Filed 6/13/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

WORLD BUSINESS ACADEMY,

Petitioner and Appellant,

v.

CALIFORNIA STATE LANDS 

COMMISSION,

Defendant and Respondent;

PACIFIC GAS & ELECTRIC 

COMPANY,

 Real Party in Interest and 

Respondent. 

 B284300

 (Los Angeles County

 Super. Ct. No. BS163811)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mary H. Strobel, Judge. Affirmed.
2

Humphrey & Rist, Christina A. Humphrey, Thomas A. 

Rist; Law Offices of J. Kirk Boyd, J. Kirk Boyd for Petitioner and 

Appellant.

Xavier Becerra, Attorney General, Deborah M. Smith, and 

Christina Morkner Brown, Deputy Attorneys General for 

Defendant and Respondent California State Lands Commission. 

Shute Mihaly & Weinberger, William J. White as Amicus 

Curiae on behalf of Respondent California State Lands 

Commission.

Armbruster Goldsmith & Delvac, Damon P. Mamalakis for 

Real Party in Interest and Respondent Pacific Gas and Electric 

Company.

Real party in interest and respondent Pacific Gas and 

Electric Company (PG&E) owns and operates the Diablo Canyon 

nuclear power plant in San Luis Obispo County. The plant uses 

water from the Pacific Ocean to operate its cooling systems. 

The water intake and discharge structures are situated on stateowned submerged and tidal lands overseen by defendant and 

respondent California State Lands Commission (Commission). 

PG&E and the Commission entered into two long-term leases, set 

to expire in August 2018 and May 2019, which authorized PG&E 

to build and operate the water intake and discharge structures. 

With those leases nearing expiration, PG&E applied for a 

consolidated replacement lease extension through 2025, when it 

plans to cease operating the plant.

The Commission held public hearings about the matter and 

eventually approved the application. It did not prepare an 
3

environmental impact report (EIR) under the California 

Environmental Quality Act (CEQA) (Pub. Resources Code, 

§ 21000 et seq.)1 prior to making its determination. Instead, the 

Commission concluded the lease replacement, which maintained 

the status quo at the plant, was subject to the “existing facilities” 

categorical exemption to CEQA (Cal. Code Regs., tit. 14 

(Guidelines) § 15301). The Commission further found 

inapplicable the “unusual circumstances” exception, which 

supersedes the existing facilities exemption “where there is a 

reasonable possibility that the activity will have a significant 

effect on the environment due to unusual circumstances.” 

(Guidelines § 15300.2, subd. (c).) 

Petitioner and appellant World Business Academy sought 

an administrative writ and declaratory relief in Los Angeles 

County Superior Court. It contended that the lease replacement 

should not have been subject to the existing facilities exemption, 

and that even if it was, the unusual circumstances exception to 

the exemption should apply. Appellant further argued that the 

lease replacement violated the public trust doctrine. The trial 

court rejected these contentions and denied the writ and 

declaratory relief. We affirm. 

BACKGROUND

The Diablo Canyon power plant is a two-unit nuclear power 

plant owned and operated by PG&E. It is adjacent to the Pacific 

Ocean, near Avila Beach in San Luis Obispo County, on 

approximately 750 acres of land owned by PG&E. The plant was 

 

1 All further statutory references are to the Public 

Resources Code unless otherwise indicated. 
4

completed in 1973 and began operations in 1985. Its two nuclear 

units still operate today and are licensed by the federal Nuclear 

Regulatory Commission (NRC) to operate until November 2, 2024 

(unit 1) and August 26, 2025 (unit 2). 

The plant uses a “once-through” cooling system to cool the 

nuclear units. Each day, the cooling system draws more than two 

billion gallons of seawater from a breakwater-protected intake 

cove on the coast. The water is pumped through “traveling water 

screens” to filter out “ocean debris.” Debris larger than the 

screening mesh—including plants and fish—gathers or 

“impinges” on the screens and is subsequently washed off and 

sent through “[g]rinding and mincing equipment installed in the 

inlets of the refuse sump.” “Entrained debris smaller than the 

3/8-inch screening mesh passes through the cooling system” along 

with the seawater, which is heated by approximately 20 degrees 

Fahrenheit during its five-minute journey through the plant. The 

heated water is then returned to the Pacific Ocean via a 

discharge channel located in the coastal bluff. 

The intake cove, breakwaters, intake structure, and 

discharge channel are located on state-owned tidal and 

submerged lands. The Commission authorized a 49-year lease in 

1969, allowing PG&E to construct and operate the intake cove, 

intake structures and breakwaters on state-owned land. The 

Commission authorized a second 49-year lease in May 1970, for 

the cooling water discharge channel. The leases had expiration 

dates of August 27, 2018 and May 31, 2019, respectively, several 

years before the plant’s federal operating licenses are scheduled 

to expire.

The power plant cannot operate without the cooling system, 

however, and the cooling system cannot operate without the 
5

infrastructure located on the leased lands. PG&E accordingly 

submitted an application to the Commission in January 2015 to 

replace the expiring leases with a single new lease to run 

coterminously with its federal licensure.2

The Commission held a public meeting on the matter on 

December 18, 2015. During that meeting, then-Committee 

chairperson and Lieutenant Governor Gavin Newsom remarked 

that “every few years, another [seismic] fault is discovered” near 

the plant, raising “another question mark about its safety and its 

potential to survive an earthquake. . . .” He further observed that 

the original leases, which predated the 1970 enactment of CEQA, 

never had been given “CEQA consideration.” Newsom queried 

the extent of CEQA review that might be required in this case. 

Commission Executive Officer Jennifer Lucchesi assured 

Newsom that Commission staff would prepare an analysis “with 

potentially some recommendations on not only an approach and a 

framework for analyzing the CEQA considerations, but also a 

framework for looking at the public trust issues” associated with 

the lease replacement. 

Commission staff subsequently prepared an “Informational 

Update” dated February 9, 2016. In that update, Commission 

staff reported that PG&E had taken the position that no 

environmental review of the lease replacement was necessary 

under the “existing facilities” categorical exemption to CEQA 

because the plant was “an existing facility with no change or 

 

2 PG&E submitted a license renewal application to the 

NRC in 2009. The NRC initiated an environmental review 

pursuant to the National Environmental Policy Act and held 

public environmental scoping meetings in August 2015. As we 

discuss post, PG&E ultimately withdrew its license renewal 

application, so its federal licensures will expire in 2024 and 2025. 
6

expansion of an existing use.” Commission staff further reported 

that the existing facilities exemption could be overridden by the 

unusual circumstances exception, which applies “where there is a 

‘reasonable possibility that the activity will have a significant 

effect on the environment due to unusual circumstances.’ (Cal. 

Code Regs., tit. 14, § 15300.2, subd. (c).)” 

The update then made several observations about the 

characteristics of the plant and its location. It first noted that 

the plant “is the only active nuclear power plant in California, 

supplying approximately 18,000 gigawatt-hours of electricity 

annually (nearly 10% of California’s electricity generation).” It 

further noted that the plant’s “nuclear fuel source and proximity 

to fault lines distinguish it from other power plants in 

California.” The update also acknowledged the existence of 

“substantial disagreement” between PG&E and the United States 

Geological Survey about the risks associated with two fault lines,

the Shoreline and the Hosgri, near the plant. PG&E believed the 

faults posed no hazard to the plant, which was built and 

retrofitted to withstand a magnitude 7.5 earthquake. In 

contrast, a seismologist with the U.S. Geological Survey, Jeanne 

Hardebeck, “believe[d] that a joint seismic event of the Hosgri 

and Shoreline faults could exceed [the plant]’s design capacity for 

safe operation, possibly reaching a magnitude of 7.7.”

The update concluded this discussion without explicitly 

identifying any of these characteristics as unusual circumstances 

or assessing whether any of them would cause the lease 

replacement to have a significant effect on the environment. 

Indeed, the update made no recommendation to the Commission 

regarding application of the existing facilities exemption or the 

unusual circumstances exception. Instead, it noted that 
7

Commission staff “continue[d] to evaluate the appropriate 

environmental review pursuant to CEQA for this application.” 

The update further advised the Commission that it would need to 

analyze the lease replacement under the public trust doctrine, 

pursuant to which the Commission is required to ensure that the 

tidal and submerged lands under its control are reserved for 

appropriate uses and the general benefit of the community. (See 

Citizens (2011) 202 Cal.App.4th 549, 570-571.) 

