Opinion
B227835
08-17-2011
CITY OF OXNARD, et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent, SOUTHERN CALIFORNIA EDISON, Real Party in Interest and Respondent.
City of Oxnard, Office of the City Attorney and Alan Holmberg, City Attorney; The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour, R. Tyson Sohagi and Nicole H. Gordon for Plaintiffs and Appellants. Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, Christina Bull Arndt and Terry T. Fujimoto, Deputy Attorneys General, for Defendant and Respondent. Latham & Watkins, James L. Arnone, Duncan Joseph Moore and Damon P. Mamalkis for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS122248)
APPEAL from a judgment of the Superior Court for Los Angeles County, David P. Yaffe, Judge. Affirmed.
City of Oxnard, Office of the City Attorney and Alan Holmberg, City Attorney; The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour, R. Tyson Sohagi and Nicole H. Gordon for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, Christina Bull Arndt and Terry T. Fujimoto, Deputy Attorneys General, for Defendant and Respondent.
Latham & Watkins, James L. Arnone, Duncan Joseph Moore and Damon P. Mamalkis for Real Party in Interest and Respondent.
This case involves a proposed project to build an electrical generating facility in the coastal zone of the City of Oxnard. Real Party in Interest Southern California Edison (Edison) applied to the City for a coastal development permit for the proposed project. The City denied the application on the ground that the project was not consistent with the zoning applicable to the property, which the City contended allowed development of energy facilities only if they were coastal-dependent. Edison appealed to the California Coastal Commission (the Commission), which granted the coastal permit.
The City and senior planner Chris Williamson (collectively, the City) filed a petition for writ of mandate challenging the Commission's decision to issue the permit. Among other things, the City argued that the proposed project was inconsistent with the zoning designation for the property and a policy set forth in the city's coastal land use plan regarding availability of water and sewer services, and that the Commission failed to adequately analyze the "no-project" alternative as required by the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) before approving the proposed project. The trial court denied the City's petition. We affirm.
BACKGROUND
In August 2006, Commissioner Michael R. Peevey of the California Public Utilities Commission issued a ruling entitled "Assigned Commissioner's Ruling Addressing Electric Reliability Needs in Southern California for Summer 2007" (the Assigned Commissioner's Ruling). Commissioner Peevey explained that he found it necessary to take action because "[t]he heat storm that hit California in July 2006, and the surprising growth in electricity demand throughout the state that had become evident even before the heat storm, . . . exposed certain vulnerabilities in the electric generation and transmission infrastructure that require immediate attention to assure reliability in 2007, particularly in parts of southern California." The Commissioner noted that the peak demand during the 2006 heat wave was well above the predicted worst case scenario, and was equal to the demand forecasted not to appear until five years in the future. Although the California Independent System Operator (CAISO), which is responsible for maintaining electric system reliability, was able to maintain reliability during the heat wave, the Commissioner determined that additional steps needed to be taken immediately to assure reliability in the future.
Based upon the recommendation of CAISO, the Commissioner directed Edison "to pursue new utility-owned generation that can be online in time for summer 2007." He noted that he was taking this action out of concern that Edison's current competitive electric generation procurement process might not be completed in time for summer 2007 needs. "To avoid undue impacts" on that procurement process, the Commissioner directed Edison to develop not more than five generation units, with a total generation capacity of up to 250 megawatts, and stated that Edison's development of additional generation specified in his ruling should not cause Edison to reduce the amount of capacity it contracts for through the procurement process. He also directed that those generation units "should be black-start capable and dispatchable, and should bring collateral benefits to [Edison's] transmission and distribution system as well as the CAISO grid."
According to the Commission's staff report, "the term 'black-start' refers to the ability of a generating unit to turn on and power-up without the need for external power input, for example during a power outage in the area, and the term 'dispatchable' refers to a unit's ability to start and ramp up power output quickly, for example in response to a rapid demand increase or a sudden loss of other generation or transmission resources."
