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Duke Energy (now Dynergy) applied to renew its NPDES permit for its Moss Landing Power Plant (MLPP). The Central Coast Regional Water Quality Control Board (Regional Board) issued a revised NPDES permit, determining that the MLPP cooling water intake system represented the “best technology available” (BTA), as required under the Clean Water Act. Voices of the Wetlands (plaintiff) filed an administrative appeal with the State Water Resources Control Board (State Board) seeking reconsideration of the permit. The plaintiff’s appeal was rejected. Plaintiff then filed an administrative mandamus petition on grounds that the Regional Board’s BTA determination was not supported by substantial evidence. The Superior Court ordered an interlocutory remand to the Regional Board, thus allowing the Regional Board to reconsider its BTA determination and to supplement its findings. Based on this additional evidence, the Superior Court upheld the Regional Board’s BTA determination.

The plaintiff appealed, arguing that the trial court should not have permitted interlocutory remand. The Sixth District Court of Appeal upheld the trial court’s use of interlocutory remand. The California Supreme Court agreed. The Court held that use of remand is permitted as long as the reconsideration fully comports with due process. In a concurring opinion, Justices Werdegar and Cantil-Sakauye expressed their opinions that because this holding did not involve a CEQA challenge it should not be read to apply to CEQA litigation.

The Court also determined that it was proper for the Regional Board to base its BTA determination on a finding that the costs of alternative cooling technologies for the powerplant were wholly disproportionate to the anticipated environmental benefits. Lastly, the Court concluded that the Superior Court had jurisdiction over the administrative mandamus petition because the Warren-Alquist Act only directs that certain decisions made by the California Energy Commission (CEC) are within the exclusive jurisdiction of the Supreme Court; here, the decision at issue was made by the Regional Board not CEC.

Key Point:
The fact that only Justices Werdegar and Cantil-Sakauye felt compelled to qualify the holding’s application within the context of CEQA litigation may suggest that the other Justices do not agree with this distinction. The use of interlocutory remand in CEQA litigation could have significant impacts on the frequency of petitioners obtaining attorneys’ fee awards. In light of this decision, we anticipate that it is only a matter of time before the Court directly addresses the propriety of using interlocutory remand in CEQA litigation.

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