In March 2016, representatives from appellant met with 

Commission staff and delivered a presentation, “On Public 

Health Issues and Proposed Diablo Canyon CEQA Review,” 

which addressed adverse public health outcomes appellant 

attributed to the operation of the plant. Appellant’s presentation 

highlighted increased incidence of cancer in San Luis Obispo 

County, particularly cancers of the thyroid, breast, and skin; and 

increased incidence of low-birth weight babies and infant 

mortality “in the 10 zip code areas in Santa Barbara County 

closest to Diablo Canyon.” The presentation also asserted that 

the incidence of childhood cancer in the vicinity of the Rancho 

Seco nuclear power plant had decreased “dramatically” after that 

plant was closed in 1989. 

Appellant’s presentation was based on a research paper by 

Joseph Mangano, MPH, MBA, “Report on Health Status of 

Residents in San Luis Obispo and Santa Barbara Counties Living 

Near the Diablo Canyon Nuclear Reactors Located in Avila 

Beach, California.” The Commission also received a report 

challenging Mangano’s research. That report, prepared by the 

San Luis Obispo County Public Health Department, concluded 

“none of [Magano’s] claims hold up” due to “substantial and 

obvious problems in methodology wherein basic statistical 
8

precepts were overlooked,” as well as “selection bias in choosing 

case and control groups.” 

On June 21, 2016, PG&E entered into an agreement called 

the “Joint Proposal” with Friends of the Earth, Natural 

Resources Defense Council, Environment California, 

International Brotherhood of Electrical Workers Local 1245, 

Coalition of California Utility Employees, and Alliance for 

Nuclear Responsibility, at least some of which previously had 

opposed its lease replacement application.3 The signatories 

agreed that PG&E would “retire Diablo Canyon at the expiration 

of its current NRC operating licenses”—in 2024 and 2025—and 

that all signatories “will jointly propose and support the orderly 

replacement of Diablo Canyon with [greenhouse gas] free 

resources.” PG&E accordingly agreed to “immediately cease any 

efforts on its part to renew the Diablo Canyon operating licenses 

and will ask the NRC to suspend consideration of the pending 

Diablo Canyon license renewal application pending withdrawal 

with prejudice of the NRC application upon [California Public 

Utilities Commission] approval of the Joint Proposal . . . .” 

Friends of the Earth and the Natural Resources Defense Council

subsequently withdrew their objections to the lease replacement 

application. Nothing in the Joint Proposal “constrain[ed] or 

limit[ed] in any way the right of Parties to raise safety or 

 

3

In its response to the amicus curiae brief filed by Friends 

of the Earth and Natural Resources Defense Council, appellant 

World Business Academy asserts that it also “was an integral 

part of the settlement discussions” that resulted in the Joint 

Proposal. It did not sign the document, however, because it

“ultimately would not support a political deal that would gut 

CEQA and grant an exemption in contravention of established 

law and precedent.” 
9

compliance issues related to Diablo Canyon with the NRC or any 

other government agency, going forward.” 

Commission staff prepared a final report in advance of the 

Commission’s June 28, 2016 public meeting. In this report, 

Commission staff concluded that “[t]he issuance of the proposed 

limited-term lease fits squarely into the categorical exemption for 

existing facilities under CEQA.” It explained, “[t]he 

infrastructure that is the subject of this proposed lease has 

existed for over 40 years and are [sic] considered part of the 

existing environmental baseline. There are no operational or 

physical changes to the DCPP, an existing facility, in connection 

with the subject lease application.” 

The report continued, however, that “[t]he question is 

whether the [unusual circumstances] exception to this exemption 

applies. It is within the Commission’s authority to use its 

independent judgment, based on the facts, to determine whether 

there is a reasonable possibility that the issuance of the proposed 

limited-term interim lease will have a significant effect on the 

environment due to unusual circumstances based on substantial 

evidence.” The report acknowledged that the coastal plant “is the 

only active nuclear power plant in California,” but noted that 

“there are many other power plants along California’s coast in 

active seismic regions.” The report further noted that the plant 

“is proximate to several earthquake fault lines, including, [sic] 

the Hosgri, Shoreline, San Andreas, San Simeon, San Luis Bay, 

and Los Osos faults.” The report reiterated the existence of 

“substantial disagreement” between PG&E and U.S. Geological 

Survey seismologist Hardebeck. It also noted, however, that the 

NRC agreed with PG&E that a joint rupture of the Hosgri and 

Shoreline faults was unlikely. It additionally noted that the 
10

plant was designed to withstand ground shaking of up to 0.83 g,4

and the largest ground motion recorded at the plant to date was 

0.042 g, a full order of magnitude less. The report further stated 

that staff evaluated the possible impact of rising sea levels on the 

plant and its cooling system infrastructure, and concluded “that 

sea-level rise will have no impact on the safe function of the 

DCPP for the limited term of the proposed lease.” It did not 

highlight for the Commission any other potential unusual 

circumstances, such as the adverse health outcomes appellant 

discussed at the March 2016 meeting, or their effects on the 

environment. The report recommended that the Commission 

apply the existing facilities exemption and authorize the lease 

replacement. 

The report also considered the public trust doctrine. In its 

analysis of that issue, the Commission considered the 

environmental impacts of the plant’s once-through cooling 

system. It noted that the State Water Resources Control Board 

had adopted a new policy on once-through cooling, which would 

require modifications to the plant if it were to continue operating 

after 2025. The report concluded that the new policy “ 

appropriately regulates” the impacts to marine life associated 

with once-through cooling. The report also noted that the Joint 

Proposal addressed “policy concerns associated with the 

shutdown of the DCPP in 2025, including replacement energy . . 

., workforce transition, and community impacts.” It ultimately 

concluded that the lease replacement “will not significantly 

interfere with the trusts upon which [public] lands are held or 

substantially impair the public rights to navigation, fisheries, or 

 

4 Per the report, “g refers to the acceleration that the Earth 

imparts to objects on or near its surface due to gravity.”
11

other Public Trust needs and values at this time, at this location, 

and for the limited-term lease beginning June 28, 2016 and 

ending August 26, 2025.” 

Executive Officer Lucchesi presented these 

recommendations during the Commission’s public meeting on 

June 28, 2016. The Commission also heard comments from 

numerous members of the public. Many members of the public, 

including speakers affiliated with appellant, urged the 

Commission to require an EIR. They also presented the 

Commission with a petition requesting an EIR. Many other 

members of the public spoke in support of the lease renewal, and 

some specifically urged the Commission not to require an EIR. 

At the conclusion of the hearing, all three commissioners 

expressed support for and ultimately voted to adopt the 

recommendations the Commission staff made in its report. 

Executive Officer Lucchesi subsequently filed a notice of 

exemption finding that the lease renewal was exempt from CEQA 

under the existing facilities exemption. The notice contained the 

following “Reasons for exemption”: “Issuance of a General Lease 

– Industrial Use for the above-mentioned structure(s) will not 

cause a physical change in the environment and will not change 

existing activities in the area. There is no reasonable possibility 

that the activity will have a significant effect on the environment 

due to unusual circumstances. Therefore, the project will not 

have a significant effect on the environment and the above 

categorical exemption(s) apply(ies).” 

On August 2, 2016, two non-profit organizations, 

Immaculate Heart Community and appellant World Business 

Academy, filed a verified petition for a writ of administrative 
12

mandate in the Los Angeles County Superior Court.5 The 

petition asserted two causes of action: (1) the Commission 

“violated CEQA, prejudicially abused its discretion, failed to 

proceed in a manner required by law, and failed to support its 

findings and conclusions with analysis and facts by determining 

that the issuance of the PG&E Lease was ‘not a project’ under 

CEQA, and, by implication, that no unusual circumstances

existed in this case,” and (2) the “Commission violated the Public 

Trust Doctrine, prejudicially abused its discretion, failed to 

proceed in a manner required by law, and failed to support its 

findings and conclusions with analysis and facts by approving the 

PG&E Lease, which will irreparably injure and deplete public 

trust resources, including but not limited to, the marine 

ecosystem in the vicinity of Diablo Canyon, special status fish 

and wildlife, and California’s coastal shoreline, without first 

requiring the preparation of an EIR under CEQA.” The parties 

lodged a copy of the administrative record with the trial court 

and filed a joint appendix containing pertinent excerpts. 

The trial court held a hearing on the matter in July 2017. 