In response to the Assigned Commissioner's Ruling, Edison determined it needed to install five 50 megawatt units, known as "peakers," each of which would have an output of approximately 45 megawatts. In selecting sites for the five peakers, Edison looked for locations from which the peaker could black-start one or more major generating units, in "regions where peaking capacity would most benefit local reliability needs." Four of the selected locations were inland -- in Norwalk, Ontario, Rancho Cucamonga, and Stanton -- and the fifth was within the coastal zone in the City of Oxnard.
Edison filed permit applications and environmental studies or assessments for each of the peaker projects in late October and early November 2006. The applications for the projects at the four inland locations were approved in March or April 2007, and those peakers were installed and operating by August 2007. The City of Oxnard, however, required additional information and design changes, and ultimately denied Edison's application on July 24, 2007. The City found that the proposed project was not consistent with the City's local coastal program and coastal zoning ordinance because the peaker was not coastal-dependent -- i.e., it did not "'require[] a site on, or adjacent to, the sea to be able to function at all'" -- and therefore it could not be constructed at the proposed site, which is in the Coastal Energy Facility Sub-Zone (the EC sub-zone).
The City Planning Commission rejected the proposed project on June 28, 2007, and Edison appealed to the City Council. The City Council upheld the Planning Commission's rejection on July 24, 2007.
Edison filed an appeal with the Commission on August 9, 2007. The Commission found that the appeal raised a "substantial issue" and set the matter for a full hearing. A series of hearings were held before the Commission, and on April 9, 2009, the Commission approved the proposed project, with special conditions. The Commission subsequently approved revised findings, including findings that: (1) section 17-20 of the City's Coastal Zoning Ordinance (hereafter section 17-20), which describes the EC sub-zone designation, does not require that a proposed energy development be coastal-dependent, and therefore a non-coastal-dependent "'electrical power generating plant' [such as] the proposed [peaker] project is a conditionally permitted use of the proposed project site"; (2) the proposed project is in conformance with the City's Local Coastal Policy 42 (hereafter Policy 42), which provides that projects may be approved only when "'sufficient water and sewer services are available'"; and (3) there are no feasible alternatives that would provide the reliability benefits of the proposed project, and the "no project alternative" would not "satisfy the fundamental purpose and need for the project."
On May 22, 2009, the City filed a petition for writ of mandate challenging the Commission's approval of a coastal development permit for the proposed peaker project. The operative first amended petition, which was filed on December 21, 2009, alleged four causes of action. The first cause of action alleged that the Commission abused its discretion and erred as a matter of law by approving the coastal development permit, because the proposed project is inconsistent with the City's local coastal program, including section 17-20 and Policy 42. The second cause of action alleged the Commission violated CEQA, because the environmental report the Commission prepared failed to adequately address several issues it was required by CEQA to address, including the requirement to provide a meaningful analysis of the "no project" alternative to the proposed project. The third cause of action alleged that the Commission abused its discretion by failing to fully consider all relevant factors, including principles of environmental justice. Finally, the fourth cause of action alleged that after the Commission approved the coastal development permit, the City received new information that undermines the factual basis for that approval, and sought a writ of mandate under Code of Civil Procedure section 1094.5, subdivisions (e) and (f), directing the Commission to vacate and reconsider its approval in light of this new information.
Following a hearing on the merits, the trial court denied the petition. The court found, among other things, that section 17-20 does not limit development in the EC sub-zone to coastal-dependent energy facilities, and that, in light of substantial evidence in the administrative record that a peaker plant was necessary, the Commission properly analyzed all alternatives to the proposed project, and its approval of the proposed project was supported by substantial evidence. Although the trial court did not specifically address the Commission's finding that the proposed project was consistent with Policy 42, the court observed that the City's contention that it would not supply water to the proposed peaker plant unless Edison complied with the City's Water Use Neutrality Policy is a matter to be litigated (if necessary) between the City and Edison in a separate proceeding; it does not affect the Commission's decision.
The trial court entered judgment denying the petition, from which the City appeals.
