant and carbon dioxide pollutant emissions in 2006 and the smallest population living within a one-mile radius. (Webb Decl., Ex. 1, 15, 17.)

GenOn also argues it has fully complied with the mitigation measures set forth in the OTC Policy and will continue to do so. GenOn will deposit up to $25 million from Ormond Beach Station revenues received during the 3-year extension period into a trust fund for use in demolishing and remediating the facility on a specified schedule. (Nguyen Decl., ¶¶ 2-3, Ex. A.)

GenOn reports it has entered into a California Public Utilities Commission-approved resource adequacy contract for Ormond Beach Station’s capacity with Southern California Edison, which was an essential component for that utility to meet its 2021 resource adequacy obligations. GenOn claims an injunction would disrupt the agreement and lead to disruption to California’s energy system. (Di Ciolli Decl., ¶ 6.)

Overall, the court finds the balance of harms to tip in favor of the Board, AES and GenOn.[10] The court finds disruptions to the energy grid and energy services provides the slightly greater harm. The environmental impacts have been largely addressed and considered in the earlier OTC Policy. Moreover, mitigation measures adopted by the Board appear to minimize the harms from the OTC Policy—those measures will continue under the Amendment. In contrast, projected and resulting shortfall in the state’s electrical supply if the preliminary injunction were to issue reflect new and significant dangers to the public health and safety. (Pet.’s RJN Ex. 9, p. 20.)

Based on the foregoing, the court finds the Board, AES and GenOn have demonstrated the balance of harms tips in their favor.

CONCLUSION

Based on the court’s consideration and balance of the Cities’ likelihood of success on the merits and the balance of competing harms, the Cities request for a preliminary injunction is denied.

IT IS SO ORDERED.

December 9, 2020 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court


[1] GenOn owns and operates the Ormond Beach Generating Station, a natural gas-fired steam electric power plant located on the Pacific coast in Oxnard, California. (Di Ciolli Decl., ¶ 2.) GenOn argues its differently situated than AES and, as such, has filed a separate opposition.

[2] (See Pub. Res. Code ; 21080.5.)

[3] The court recognizes the opposing parties contend the Amendment is not a project. For the analysis, the court assumes—without deciding—the Amendment is a project.

[4] The CEQA Guidelines are sections 15000 to 15387 in Title 14 of Chapter 3 of the California Code of Regulations.

[5] The Cities’ reply brief also notes the Board acknowledged the CCC did not confirm the existence of the protected wetlands at the Redondo Beach Station until 2015—five years after approval of the Final SED. (See RJN, Ex. 3 [SR p. 20].)

[6] The record notes AES disputes the CCC’s conclusions there are wetlands at the site. (Pet. RJN, Ex. 5 p. 38.)

[7] The Cities repeat the CCC summary: “[u]npermitted development including but not limited to the unpermitted installation and operation of water pumps for the purpose of groundwater dewatering affecting approximately 5.93 acres of wetlands at the former tank portion of the site; [and] unpermitted installation and operation of water pumps in the vault area.” (Motion 20:16-19.)

[8] The Cities note the Redondo Beach Station is the least efficient of the OTC facilities and requires more intake water to operate. (Pet.’s RJN Ex. 3 [SR p. 16]; Ex. 5, p. 32

[9] GenOn contends if Ormond Beach Station (and presumably other OTC facilities) are unable to operate the cooling water intake system during the winter and spring months of 2021 because of an injunction, GenOn will be unable to perform the critical system maintenance, testing and training necessary to safely and reliably resume operations during the critical summer months. (Di Ciolli Decl., ¶ 8.)

[10] Given the Cities’ weak evidentiary showing in the context of Guidelines section 15162, it would be difficult to find otherwise.



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