The trial court denied relief and explained its reasons for doing so 

in a 54-page minute order. As is relevant here,6 the trial court 

agreed with the Commission that the lease replacement was 

within the existing facilities exemption to CEQA, and that the 

unusual circumstances exception to that exemption did not apply. 

The trial court further concluded that the Commission’s public 

 

5 Only World Business Academy is a party to this appeal.

6 The trial court’s ruling, while quite thorough and helpful 

in framing the issues before us, is of limited relevance because we 

directly review the decision of the Commission, not that of the 

trial court. (See post, at pp. 16-17.) 
13

trust analysis was supported by substantial evidence and was not 

arbitrary. 

Appellant timely appealed. 

DISCUSSION 

I. CEQA Overview

CEQA was enacted in 1970 to advance California’s strong 

public policy of environmental protection. (Tomlinson v. County 

of Alameda (2012) 54 Cal.4th 281, 285 (Tomlinson).) The key 

requirement of this comprehensive scheme is “the preparation of 

an EIR for ‘any project that a public agency proposes to carry out 

or approve that may have a significant effect on the 

environment.’ [Citation.]” (Orange County Water District v. 

Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 333.) An 

EIR is a “detailed,” “informational document which, when its 

preparation is required . . ., shall be considered by every public 

agency prior to its approval or disapproval of a project. The 

purpose of an environmental impact report is to provide public 

agencies and the public in general with detailed information 

about the effect which a proposed project is likely to have on the 

environment; to list ways in which the significant effects of such 

a project might be minimized; and to indicate alternatives to such 

a project.” (§ 21061.) Though preparation of an EIR is “often 

lengthy and expensive” (City of Santee v. County of San Diego

(2010) 186 Cal.App.4th 55, 63), an EIR must be prepared 

“‘whenever it can be fairly argued on the basis of substantial 

evidence that [a] project may have significant environmental 

impact.’ [Citations.]” (American Coatings Association, Inc. v. 

South Coast Air Quality District (2012) 54 Cal.4th 446, 473.) 

This threshold was set low to ensure that CEQA provides 

effective environmental protection. (Ibid.) 
14

The first step in determining whether an EIR is required 

for a particular activity—here, the lease replacement—is to 

determine whether the activity is a “project” as defined in CEQA. 

(Tomlinson, supra, 54 Cal.4th at p. 286.) As relevant here, a 

“project” is “an activity which may cause either a direct physical 

change in the environment, or a reasonably foreseeable indirect 

physical change in the environment” and “is supported, in whole 

or in part, through contracts . . . from one or more public 

agencies.” (§ 21065, subd. (b).) If the proposed activity is a 

“project,” the agency must continue its review. If not, CEQA does 

not apply and the environmental review process is complete. 

There is no dispute that the lease replacement is a 

“project.” The Commission thus was required to proceed to the 

next step, determining if the project qualifies for either a 

statutory (§ 21080) or categorical exemption (§ 21084, subd. (a); 

Guidelines § 15300) to CEQA. Statutory exemptions are absolute 

exemptions enacted by the Legislature. (North Coast Rivers 

Alliance v. Westlands Water District (2014) 227 Cal.App.4th 832, 

850 (North Coast).) “‘Projects and activities can be made wholly 

or partially exempt, as the Legislature chooses, regardless of 

their potential for adverse [environmental] consequences.’ 

[Citation.]” (Ibid.) Categorical exemptions are “classes of 

projects” that the Secretary of the Natural Resources Agency, 

with the authorization of the Legislature, has determined are 

exempt because they do not have a significant effect on the 

environment. (Tomlinson, supra, 54 Cal.4th at p. 286.) For 

instance, the Secretary has determined that, as a class, projects 

involving “negligible or no expansion of an existing use” are 

exempt from CEQA. (Guidelines § 15301.) This “existing 

facilities” exemption is at issue here. 
15

Unlike statutory exemptions, categorical exemptions such 

as the “existing facilities” exemption are subject to exceptions 

enumerated in Guidelines section 15300.2. (North Coast, supra, 

227 Cal.App.4th at p. 850.) An agency may not apply a 

categorical exemption without considering whether it is 

foreclosed by an exception. (Berkeley Hillside Preservation v. City 

of Berkeley (2015) 60 Cal.4th 1086, 1103 (Berkeley Hillside).) The 

most commonly raised exception is the “unusual circumstances” 

exception at issue here. (See Fairbank v. City of Mill Valley

(1999) 75 Cal.App.4th 1243, 1259.) That exception provides that 

a categorical exemption may not be used “where there is a 

reasonable possibility that the activity will have a significant 

effect on the environment due to unusual circumstances.” 

(Guidelines § 15300.2, subd. (c).) We define these terms in our 

discussion below. 

The party advocating for the application of the unusual 

circumstances exception bears the burden of demonstrating that 

the project falls within the exception. (Fairbank v. City of Mill 

Valley, supra, 75 Cal.App.4th at p. 1259.) If the agency 

determines that an exemption applies, and no exception 

forecloses its application, the project is exempt from CEQA and 

no further environmental review is required. (Tomlinson, supra, 

54 Cal.4th at p. 286.) Thus, the project moves forward without 

the preparation of an EIR. That is the posture in which this 

appeal has arisen. 

II. Standard of Review

“‘In considering a petition for a writ of mandate in a CEQA 

case, “[o]ur task on appeal is ‘the same as the trial court’s.’

[Citation.]” . . . Accordingly, we examine the [Commission’s] 

decision, not the trial court’s.’ [Citation.]” (Walters v. City of 
16

Redondo Beach (2016) 1 Cal.App.5th 809, 816-817 (Walters); see 

also Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501 [“as 

to administrative determinations properly reviewed in the 

superior court under the substantial evidence standard or an 

abuse of discretion standard, the scope of review is the same in 

the appellate court as it was in the superior court, that is, the 

appellate court reviews the administrative determination, not 

that of the superior court, by the same standard as was 

appropriate in the superior court”]). Our review thus “is de novo 

in the sense that we review the agency’s actions as opposed to the 

trial court’s decision.” (North Coast, supra, 227 Cal.App.4th at p. 

849.) 

“[O]ur inquiry extends only to whether there was a 

prejudicial abuse of discretion” by the agency. (North Coast, 

supra, 227 Cal.App.4th at p. 849, citing § 21168.5.) “‘Such an 

abuse is established “if the agency has not proceeded in a manner 

required by law or if the determination or decision is not 

supported by substantial evidence.” [Citations.]’ [Citation.]” (Id.

at p. 850.) To the extent the question presented turns on an 

interpretation of CEQA, the Guidelines, or the scope of a 

particular exemption, it is one of law that we review de novo. 

(Walters, supra, 1 Cal.App.5th at p. 817.) 

III. Record on Review

The California Rules of Court provide that the appellate 

record in a civil case must contain pertinent written documents 

from the superior court proceedings being reviewed. (See Cal. 

Rules of Court, rule 8.120(a).) The rules further provide that an 

appellant intending to raise “any issue that requires 

consideration of the record of an administrative proceeding that 

was admitted in evidence, refused, or lodged in the superior 
17

court” must either include (Cal. Rules of Court, rule 8.120(a)(2)) 

or designate for inclusion (Cal. Rules of Court, rule 8.121(b)(2)) 

the administrative record in the record on appeal. Appellant did 

not designate or include the administrative record, nor did 

respondents timely request “that this administrative record be 

transmitted to the reviewing court.” (Cal. Rules of Court, rule 

8.123(b)(2).) Instead, the parties initially provided only a joint 

appellate appendix containing (among other things) the joint 

appendix of pertinent administrative record excerpts that they 

filed in the trial court. 

These excerpts were not sufficient to facilitate our review. 

The Commission, whose ruling we review, had before it the full 

administrative record. We cannot determine if a decision is 

supported by substantial evidence without assessing the evidence 

underlying the decision. Indeed, asserting that “[t]he trial court 

joint appendix documents do not limit the Administrative Record 

documents that may be cited on appeal,” respondents cited 

directly to pages of the administrative record that were not 

included in the joint appendix. Appellant agreed with this 

assertion in its reply brief, in which it also cited directly to the 

administrative record rather than the joint appendix, but did not 

lodge the administrative record with this court. Neither side 

referred to both “the volume and page number” of the 

administrative record, as required by Rule 8.204(a)(1)(C), nor did 

they provide parallel citations to the excerpts included in the 

joint appendix. 