DISCUSSION
On appeal, the City argues that the Commission's interpretations of section 17-20 and of Policy 42 are erroneous, and therefore the Commission erred in finding that the proposed project was consistent with the City's coastal zoning ordinance and land use plan. In addition, the City contends that the Commission failed to comply with CEQA because it failed to properly analyze the "no project" alternative. We disagree. A. Standard of Review
"On appeal from the denial of a petition for writ of mandate, our role is identical to that of the trial court. . . . That is, both the trial and appellate courts must determine whether the record is free from legal error. Thus, the trial court's conclusions and disposition of the issues are not conclusive on the court of appeal." (Alberstone v. California Coastal Com. (2008) 169 Cal.App.4th 859, 863.)
To the extent the City's challenge involves the interpretation of provisions of the City's local coastal program, which is a question of law, we engage in de novo review. (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 962, 965 (Reddell).) But because the Commission is the statutorily designated state coastal zone planning and management agency for any and all purposes (Pub. Resources Code, § 30330), we must give deference to its interpretation of the local coastal program unless that interpretation "'flies in the face of the clear language and purpose of the interpreted provision[s].'" (Divers' Environmental Conservation Organization v. State Water Resources Control Bd. (2006) 145 Cal.App.4th 246, 252; accord, Reddell, supra, 180 Cal.App.4th at p. 968.)
To the extent the City challenges the Commission's compliance with CEQA, we "must determine whether the [Commission] abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence." (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390; see also Pub. Resources Code, § 21168.5.) B. Section 17-20
The first issue raised by the City on appeal involves the interpretation of the zoning ordinance applicable to the site for the proposed peaker project. That site is located within an area identified in the City's local coastal program as the "EC, Coastal Energy Facilities, Sub-Zone."
The purpose of, and permitted uses within, the EC sub-zone is set forth in section 17-20. Subdivision (A) of the ordinance provides that the purpose of the sub-zone "is to provide areas that allow for siting, construction, modification and maintenance of power generating facilities and electrical substations consistent with Policies 51, 52, 54, 55 and 56 of the Oxnard coastal land use plan." That subdivision also provides that, "[t]o assure consistency with the Oxnard coastal land use plan," certain coastal act provisions and land use plan policies shall apply, including: "(1) Coastal dependent energy facilities shall be encouraged to locate or expand within existing sites and shall be permitted reasonable long-term growth, where consistent with this article. (Coastal Act [Pub. Resources Code], Section 30260)." Subdivision (B) of the zoning ordinance lists the conditionally permitted uses within the EC sub-zone, including: "(2) Electrical power generating plant and accessory uses normally associated with said power generating facility."
According to the City, it was the City's intent at the time it enacted section 17-20 that only those energy facilities that were coastal-dependent (as defined in the Coastal Act, Pub. Resources Code, § 30101) would be permitted. Therefore, the City denied Edison's application for a coastal development permit for the proposed peaker project (which Edison concedes is not coastal-dependent) on the ground that the proposed peaker project is not consistent with section 17-20.
The Commission, however, found that the section 17-20 does not limit development of electrical power generating plants within the EC sub-zone to plants that are coastal-dependent. The Commission observed that only one subsection of the ordinance "refers to 'coastal-dependent' facilities, and it only 'encourages' such facilities to locate within 'existing sites.' The other subsections apply generally to 'energy related developments,' not exclusively to 'coastal-dependent' developments. Additionally, these subsections are all subject to the overarching provision of Section 17-20(A), which states that this zoning designation allows 'power generating facilities and electrical substations' and is therefore not limited to 'coastal-dependent' facilities."
On appeal, the City argues that this court should defer to the City's interpretation of section 17-20, rather than the Commission's, because a municipality's interpretation of its own zoning regulations generally is entitled to great weight. (Citing Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173 and Flavell v. City of Albany (1993) 19 Cal.App.4th 1846, 1851.) What the City's argument ignores, however, is that local coastal programs, although issued by local government, "are not solely a matter of local law, but embody state policy." (Charles A. Pratt Construction Co., Inc. v. California Coastal Com. (2008) 162 Cal.App.4th 1068, 1075 (Pratt).) Thus, a local government must submit its local coastal program, as well as zoning ordinances and other implementing actions, to the Commission for approval. (Pub. Resources Code, §§ 30512, 30513.) Once the Commission certifies a local coastal program, authority over coastal development permits is delegated to the local government, but the Commission has appellate jurisdiction to determine whether a proposed development conforms to the standards set forth in the local coastal program. (Pub. Resources Code, §§ 30519, 30603.) In short, as the court in Pratt observed, "the Legislature made the Commission, not the [local government], the final word on the interpretation of the [local coastal program]." (Pratt, supra, 162 Cal.App.4th at p. 1078.)
We find that the Commission's interpretation of section 17-20, unlike the City's, is consistent with the plain language of the ordinance. The fact that the ordinance uses the term "coastal-dependent" in one subsection -- referencing a policy set forth in Public Resources Code section 30260 and encouraging the location of coastal-dependent facilities at existing sites -- but does not use that term when describing permitted uses in the EC sub-zone is a strong indication that the ordinance was not intended to limit development of electrical power generating facilities to those that are coastal-dependent. To interpret the ordinance in the manner suggested by the City would require us to insert language, used in one place in the ordinance, into several other places in the ordinance, something we may not do in light of the unambiguous terms of the ordinance. (People v. National Automobile & Casualty Ins. Co. (2002) 98 Cal.App.4th 277, 282; see also Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310 ["Absent a compelling reason to do otherwise, we strive to construe each statute in accordance with its plain language"]; accord Reddell, supra, 180 Cal.App.4th at p. 966.) Accordingly, we defer, as we must, to the Commission's reasonable interpretation of section 17-20. (Reddell, supra, 180 Cal.App.4th at p. 968.) C. Policy 42
In approving the proposed peaker project, the Commission found that the project is in conformance with water conservation and municipal services policies contained in the City's local coastal program. The City challenges the Commission's finding with regard to one of those policies -- Policy 42 --contending that the Commission misinterpreted that policy.
Policy 42 states: "Consideration of all proposed projects in the coastal zone shall include consideration of the remaining water and sewer capacities. This shall include a calculation of the proposed project's use of remaining capacity in percent. Projects shall be approved only when sufficient water and sewer services are available." With regard to water usage, the Commission found that, assuming the peaker would operate at the maximum level of 2,000 hours per year, the proposed project would require almost 27 acre feet of water per year for the first two years, approximately 25 acre feet per year for the next two years, and 24 acre feet in each subsequent year of operation. However, the Commission noted it is anticipated that the peaker would operate only 200 hours per year, in which case the water requirements would be between two and four acre feet per year. The Commission determined, based upon projections in the City's 2005 Urban Water Management Plan (the 2005 Plan), that the proposed project would require less than one percent of the projected excess water capacity of 3,189 acre feet in 2010. Therefore, the Commission concluded that the proposed project's municipal water requirements would not be expected to substantially affect remaining or projected water supply capacity in the City.
The Commission noted that the City informed Commission staff that "due to existing drought conditions, recent court decisions, and the fact that long range municipal water supply assessments did not include an allocation of water for this project, [Edison] would be required to participate in a newly created mitigation program designed to address projects requiring substantial use of municipal water." As described in a report by City staff provided to the Oxnard City Council on January 15, 2008, recommending adoption of the mitigation program, the program would augment the 2005 Plan's water shortage contingency plan, which "would be activated during a declared Water Shortage Emergency." The mitigation program would require large municipal water users to either (1) participate in a to-be-developed offset program or (2) suspend project approval contingent on confirmed availability of reliable water supplies. The report explained how the mitigation program would be implemented, stating that "[i]nitially, this program would be included in EIRs and MND, including the General Plan Update EIR, and then added into the next update of the [Urban Water Management Plan]."