This court has no obligation to perfect an inadequate 

record. To the contrary, the general rule is that “[f]ailure to 

provide an adequate record concerning an issue challenged on 

appeal requires that the issue be resolved against the 
18

appellants.” (Eureka Citizens for Responsible Government v. City 

of Eureka (2007) 147 Cal.App.4th 357, 366 (Eureka).) We exercise 

our discretion in favor of not applying that general rule here, 

however, because appellant belatedly lodged the administrative 

record on April 26, 2018. 

IV. Existing Facilities Exemption

A. Legal Principles

The existing facilities exemption is one of the categorical 

exemptions the Secretary of the Natural Resources Agency 

promulgated after determining that, as a class, existing facilities 

do not have a significant effect on the environment. (See 

Guidelines §§ 15300, 15301.) The Guidelines define “significant 

effect on the environment” as “a substantial, or potentially 

substantial, adverse change in any of the physical conditions 

within the area affected by the project including land, air, water, 

minerals, flora, fauna, ambient noise, and objects of historic or 

aesthetic significance.” (Guidelines, § 15382; see also Pub. 

Resources Code, § 21083, subd. (b).) Thus, in creating the 

exemption, the Secretary has found that existing facilities do not 

create substantial, adverse changes in their surrounding 

environments. 

The “existing facilities” class “consists of the operation, 

repair, maintenance, permitting, leasing, licensing, or minor 

alteration of existing public or private structures, facilities, 

mechanical equipment, or topographical features, involving 

negligible or no expansion of use beyond that existing at the time 

of the lead agency’s determination.” (Guidelines § 15301.) When 

determining whether the existing facilities exemption applies, 

“The key consideration is whether the project involves negligible 

or no expansion of an existing use.” (Ibid.) The Guidelines 
19

provide a non-exclusive list of “the types of projects which might 

fall within” the existing facilities exemption. (Ibid.) That list 

includes “Existing facilities of both investor and publicly-owned 

utilities used to provide electric power, natural gas, sewerage, or 

other public utility services.” (Guidelines § 15301, subd. (b).) 

B. Application to Nuclear Plants Generally

Appellant argues that the existing facilities exemption is 

not applicable to nuclear power plants generally. It first asserts 

that the exemption by its terms includes only utility structures, 

like wires and telephone poles, that “convey and distribute” 

power, not those that generate it. It further argues that the 

Secretary of the Natural Resources Agency neither intended nor 

had the authority to include nuclear power plants within the 

exemption for ‘existing structures’” because categorical 

exemptions include only “classes of projects that have been 

determined not to have a significant effect on the environment” 

(§ 21084, subd. (a)), and a nuclear power plant “by its de facto 

operation has a significant effect on the environment.” 

To support these arguments, appellant relies on legislative 

and administrative histories regarding CEQA and revisions to 

the Guidelines that were not before the Commission but of which 

the trial court took judicial notice.7 Respondents do the same to 

 

7 The trial court explained: “[W]hile Petitioners did not 

submit the legislative history of [Guidelines] section 15301 below, 

the Commission’s findings under section 15301 imply an 

interpretation of the regulation to include nuclear power plants. 

Petitioners argued during the administrative proceedings that 

section 15301 did not apply. However, in their opening and reply 

briefs, Petitioners argue a new legal theory why that is so. A 

sound argument can be made that Petitioners did not exhaust on 

the issue of whether the legislative history supports a conclusion 
20

refute appellant’s arguments. Neither side addresses how the 

trial court’s judicial notice of these documents affects our review 

of the decision of the Commission, which did not have the 

documents before it, nor do the parties request that we take 

judicial notice of the legislative or administrative history. 

“Extra-record evidence may be considered in quasi-judicial 

administrative mandamus proceedings only if the evidence was 

unavailable at the time of the hearing ‘in the exercise of 

reasonable diligence’ or if improperly excluded from the record.” 

(Eureka, supra, 147 Cal.App.4th at p. 367.) As in Eureka, 

“[a]ppellant[ ] made no showing in the trial court that either 

exception applied, and make[s] no such showing here.” (Ibid.) 

Hence, to the extent they rely on legislative and administrative 

history that was not before the Commission, arguments 

regarding the scope of the existing facilities exemption may not 

be raised.

Even were we to consider these arguments on their merits, 

we would not be persuaded. Appellant argues that “the Secretary 

was thinking of transmission towers carrying lines and similar 

structures that do not have a significant effect on the 

environment, not power generating facilities like the core reactors 

and water intakes at the nuclear plant.” It points to 

administrative history showing that the original list of example 

projects subject to the existing facilities exemption included 

 

section 15301 does not include nuclear power generating 

facilities. However, as an alternative analysis, assuming 

Petitioners did exhaust as to this argument, the court considers 

the legislative history and associated legal theory to determine 

the proper interpretation of section 15301. Petitioners’ request 

for judicial notice as to Exhibit 1, and their supplemental request 

as to Exhibits A to F are GRANTED.” 
21

“Existing facilities of both investor, and publicly owned utilities 

used to convey or distribute electric power, natural gas, sewage, 

etc.” (Emphasis added.) The current version of the exemption 

uses the word “provide” in place of the words “convey or 

distribute” but is otherwise substantively the same. (See 

Guidelines § 15301, subd. (b).) Appellant asserts that “no one, 

including major environmental groups, spoke against the change 

from convey and distribute to provide.” Thus, “based on the plain 

meaning of the words, it was clear to all that the exemption 

applied to transmission lines and the distribution of electricity . . 

. . it was clear to all that the amendment was not intended to be 

an exemption for nuclear power plants per se.” 

We disagree. The starting point for interpreting a statute 

or regulation is not its legislative or administrative history but 

rather the text of the statute or regulation itself. (Berkeley 

Hillside, supra, 60 Cal.4th at p. 1097.) We ascribe to words their 

usual meanings and avoid interpretations that render any 

language surplusage. (Ibid.) “When statutory language is clear, 

we must apply that language without indulging in 

interpretation.” (Brewer v. Patel (1993) 20 Cal.App.4th 1017, 

1021.) Here, the existing facilities exemption specifically states 

that it may be applied to “investor and publicly-owned utilities 

used to provide electric power . . . .” The Diablo Canyon plant is 

an investor-owned utility that generates electric power. The 

word “provide,” as commonly understood, plainly encompasses 

the generation of power in addition to its mere transmission. 

Moreover, the Guideline states that the list of examples is “not 

intended to be all-inclusive,” and emphasizes that the “key 

consideration” is not a facility’s purpose or use but rather 

“whether the project involves negligible or no expansion of an 
22

existing use.” (Guidelines, § 15301.) Appellant correctly observes 

that “‘exemption categories are not expanded or broadened 

beyond the reasonable scope of their statutory language’” (Save 

Our Carmel River v. Monterey Peninsula Water Management 

District (2006) 141 Cal.App.4th 677, 697 (Carmel River)), but the 

language here reasonably includes the plant. 

Appellant also argues that the Secretary lacks the 

authority to include nuclear power plants within the existing 

facilities exemption because section 21084 empowers him or her 

to exempt only activities that do not have a significant effect on 

the environment. Appellant further asserts that section 21084 

requires the Secretary to “make a finding that the listed classes 

of projects” in categorical exemptions “do not have a significant 

effect on the environment,” and no such finding can be made as to 

nuclear power plants due to “[l]egislative history and common 

sense.” These contentions also are not persusasive.

The “class” of projects at issue in the existing facilities 

exemption is not, as appellant’s argument suggests, nuclear 

power plants. Rather, it is existing facilities of all types. It was 

reasonable and within the scope of the Secretary’s authority to 

find that such facilities as a class do not have a significant effect 

on the environment. The continued operation, leasing, or “minor 

alteration” of facilities, “involving negligible or no expansion of 

use beyond that existing,” is unlikely to cause “a substantial 

adverse change in the physical conditions which exist in the area 

affected by the proposed project.” (Guidelines §§ 15002, subd. (g), 

15301.) 

C. Application in this Case

Appellant next contends that the Commission failed to 

undertake a proper legal analysis and make appropriate factual 
23

findings supporting the application of the existing facilities 

exemption. It claims that the Commission’s adoption of the staff 

report and subsequent issuance of a one-page notice of exemption 

“did not come close to meeting its burden because it simply 

accepted as correct a seven-page single-spaced letter from 

PG&E’s lawyer misstating the law of Berkeley Hillside and 

erroneously stating that as long as the operations for Diablo 

continued the same, then the Commission did not need to make 

other findings and could simply conclude that the exemption 

applied.” We disagree.