In its revised findings, the Commission observed that the City's General Plan Update EIR was still being developed, the next update of the Urban Water Management Plan was not scheduled until the following year, and the offset program described in the first option had yet to be developed and implemented. The Commission noted, however, that even though the mitigation program had not yet been implemented by the City, Edison obtained a letter from the general manager of the Calleguas Municipal Water District, one of the primary suppliers of water to the City, warranting that the Water District could provide additional water to the City to service the proposed facility. Because the City had not, at the time of the Commission's approval of the coastal development permit, responded to the Commission's repeated request for confirmation as to whether the Water District's letter qualifies as "confirmed availability of reliable water supplies," as required by the mitigation program, the Commission evaluated the City's water supplies based upon the 2005 Plan and the Water District's letter. Based upon that information, the Commission found that, in light of the small amount of municipal water required by the proposed project relative to the projected total excess capacity, "'sufficient water and sewer services are available' for the proposed project and that [the proposed project] is therefore in conformance with . . . Policy 42."
The City does not contend on appeal that the facts underlying the Commission's finding (i.e., the proposed project's water requirements and the projected water capacity provided in the 2005 Plan) are unsupported. Instead, the City argues that the Commission improperly interpreted Policy 42 by focusing solely on whether there was sufficient water capacity. The City contends that, in doing so, the Commission ignored the last sentence of Policy 42, which requires a determination of whether water service is available. According to the City, that determination requires the Commission to determine whether the City would actually provide water service to the proposed project, which would depend upon Edison's compliance with the City's new mitigation program. We disagree.
It is true that Policy 42 uses the word "services" rather than "capacity" in its last sentence, requiring that projects be approved "only when sufficient water and sewer services are available." It does not follow, however, that the term "service" as used in that sentence requires the Commission to consider anything other than projected excess capacity when determining whether the proposed project conforms to the local coastal program policy.
Under established rules of statutory interpretation, the words of a statute must be construed in context, taking into account the legislative intent apparent in the statute. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) The structure of Policy 42 demonstrates the legislative intent, and supports the Commission's interpretation -- an interpretation to which we must defer. (Reddell, supra, 180 Cal.App.4th at p. 968.)
The first sentence of Policy 42 sets forth its purpose: to ensure that water and sewer remaining capacities are taken into account when considering proposed projects in the coastal zone. The second sentence provides the means by which those remaining capacities are to be taken into account: it requires a calculation of a proposed project's use of remaining capacities. The last sentence provides a baseline for approval of proposed projects: they may be approved "only when sufficient water and sewer services are available." Read in context, the last sentence's reference to "sufficient water . . . services" reasonably may be construed to refer to water capacity. Thus, the Commission properly found that the proposed peaker project conformed to Policy 42 in light of its finding that the proposed project would require less than one percent of the City's projected remaining water capacity.
In any event, even if Policy 42 had required the Commission to consider whether there were City policies -- not included in the City's local coastal program -- that would impact the availability of water services to the proposed project, the administrative record does not support the City's assertion that Edison was required to demonstrate compliance with the mitigation program at issue here. As Edison noted in a submission to the Commission, the presentation and report to the City Council outlining the recommended mitigation program indicated that the program would be implemented in the event that new water demands temporarily exceeded available supply, and would remain in place until reliable water supplies were consistent with anticipated demand. Edison also noted that the program had not yet been fully developed or formally adopted by the City Council, and that there had been no determination that water for new hookups was not available. The City provided no evidence to the contrary, but instead simply insisted that it was "not prepared to extend water service" to the proposed project unless Edison "participates in a program that identifies offset consumption." In the absence of evidence in the administrative record that the program was sufficiently developed, adopted by the City Council, and implemented, the Commission had no reason (or even ability) to determine whether the proposed project would satisfy that program. Thus, even if Policy 42 could be interpreted to require a determination as to whether a proposed project complied with other City programs or policies affecting water service, no such determination was required with regard to the mitigation program at issue here. D. "No Project" Alternative
We do not mean to suggest that the Commission's finding of compliance with Policy 42 precludes the City from requiring compliance with its mitigation program if the program has been adopted and implemented at the time Edison seeks whatever additional approvals and/or permits are required to go forward with the project. Our holding, that Policy 42 does not require a determination as to whether the project complies with the mitigation program, relates only to the Commission's approval of a coastal development permit.
The final issue raised by the City relates to the Commission's compliance with CEQA with regard to its analysis of the "no project" alternative. Under CEQA, before a public entity approves a project that will have a significant impact on the environment, it is required to conduct a review of the project, "documenting its analysis, usually through the preparation of an environmental impact report (EIR)." (Strother v. California Coastal Com. (2009) 173 Cal.App.4th 873, 877.) There is, however, an exemption in CEQA from the EIR requirement for state agencies, such as the Commission, that are certified to conduct environmental reviews under their own regulatory programs. (Ibid.; Pub. Resources Code, § 21080.5.) The exemption "is not a 'blanket exemption to CEQA's provisions; it grants only a limited exemption to the applicability from CEQA by allowing [the Commission] to prepare a [staff report] in lieu of a complete [EIR].' [Citation.]" (Joy Road Area Forest & Watershed Assn. v. California Dept. of Forestry & Fire Protection (2006) 142 Cal.App.4th 656, 667.) That staff report -- which "functions as the equivalent of an EIR" (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230) -- must include "a description of the proposed activity with alternatives to the activity, and mitigation measures to minimize any significant adverse effect on the environment of the activity." (Pub. Resources Code, § 21080.5, subd. (d)(3)(A); see also Cal. Code Regs., tit. 14, § 15252, subd. (a)(2)(A).)
The guidelines for implementation of CEQA, set forth in the California Code of Regulations, include a guideline for consideration of alternatives in an EIR. (Cal. Code Regs., tit. 14, § 15126.6.) That guideline states that, in addition to considering reasonable feasible alternatives to the proposed project, "[t]he specific alternative of 'no project' shall also be evaluated along with its impact." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(1).) The "no project" alternative is "the circumstance under which the project does not proceed." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(3)(B).) The guideline directs the lead agency to "analyze the impacts of the no project alternative by projecting what would reasonably be expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(3)(C).) "The purpose of describing and analyzing a no project alternative is to allow decisionmakers to compare the impacts of approving the proposed project with the impacts of not approving the proposed project." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(1).)
In the present case, the Commission's staff report included a discussion of alternatives to the proposed peaker project, including a no project alternative. Addressing the no project alternative, the report refers to an analysis conducted by Edison (which was attached as an exhibit to the report), explaining why the no project alternative was rejected. Edison's analysis stated that the area on the Edison system most in need of a peaker project is the Ventura/Santa Barbara system west of the Pardee Substation, and that no other projects have been proposed for that area that will provide the reliability benefits of the proposed project. Edison's analysis also stated that "[i]f the proposed project is not constructed, one or more future generation or transmission projects will need to be constructed in this same area" to address the local reliability needs. The analysis concluded that the no project alternative "does not satisfy the fundamental purpose and need for the project." The Commission's staff report provided no further analysis, and simply agreed with Edison's analysis.
The City contends that the Commission's analysis of the no project alternative was inadequate because it did not include a description of existing conditions on the site, or an evaluation of the potential effects on the site if the project were not approved, such as possible alternative uses of the site that might be proposed. The Commission argues in its respondent's brief that it was not required to analyze a no project alternative, but even if it was required, its analysis complied with CEQA. While we disagree that the Commission was not required to analyze a no project alternative, we agree that the analysis in the staff report complied with CEQA.
Edison also argues on appeal that the no project analysis satisfied the requirements of CEQA.
1. CEQA Requires Analysis of a "No Project" Alternative in the Commission Staff Report
The Commission staff report began its analysis of alternatives with an "overview" in which it noted that the CEQA guidelines require a discussion of reasonable feasible alternatives as well as a discussion of the "no project" alternative. (Citing Cal. Code Regs., tit. 14, § 15126.6.) In this appeal, however, the Commission contends for the first time that analysis of the "no project" alternative is only required in an EIR. It reasons that, in exempting stage agencies such as the Commission from the EIR requirement, CEQA requires only that the functional equivalent document include "a description of the proposed activity with alternatives to the activity, and mitigation measures to minimize any significant adverse effect on the environment of the activity." (Pub. Resources Code, § 21080.5, subd. (d)(3)(A).) The Commission observes that "[h]ad the Legislature intended to impose . . . a requirement [to include a no project analysis in the functional equivalent document] it would have done so explicitly as it did with EIRs."