“The findings of an administrative agency can be informal 

so long as they serve the purposes of enabling the parties to 

determine whether and on what basis to appeal and enabling a 

reviewing court to determine the basis for the decision.

[Citation.] Findings may consist of adopting the 

recommendations in a staff report. [Citation.]” (Carmel River, 

supra, 141 Cal.App.4th at p. 701.) “[A]n agency’s finding that a 

particular proposed project comes within one of the exempt 

classes necessarily includes an implied finding that the project 

has no significant effect on the environment.” (Davidon Homes v. 

City of San Jose (1997) 54 Cal.App.4th 106, 115.) “On review, an 

agency’s categorical exemption determination will be affirmed if 

supported by substantial evidence that the project fell within the 

exempt category of projects.” (Ibid.) On the other hand, “[a]n 

agency abuses its discretion if there is no basis in the record for 

its determination that the project was exempt from CEQA.” (Id.

at p. 114.) 

Here, the record supports the Commission’s application of 

the existing facilities exemption. The project at issue involves 

the “leasing . . . of existing public or private structures, facilities, 
24

mechanical equipment, or topographical features, involving 

negligible or no expansion of use beyond that existing at the time 

of the lead agency’s determination.” (Guidelines, § 15301.) The 

plant further fits squarely into one of the listed examples, 

“investor and publicly-owned utilities used to provide electric 

power . . . .” (Guidelines, § 15301, subd. (b).) It is undisputed 

that PG&E has leased the same land from the Commission for 

nearly 50 years, and that the lease replacement maintains rather 

than expands the plant’s current operational capacity. The letter 

to which appellant refers contains only a brief outline of the 

project; more thorough descriptions appear elsewhere in the 

administrative record, most notably in the formal project 

description PG&E submitted for the Commission’s review. The 

detailed project descriptions support the Commission’s finding 

that the lease replacement will not expand the existing use of the 

plant. 

Appellant argues that Berkeley Hillside requires more 

analysis because it states that “an agency must weigh the 

evidence of environmental effects along with all the other 

evidence relevant to the unusual circumstances determination, 

and make a finding of fact.” (Berkeley Hillside, supra, 60 Cal.4th 

at pp. 1115-1116.) The relevant factual finding here is the 

Commission’s implied finding that there were no unusual 

circumstances. The Commission was not obligated to make 

specific findings as to each proffered unusual circumstance it 

rejected, or its bases for doing so.

Appellant also points to Save Our Big Trees v. City of Santa 

Cruz (2015) 241 Cal.App.4th 694, 705, which states, “‘[A 

categorical] exemption can be relied on only if a factual 

evaluation of the agency’s proposed activity reveals that it 
25

applies.’ (Muzzy Ranch Co. v. Solano County Airport Land Use 

Commission (2007) 41 Cal.4th 374, 386 [ ].)” Even if the phrase 

“factual evaluation” means “written findings by the agency,” 

more detailed findings are not required here. Although it is not 

clear from the court’s use of brackets, the underlying holding

from Muzzy Ranch states that an agency relying on the so-called 

“common sense exemption” to CEQA (Guidelines § 15061, subd. 

(b)(3)) must make “a factual evaluation.” (See Muzzy Ranch Co. 

v. Solano County Airport Land Use Commission, supra, 41 

Cal.4th at p. 386.) The Guidelines distinguish the “common 

sense” exemption from other categorical exemptions, including 

the existing facilities exemption. (Compare Guidelines § 15061, 

subds. (b)(2) & (b)(3).) Muzzy Ranch considered only the 

“common sense” exemption, so neither it nor Save Our Big Trees 

is authority for the proposition appellant advances here. (See 

Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 

641.)

V. Unusual Circumstances Exception 

A. Legal Principles

The primary dispute in this case concerns the 

Commission’s decision not to apply the unusual circumstances 

exception to the existing facilities exemption. The unusual 

circumstances exception properly is applied “where there is a 

reasonable possibility that the activity will have a significant 

effect on the environment due to unusual circumstances.” 

(Guidelines § 15300.2, subd. (c).) 

A project may have a significant effect on the environment 

if it “has the potential to degrade the quality of the environment,

. . . or to achieve short-term, to the disadvantage of long-term, 

environmental goals”; is “cumulatively considerable,” such that 
26

its incremental effects “are considerable when viewed in 

connection with the effects of past projects, the effects of other 

current projects, and the effects of probable future projects”; or 

“will cause substantial adverse effects on human beings, either 

directly or indirectly.” (§ 21083, subds. (b)(1)-(3).) “‘To decide 

whether a given project’s environmental effects are likely to be 

significant, the agency must use some measure of the 

environment’s state absent the project, a measure sometimes 

referred to as the “baseline” for environmental analysis.’ 

[Citation.]” (Citizens, supra, 202 Cal.App.4th at p. 557.) The 

baseline must reflect the existing conditions at the time of the 

analysis, even if those conditions deviate from the level of 

development or activity authorized at a site. (Id. at p. 558.)

Any significant effect must be attributable to unusual 

circumstances. Neither CEQA nor the Guidelines define “unusual 

circumstances.” (Walters, supra, 1 Cal.App.5th at p. 820; see 

generally Guidelines §§ 15350-15387 [Definitions].) “Whether a 

particular project presents circumstances that are unusual for 

projects in an exempt class is an essentially factual inquiry, ‘“ 

founded ‘on the application of the fact-finding tribunal’s 

experience with the mainsprings of human conduct.’”’ [Citation.]” 

(Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) 

The party challenging an agency’s finding that an 

exemption applies bears the burden of producing evidence 

supporting that claim. (Berkeley Hillside, supra, 60 Cal.4th at p. 

1105.) In the context of the unusual circumstances exception, 

that typically requires a two-part showing: “(1) ‘that the project 

has some feature that distinguishes it from others in the exempt 

class, such as its size or location’ and (2) that there is ‘a 

reasonable possibility of a significant effect [on the environment] 
27

due to that unusual circumstance.’ (Berkeley Hillside, supra, 60 

Cal.4th at p. 1105.)” (Respect Life South San Francisco v. City of 

South San Francisco (2017) 15 Cal.App.5th 449, 456, footnote 

omitted.) 

We review the agency’s factual determination as to whether 

there is a distinguishing feature—the first prong of the two-part 

showing—to see if it is supported by substantial evidence. 

(Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) Under this 

deferential standard of review, our role is different from the 

agency’s. (Ibid.) The agency must weigh the evidence before it 

and make a finding based upon the weight of the competing 

evidence. As a reviewing court, we do not reweigh the evidence.

Instead, we “must affirm [the agency’s] finding if there is any 

substantial evidence, contradicted or uncontradicted, to support 

it.” (Ibid.) We “resolv[e] all evidentiary conflicts in the agency’s 

favor and indulg[e] . . . all legitimate and reasonable inferences to 

uphold the agency’s finding. . . .” (Ibid.)

If there is substantial evidence of an unusual circumstance, 

we move to the second prong of the test—whether there is a 

reasonable possibility that the unusual circumstance will produce 

a significant effect on the environment. The agency must apply 

the “fair argument” standard in addressing this issue. (Berkeley 

Hillside, supra, 60 Cal.4th at p. 1103.) Under that standard, “‘an 

agency is merely supposed to look to see if the record shows 

substantial evidence of a fair argument that there may be a 

significant effect. [Citations.] In other words, the agency is not 

to weigh the evidence to come to its own conclusion about 

whether there will be a significant effect.’” (Id. at p. 1104.) An 

agency must find a “fair argument” if there is any substantial 

evidence to support that conclusion, even if there is competing 
28

substantial evidence in the record that the project will not have a 

significant environmental effect. (Id. at p. 1111.) Our review is 

“limited to determining whether the agency applied the standard 

‘in [the] manner required by law.’” (Id. at p. 1116.)

Alternatively, the party advocating for application of the 

unusual circumstances exception may make a heightened, oneelement showing: that the project will have a significant 

environmental effect. (Berkeley Hillside, supra, 60 Cal.4th at p. 