The flaw in the Commission's reasoning is that the Legislature did not explicitly impose that requirement in the statute setting forth the required elements for an EIR. That statute simply states that the EIR must include "a detailed statement setting forth . . . [¶] [a]lternatives to the proposed project." (Pub. Resources Code, § 21100, subd. (b)(4).) The required analysis of the "no project" alternative is found in section 15126.6 of guidelines adopted by the Secretary for Resources and set forth in title 14 of the California Code of Regulations. Although that section (entitled "Consideration and Discussion of Alternatives to the Proposed Project") is located in the portion of the guidelines relating to the contents of an EIR, rather than a functional equivalent document, there is no reason why its provisions should not apply to the discussion of alternatives in either type of document. (See Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 135-136 [noting the applicability of guideline requiring consideration of "no project" alternative to state agency certified to conduct environmental reviews under its own regulatory program].)
2. The Commission's "No Project" Alternative Analysis is Sufficient Under the Facts of This Case
Having concluded that the Commission was required to analyze the "no project" alternative in its staff report, we turn to the sufficiency of its analysis.
As the City correctly notes, the analysis must include a description of existing conditions at the site. (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(2).) But contrary to the City's assertion, the Commission's staff report includes a detailed description of existing conditions. Although that five-page description is located in an earlier section of the report, under the heading "Biological Features of Project Area," rather than in the "Alternatives" section, it clearly satisfies the purpose of an EIR (or functional equivalent document), which is to give the public and government agencies the information needed to make informed decisions, thus protecting "'"not only the environment but also informed self-government."' [Citation.]" (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162.) Thus, we find the staff report complied with the requirement to describe existing conditions at the site.
The guidelines also provide that the "no project" analysis must discuss "what would be reasonably expected to occur in the foreseeable future if the project were not approved." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(2).) The City argues that the staff report did not comply with this requirement because it did not discuss the fact that the California Coastal Conservancy "has targeted the project site for acquisition and restoration for conservation purposes," and instead focused on the fact that the impacts of building the peaker plant at some alternative location would be greater than the impacts of building it at the proposed site.
While it is true that the Conservancy had expressed interest in acquiring the project site in 2000, Edison notified the Conservancy in 2001 that it intended to retain the property. Edison informed the Commission that it is not interested in selling the property and it is not aware of any public agency that has been specifically authorized, or has funds available, to acquire the property. In light of this information, the Commission was not required to discuss the possibility of acquisition of the project site by the Conservancy, because it was not an event that "would be reasonably expected to occur in the foreseeable future if the project were not approved." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(2).)
Instead, the "no project" analysis properly focused on the fact that the impacts of building the peaker plant at some alternative location would be greater if the proposed project was not approved. As the guidelines state, "[t]he purpose of describing and analyzing a no project alternative is to allow decisionmakers to compare the impacts of approving the proposed project with the impacts of not approving the proposed project." (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(1).) Due to the unusual circumstances of this case, rejection of the proposed project would not result in the peaker plant not being built. Edison is required by the Assigned Commissioner's Ruling to build a peaker plant that is black-start capable and addresses local reliability needs. Although that ruling directed Edison to complete construction by summer 2007 so it would be available during peak demand, the fact that the project was delayed due to the City's denial of Edison's permit application does not relieve Edison of its obligation under the ruling. Indeed, the circumstances that led to the Assigned Commissioner's Ruling -- the need expressed by CAISO for new peaking resources to ensure electric system reliability -- still exist, as evidenced by a letter sent by CAISO to the Commission in March 2009 urging the Commission to approve the proposed peaker project. In short, the effect of not approving the proposed project would be that the peaker plant would be built at an alternative site. Thus, the staff report analysis of the "no project" alternative properly compared the impacts of building the peaker plant at the proposed site with the impacts of building it at alternate sites. The Commission did not abuse its discretion by proceeding in this manner. (Association of Irritated Residents v. County of Madera, supra, 107 Cal.App.4th at p. 1390.)
DISPOSITION
The judgment is affirmed. The Commission and Edison shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.