1105.) If a project certainly will have a significant environmental 

effect, that project necessarily presents unusual circumstances 

and the party does not need to separately establish that some 

feature of the project distinguishes it from others in the exempt 

class. (Ibid.) We apply the deferential substantial evidence 

review when reviewing this one-step alternative for proving the 

exception. (See Berkeley Hillside, supra, 60 Cal.4th at p. 1115-

1116.)

B. Unusual Circumstances

Appellant contends the Commission’s analysis was 

inadequate because it did not make findings regarding either of 

the two alternatives for establishing the applicability of the 

unusual circumstances exception. Indeed, neither the staff report 

the Commission adopted nor the single-page notice of exemption 

the Commission prepared includes findings as to whether the 

lease replacement project presented an unusual circumstance 

because of some characteristic that distinguished it from other 

projects in the exempt class. Nor did the Commission explicitly 

consider whether the project would, in fact, have a significant 

impact on the environment. Instead, the Commission essentially 

applied the “fair argument” standard to assess whether there was 

a reasonable possibility of a significant environmental effect from 
29

the project, without first concluding that the project presented an 

unusual circumstance. 

North Coast, supra, 227 Cal.App.4th 832, 871, also

considered whether there was a reasonable possibility of a 

significant effect on the environment due to unusual 

circumstances without first addressing whether there were any 

unusual circumstances. In that case, the appellate court found it 

unnecessary to address whether there were unusual 

circumstances because the exception failed under the second 

requirement, a reasonable possibility of a significant effect on the 

environment. (Ibid.) We agree with the approach followed in 

North Coast. We accordingly will assume, without deciding, that 

the lease replacement project presents one or more unusual 

circumstances.8 We nevertheless conclude that the Commission 

properly applied the fair argument standard in considering 

possible effects on the environment due to any unusual 

circumstances. 

C. Significant Effects

“Whether a fair argument can be made that the project 

may have a significant effect on the environment is to be 

determined by examining the whole record before the lead 

agency. Argument, speculation, unsubstantiated opinion or 

 

8 Appellant urges us to affirm the trial court’s finding that 

various characteristics of the plant, including its size, location, 

and storage of nuclear fuel, constituted unusual circumstances, 

because PG&E did not appeal it. (The trial court nonetheless 

found that the exception did not apply because there was no 

substantial evidence supporting appellant’s contention that the 

lease renewal project may have significant environmental 

effects.) As we already have explained, we review the findings 

made by the Commission, not those made by the trial court. 
30

narrative, evidence which is clearly erroneous or inaccurate, or 

evidence of social or economic impacts which do not contribute to 

or are not caused by physical impacts on the environment does 

not constitute substantial evidence.” (Guidelines, § 15384, subd. 

(a).) “Substantial evidence shall include facts, reasonable 

assumptions predicated upon facts, and expert opinion supported 

by facts.” (Guidelines, § 15384, subd. (b).)

1. Baseline

The existence and significance of an environmental effect 

must be measured from the “baseline,” or state of the 

environment absent the project. Appellant acknowledges that 

the relevant baseline consists of the existing conditions at the 

time the agency considers the project. (Citizens, supra, 202 

Cal.App.4th at pp. 557-559.) It contends, however, that the 

Commission applied a “flawed” baseline because it focused “on 

whether PG&E is making changes in the way it operates Diablo” 

rather than on the impacts that could arise from an additional 

seven years of plant operations, including “new evidence 

concerning earthquake faults, rising cancer rates, rising infant 

mortalities, increased marine life destruction and an expanding 

dead zone, cumulative reactor embrittlement and deterioration, 

potential devastation from tsunamis, and the cumulative impact 

from on-site storage of thousands of spent fuel rods containing 

highly-radioactive plutonium.” Appellant claims that these 

“increasing threats of significant environmental effects from 

plant deterioration” due to continued use cannot be ignored, and 

that it is “too draconian to say that business as usual is sufficient

and is the conclusive existing condition.” 

“Where a project involves ongoing operations or a 

continuation of past activity, the established levels of a particular 
31

use and the physical impacts thereof are considered to be part of 

the existing environmental baseline.” (North Coast, supra, 227 

Cal.App.4th at p. 872.) The baseline accordingly reflects “the 

current operative condition” of the area being assessed. (Citizens, 

supra, 202 Cal.App.4th at p. 558.) Thus, a “proposal to continue 

existing operations without change would generally have no 

cognizable impact under CEQA.” (North Coast, supra, 227 

Cal.App.4th at pp. 872-873.) As the appellate court explained in 

Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1315 (Bloom), 

“thousands of permits are renewed each year for the ongoing 

operation of regulated facilities, and we discern no legislative or 

regulatory directive to make each such renewal an occasion to 

examine past CEQA compliance. . . .” 

North Coast is particularly instructive. The project at issue 

in North Coast was similar to the lease replacement project here: 

it was a set of two-year renewal contracts “to continue the 

existing terms for water delivery” from the Central Valley 

Project. (Id. at p. 838.) Like Diablo Canyon, which is large in 

size and generates nearly ten percent of the state’s power, the 

Central Valley Project was “‘the nation’s largest water 

reclamation project and California’s largest water supplier.’ 

[Citation.]” (Id. at pp. 840.) The underlying contract in North 

Coast was a 40-year agreement whose start date preceded the 

enactment of CEQA. (See id. at p. 844.) Appellants there 

contended that renewing the water delivery contract would 

negatively affect nearby wildlife and contribute to increased salt 

and selenium levels in the soil and groundwater. (Id. at p. 873.) 

Yet the court found that the challenged activities “were clearly 

part of the existing environmental baseline for Water Districts’ 

ongoing operations,” such that “proof of a potential for adverse 
32

change in the environment from the conditions under the existing 

baseline is lacking.” (Id. at p. 874.) The same is true here; all of 

the purported environmental effects to which appellant points 

are incident to and part of the plant’s current baseline 

operations. 

Appellant attempts to distinguish North Coast on three 

factual grounds, none of which is persuasive.9 First, it points out 

that the project in North Coast previously underwent federal 

environmental review. (See North Coast, supra, 227 Cal.App.4th 

at p. 847.) The lack of a similar review in this case is not 

determinative. “How present conditions come to exist may 

interest enforcement agencies, but that is irrelevant to CEQA 

baseline determinations—even if it means preexisting 

development will escape environmental review under CEQA.” 

(Citizens, supra, 202 Cal.App.4th at p. 559.) 

Second, appellant emphasizes that the lease renewals in 

North Coast were for two years as opposed to the seven-year lease 

replacement at issue here. It asserts, without citation to record 

evidence or legal authority, that “[s]even years is a long time to 

ignore that people are dying from health issues and that the 

 

9 Bloom likewise is not materially distinguishable. There, 

an operating medical waste incineration facility that had never 

undergone environmental review sought to renew its operating 

permit. (Bloom, supra, 26 Cal.App.4th at pp. 1310-1311.) The 

agency responsible for issuing permits concluded the permit 

renewal was exempt from CEQA under the existing facilities 

exemption. (Id. at p. 1311.) The appellate court rejected the 

petitioner’s contentions that the absence of previous 

environmental review precluded application of the exemption. 

(See ibid.) The court emphasized that “the record contains no 

evidence of any significant change in its operations.” (Ibid.) The 

same is true in the instant case.
33

plant is deteriorating, and to cross fingers hoping that there will 

not be an earthquake, even a moderate one, that could cause a 

reactor meltdown and radioactive release that may be 

unstoppable.” Speculation that disaster is more likely to occur in 

seven years than two is not substantial evidence nor is it a 

sufficient basis on which to distinguish North Coast. As 

respondents point out, the existing facilities exemption does not 

include a time limit; neither does the unusual circumstances 

exception. 

Third, appellant argues that the “gravity of the 

environmental harm is much greater” here than in North Coast

and includes the deaths of billions of fish and the possibility of a 

radioactive plume descending to Los Angeles. This argument is 

unpersuasive because the North Coast decision did not turn on 

the degree of potential harm; the court considered the “large 

volume of CVP water” used and the effects on fish to be “part of 

the existing environmental baseline” without regard to their 

magnitude. 

Appellant also argues that we can and should “consider the 

increases and intensity of significant effects.” It points to 

Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 

Cal.App.4th 1170, 1196-1197 for the proposition that “nothing in 

the baseline concept excuses a lead agency from considering the 

potential environmental impacts of increases in the intensity or 

rate of use that may result from a project.” While this is an 

accurate statement of the law, it is not applicable here. The lease 

replacement is intended to maintain the current status quo at the 

plant. Appellant has not pointed to any evidence showing that 

the project will increase either the intensity or rate of use of the 

cooling system infrastructure. 
34

Finally, appellant contends that Citizens, supra, 202 

Cal.App.4th 549 “held that even when existing operations are 

being continued without change, future risks need to be 

considered when deciding the application of CEQA.” This is 

incorrect. In Citizens, the petitioner alleged defects in an EIR 

prepared in connection with a 30-year lease extension for a 

marine oil terminal that had been operating since 1905. In the 

factual portion of its opinion, the appellate court noted that the 

Commission ordered the EIR for the preexisting oil terminal after 

concluding that “future oil spills constituted a potentially 

significant environmental impact.” (Citizens, supra, 202 

Cal.App.4th at p. 555.) Appellant asserts the Commission was 

obligated to take the same approach in this case. The factual 

recitation regarding the Commission’s decision to prepare an EIR 

was not the holding of the case, however. “An appellate decision 

is not authority for everything said in the court’s opinion but only 

‘for the points actually involved and actually decided.’ 

[Citations.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) 

2. Reasonable Possibility of Significant 

Effect

Appellant argues that there are numerous unusual 

circumstances that may have a significant effect on the 

environment.10 We consider each of the claimed environmental 

 

10 Appellant additionally argues that four of these will have 

a significant effect. Our conclusion that none of the 

circumstances may have an effect necessarily forecloses the 

argument that these four—the plant’s “massive size and 

location,” “increases in cancer and infant mortality,” “killing 

billions of fish and creating a 47 mile dead zone for marine life,” 

and “storing thousands of spent fuel rods”—will have a 

significant environmental effect. 
35

impacts in turn. Our inquiry is whether the Commission 

properly applied the “fair argument” standard. (Berkeley 

Hillside, supra, 60 Cal.4th at p. 1103.) In other words, we 

consider whether it erroneously ignored substantial evidence that 

any of the alleged unusual circumstances may have a significant 

environmental effect.

a. Size 

Appellant asserts that the plant’s large size alone “supports 

a ‘fair argument’ that creates an exception to the exemption.” It 

does not clarify how the plant’s size—which will remain fixed 

after the lease replacement—is likely to cause “a substantial, or 

potentially substantial, adverse change in any of the physical 

conditions within the area affected by the project.” (Guidelines 

§ 15382.) Appellant also fails to point to any evidence in the 

record supporting its assertions about the size of the plant or the 

effect it may have. We accordingly do not find any error in the 

Commission’s conclusion.

b. Location

Appellant next contends that the plant’s location on the 

Pacific coast “will have a significant effect on marine life” during 

the term of the lease replacement because it “is creating a 

coastline dead zone stretching out 46 miles and covering roughly 

93 square miles.” However, the evidence appellant cites 

discusses the plant’s current impact on the environment rather 

than potential future effects due to the lease replacement. 

Indeed, appellant asserts that the plant “is creating a coastline 

dead zone.” These preexisting effects are part of the baseline, 

and appellant has not pointed to any substantial evidence 

indicating that they will become worse due to the lease 

replacement. 
36

Instead, appellant argues that the Commission “must 

consider the future reasonably foreseeable probable killing of 

marine life as well.” Appellant relies on Carmel River, supra, 141 

Cal.App.4th 677, which considered whether the transfer of a 

water credit was a project subject to the “replacement structure” 

categorical exemption (Guidelines § 15302), and whether the 

“responsible agency” (Guidelines § 15381) properly concluded 

that the transfer would not have direct or indirect effects on the 

environment (Guidelines § 15042). One of the responsible 

agency’s internal rules—not CEQA—required it to consider the 

cumulative impacts of water credit transfers on the water supply. 

(Carmel River, supra, 141 Cal.App.4th at p. 701.) The appellate 

court considered whether the responsible agency’s findings under 

its own rule were supported by substantial evidence and 

concluded they were not. (See id. at pp. 701, 705.) In making 

that finding, the appellate court observed that the Guidelines 

define the “cumulative impact from several projects” as “the 

change in the environment which results from the incremental 

impact of the project when added to other closely related past, 

present, and reasonably foreseeable probable future projects.” (Id.

at p. 704; Guidelines § 15355, subd. (b), emphasis added.) This 

definition is not relevant here, as appellant has not pointed to 

any “reasonably foreseeable probable future projects” that could 

combine with the lease replacement and result in a significant 

environmental effect. To the contrary, the record clearly shows 

that PG&E plans to close the plant when the lease replacement 

expires. 

c. Health Effects

Appellant next contends that the rates of cancer and infant 

mortality in the area surrounding the plant have increased since 
37

the plant opened in 1985, and that “the number of victims 

succumbing to cancer and the number of infants that die in the 

first year after birth will increase further” if the lease 

replacement is approved. Appellant points to the Mangano study 

and related presentation and asks, “What could be more 

significant than the loss of newborn life?” 

The Mangano study does not demonstrate a causative link 

between the plant’s operations and the observed adverse health 

outcomes. At best, it concludes that “elevated radioactivity in the 

environment—and hence in the diet—is a factor in the rising 

morbidity and mortality rates in affected populations living near 

Diablo Canyon.” But the evidence in this case demonstrates that 

any such effects, if they exist, are part of the baseline conditions. 

The record before the Commission contained no substantial 

evidence showing whether or how the lease replacement will 

cause these conditions to change. 

d. Marine Life 

In an argument similar to its location argument, appellant 

contends it is “patently obvious” that “processing and depositing 

2.5 billion gallons a day of superheated seawater back into the 

sea is creating a dead zone that is constantly expanding.” 

Appellant asserts that the plant is near the habitats of at least 

six endangered species, that “over 45 billion fish eggs and marine 

larvae have died over Diablo’s 32-year operational lifetime,” and 

that “[a]nother seven years of operating Diablo will increase the 

number of marine organisms killed by the plant to nearly 60 

billion deaths.” It further asserts that “[t]he cumulative, 

potentially exponential, impacts from seven more years of plant 

operations supports a fair argument of a significant effect 

supporting a comprehensive environmental review under CEQA.” 
38

Evidence of an “exponential” impact on surrounding marine 

life may well support a fair argument that the lease replacement 

will have a significant environmental effect. Yet appellant does 

not point to any such evidence in support of its sweeping claim. 

None of the evidence to which it points shows that the lease 

replacement will change or expand the plant’s current marine life 

impacts beyond the baseline conditions. Indeed, the sole cited 

evidence regarding endangered species—a public comment

regarding the plant’s effect on marine life—does not support its 

assertions regarding endangered species habitats at all. 

e. Fuel Rod Storage 

Appellant contends that the lease replacement will result 

in spent fuel rods being added to the already large collection of 

radioactive waste stored at the plant. It asserts that there will be 

approximately 4,300 spent fuel rods stored at the plant by 2025. 

“Should waste not be stored adequately,” appellant suggests, 

“radioactive substances could find their way into ground water, 

or contaminate other valuable resources or sites.” 

The baseline conditions at the plant include the storage of 

thousands of spent fuel rods. Appellant has not pointed to any 

substantial evidence supporting its speculation that the lease 

replacement would cause the fuel rods to be stored inadequately 

or otherwise increase the danger inherent in the ongoing on-site 

storage of nuclear waste. The record shows that the plant “has 

sufficient capacity to be able to take on all of the spent fuel rods 

that have been used so far and that will be used between now and 

the end of ’25.” 

Appellant points only to data in the Mangano report 

showing that Diablo Canyon was among the top five U.S. nuclear 

power plants in emitting “selected types of radioactivity” in 
39

“selected years.” Nothing connects these emissions to the storage 

of fuel rods. More importantly, nothing connects them to the 

lease replacement, or suggests that the lease replacement will 

alter these historic emissions levels. 

f. Embrittlement

At oral argument, appellant’s counsel emphasized that the 

plant’s reactor is “embrittled” and asserted that it will become 

more embrittled if the lease replacement moves forward, posing a 

danger of a nuclear meltdown. The record contains only two 

mentions of embrittlement. First, there is a written statement 

from S. David Freeman of Friends of the Earth, which originally 

was submitted to the Public Utility Commission in September 

2015. It asserts, without citing to any authority, that the plant’s 

reactors “have an embrittlement problem” that has “weakened 

the structure to the point that the NRC has flagged the problem” 

and would require “annealing” to repair. Second, there is a June 

27, 2016 letter to the Commission from Alliance for Nuclear 

Responsibility attorney John L. Geesman. That letter states, 

“Seismic risk is a particular concern for Diablo Canyon’s Unit 1 

reactor, which the Nuclear Regulatory Commission (‘NRC’) 

identified in 2013 as the third-most embrittled reactor in the 

United States.” That single sentence is followed by a footnote, 

which states, in its entirety, 

“http://pbadupws.nrc.gov/docs/ML1310/ML13108A336.

pdf.” The document to which that link points is a fifteen-page 

“Summary of the March 19, 2013, Public Meeting Webinar 

Regarding Palisades Nuclear Plant” prepared by the NRC in 

April 2013. Neither side has indicated where in the record that 

document can be found; our review did not locate it. 
40

Without citation to any evidence beyond this, appellant 

argued orally and in its briefs that such embrittlement “threatens 

the integrity of the entire reactor pressure vessel, which can 

result in a core meltdown,” and “increases the likelihood that . . . 

the reactor vessel, which contains the nuclear fuel rods, will 

rupture causing a catastrophic failure and major radiation 

release.” Appellant asserts that, “[u]nder these circumstances, 

seven years is a long time to be playing Radioactive Russian 

Roulette.” 

Two mentions of the undefined term “embrittlement” do 

not constitute substantial evidence of the possibility of a 

significant environmental effect. Appellant has not pointed to 

any evidence before the Commission showing that the lease 

replacement would worsen any embrittlement or make related 

problems more likely. Nor has it pointed to any authority 

indicating that the Commission is obliged to follow a hyperlink in 

a comment letter to locate substantive support for a public 

comment. Appellant’s contention that the evidence supported a 

fair argument accordingly must fail. 

g. Seismic Events

Appellant next contends that the risks of seismic events 

such as earthquakes and tsunamis “are real and could be 

devastating.” Appellant argues that the water intake 

infrastructure could be overwhelmed during a tsunami, causing a 

disaster akin to the meltdown of the Fukushima nuclear plant in 

Japan. It also argues that the plant’s location near the Shoreline 

and Hosgri faults, as well as the conflicting opinions regarding 

the likelihood of those two faults rupturing simultaneously, 

presents a fair argument that the lease replacement will have a 

significant environmental effect. We disagree.
41

The risk of seismic events is independent of the lease 

replacement. There is no evidence that the lease replacement 

will heighten the risk beyond what it already was at the time of 

the Commission’s decision. The earthquake specifications of the 

plant are not slated to change, and there is no evidence that 

continued operation of the cooling system will materially affect 

the fault lines in any way. The likelihood of a tsunami 

inundating the water intake system also will not be affected by 

the lease replacement. The conflicting opinions on the likelihood 

of a dual rupture of the Shoreline and Hosgri fault lines are not 

sufficient to demonstrate a possibility that the lease replacement 

will affect the seismic risk inherent at the site. 

h. Terrorist Attacks

Pointing to the 9/11 Commission report and research from 

2005, appellant contends that the plant is at risk of sustaining a 

terrorist attack, whether physical or cyber. Appellant speculates 

that terrorists could target the plant, “in an attempt to release 

radioactive contamination into adjacent communities.” If that 

were to happen, appellant continues, “many nearby residents 

would suffer from acute radiation poisoning (short term) and 

cancer (long term).” 

These concerns are not predicated on the lease 

replacement. Rather, they stem from the mere existence of 

radioactive materials at the plant. There is no evidence in the 

record that prospective terrorists will be more likely to target the 

plant as a result of the lease replacement, or that the lease 

replacement is likely to heighten the damage a terrorist attack 

would cause. Without some evidence connecting the lease 

replacement to the likelihood of an attack, appellant cannot make 

the requisite fair argument. 
42

i. Last Remaining Nuclear Plant

Appellant contends that the plant’s status as the sole 

operating nuclear plant in the state itself indicates that the lease 

replacement will have a significant environmental effect. 

However, appellant acknowledges that the plant has been the 

sole operating plant since June 2013; the lease replacement will 

not change that circumstance. The plant’s status thus was part 

of the existing conditions at the time of the Commission’s 2016 

decision.

j. Criminal Conviction of PG&E

Appellant asserts that PG&E was prosecuted for and 

convicted of “safety-related and agency obstruction felony counts 

related to its natural gas business.” Pointing to a federal court 

case that does not appear to have been part of the administrative 

record, appellant argues that the convictions demonstrate 

PG&E’s “careless disregard for public health and well-being” and 

“support[ ] a fair argument of skepticism that PG&E will safely 

manage Diablo without the guidance provided by CEQA review.” 

Appellant has not linked this ad hominem, extra-record 

attack on PG&E to the lease replacement. Nor does it 

demonstrate that the convictions may have any effect on the 

environment surrounding the plant. No fair argument can be 

made on this point.

VI. Public Trust Doctrine 

In addition to its CEQA challenge, appellant contends the 

Commission violated the public trust doctrine when it approved 

the lease replacement. It contends that the Commission erred 

“because an improper ‘baseline’ was applied, [and] the staff never 

performed the ‘factual evaluation’ that was necessary to make a 

decision on public trust.” We disagree.
43

The public trust doctrine has been part of California law 

since the state’s admission to the Union in 1850. (Citizens, supra, 

202 Cal.App.4th at p. 570.) At that time, the state “acquired 

ownership of all tidelands and the beds of all inland navigable 

waters within its borders.” (Ibid.) The state now “owns these 

tidelands and submerged lands as trustee for public purposes, 

and a public easement and servitude exists over these lands for 

those purposes.” (Ibid.) It has an obligation to regulate the use 

of these lands for the general benefit of the community. (Ibid.) 

The “‘traditional triad’ of public trust uses includes navigation, 

commerce, and fishing on navigable waters,” though recreation 

and environmental preservation also have been recognized as 

valid public trust uses. (Id. at p. 571.) The Commission is 

authorized to lease public trust lands for these limited purposes.

The staff report adopted by the Commission explicitly 

analyzed the public trust doctrine. The report 

noted that the State Water Resources Control Board had adopted 

a new policy on once-through cooling, which would require 

modifications to the plant if it were to continue operating after 

2025. The report concluded that the new policy “appropriately 

regulates” the impacts to marine life associated with oncethrough cooling. The report also noted that the Joint Proposal 

addressed “policy concerns associated with the shutdown of the 

DCPP in 2025, including replacement energy . . ., workforce 

transition, and community impacts.” It ultimately concluded that 

the lease replacement “will not significantly interfere with the 

trusts upon which [public] lands are held or substantially impair 

the public rights to navigation, fisheries, or other Public Trust 

needs and values at this time, at this location, and for the 
44

limited-term lease beginning June 28, 2016 and ending August 

26, 2025.” 

“There is no set ‘procedural matrix’ for determining state 

compliance with the public trust doctrine.” (San Francisco 

Baykeeper, Inc. v. California State Lands Commission (2015) 242 

Cal.App.4th 202, 234.) Our review is limited to determining 

whether the Commission’s ruling was arbitrary, capricious, or 

entirely lacking in evidentiary support, or whether it failed to 

follow appropriate procedures. (County of Orange v. Heim (1973) 

30 Cal.App.3d 694, 718-719.) We do not reweigh the evidence, 

substitute our judgment for that of the Commission, or inquire 

into the soundness of the Commission’s reasoning. (Id. at p. 721.) 

Applying this deferential review, we find no error by the 

Commission.

Appellant claims the Commission failed to perform a 

requisite “factual evaluation.” Without citing any authority, it 

suggests a proper evaluation would have included “the 

cumulative environmental impacts from the continued operation 

of Diablo,” and would have found that the lease replacement 

would interfere with the public interests in “waterborne 

commerce, fisheries, recreation and most importantly, habitat 

preservation.” The Commission considered the facts before it, 

citing record evidence while balancing the public trust rights to 

navigation, fisheries, and environmental protection against the 

public need for efficient electrical production. This review was 

not arbitrary, capricious, or procedurally irregular. Appellant 

acknowledges that the public trust doctrine operates 

independently of CEQA; it thus is unclear why the alleged 

baseline error in the CEQA analysis undermines the otherwise 

facially adequate public trust doctrine analysis. 
45

DISPOSITION 

The judgment of the trial court is affirmed. Respondents 

are awarded their costs on appeal. 

CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.