IN THE

Court of Appeal
FOR THE

STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
__________
Californians for Green Nuclear Power, Petitioner

v.

Public Utilities Commission of the State of California, Respondent.

__________
APPEAL FROM THE CALIFORNIA PUBLIC UTILITIES COMMISSION’S
DECISION 18-01-022
APPROVING THE RETIREMENT OF DIABLO CANYON NUCLEAR POWER PLANT
__________
PETITION FOR WRIT OF REVIEW AND
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT THEREOF

__________

A CTIUM LLP
MIKE GATTO (S.B. NO. 232674)
5419 HOLLYWOOD BLVD., SUITE C-356
LOS ANGELES, CA 90027
TELEPHONE: (323) 819-0300
E-MAIL: MIKE@ACTIUMLLP.COM

Attorney for Petitioner Californians for Green Nuclear Power

1
 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
__________
Californians for Green Nuclear Power, Petitioner

v.

Public Utilities Commission of the State of California, Respondent.

__________
APPEAL FROM THE CALIFORNIA PUBLIC UTILITIES COMMISSION’S
DECISION 18-01-022
APPROVING THE RETIREMENT OF DIABLO CANYON NUCLEAR POWER PLANT
__________
PETITION FOR WRIT OF REVIEW
__________

TO THE HONORABLE JUSTICES OF THE SECOND

APPELLATE DISTRICT, DIVISION SIX:

Pursuant to section 1756 of the Public Utilities Code and Rule

8.496 of the California Rules of Court, petitioner Californians for Green

Nuclear Power (CGNP) respectfully submits this petition for writ of

review of Decision 18-01-022 of the Public Utilities Commission

(“Commission” or “PUC”), issued 11 January 2018, which approved the

“Retirement of Diablo Canyon Nuclear Power Plant.”

2
 CERTIFICATE OF INTERESTED ENTITIES OR PARTIES

(Cal. Rules of Court, Rule 8.208)

Petitioner Californians for Green Nuclear Power (CGNP) is a

California non-profit corporation. No entity or person has an

ownership interest in CGNP, and CGNP knows of no person or entity

with a financial or other interest in the outcome of this proceeding

(other than the parties themselves) that must be disclosed under Rule

8.208 of the California Rules of Court.

Respectfully submitted,

MIKE GATTO
ACTIUM LLP

By
Mike Gatto
Attorney for Petitioner
CGNP

3
 TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................4
TABLE OF AUTHORITIES .............................................................5
INTRODUCTION AND STATEMENT OF THE CASE .................7
PETITION FOR WRIT OF REVIEW ..............................................9
A. Parties .................................................................9
B. Jurisdiction....................................................... 11
C. Venue ................................................................ 12
D. Authenticity of Exhibits .................................. 12
E. Factual and Procedural Background .............. 12
F. Standard of Review and Basis for Relief ........ 17
G. Prayer for Relief ............................................... 18
VERIFICATION ............................................................................ 20
MEMORANDUM OF POINTS AND AUTHORITIES ................ 21
I. ISSUES PRESENTED .............................................. 21
II. ARGUMENT .............................................................. 22
A. The PUC Violated Due Process Principles and
Its Own Rules When It Changed the Focus of
the Proceeding Midway Through. ................... 22
B. PG&E Must Obtain a Coastal Development
Permit Before the PUC Can Approve the
“Retirement” of Diablo Canyon. ...................... 26
C. The Commission Violated Its Statutory
Mandate to Consider the GHG Consequences of
Each Action. ..................................................... 30
III. CONCLUSION ........................................................... 32
CERTIFICATE OF COMPLIANCE.............................................. 34

4
 TABLE OF AUTHORITIES

Cases

Gray v. Begley (2010) 182 Cal.App.4th 1509, 1521 ..................................... 10

La Fe, Inc. v. County of Los Angeles (1999) 73 Cal.App.4th

231 ...................................................................................................................... 27

Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d

402, 410............................................................................................................. 29

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los

Angeles (2012) 55 Cal.4th 783 .................................................................... 27

Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99 ..................... 17

San Pablo Bay Pipeline Co. v. PUC (2015), 243 Cal.App.4th

295, 310............................................................................................................. 17

Southern California Edison Co. v. PUC (2006) 140

Cal.App.4th 1085, 1095-1096 ................................................................ 11, 23

Stanson v. San Diego Coast Regional Com. (1980) 101

Cal.App.3d 38, 47-49 ..................................................................................... 28

Statutes

Cal. Civ. Code § 3539 .......................................................................................... 29

Cal. Pub. Util. § 1701(a)..................................................................................... 22

Cal. Pub. Util. § 1756...................................................................................... 2, 11

Cal. Pub. Util. § 1757(a)..................................................................................... 17

Cal. Pub. Util. § 1760.......................................................................................... 17

Cal. Pub. Util. § 1801.......................................................................................... 24

5
Cal. Pub. Util. § 400 ............................................................................................ 30

Cal. Pub. Util. § 451 ............................................................................................ 26

Cal. Pub. Util. § 454.51(a) ................................................................................. 30

Pub. Res. Code § 30106 ...................................................................................... 26

Pub. Res. Code § 30111 ...................................................................................... 29

Pub. Res. Code § 30600 ...................................................................................... 26

Pub. Res. Code § 30624(a) ................................................................................. 29

Other Authorities

33 CFR 165.1155 .................................................................................................. 13

6
 INTRODUCTION AND STATEMENT OF THE CASE
By this verified petition, petitioner CGNP seeks to remedy

several due-process, statutory, and internal rules violations the PUC

committed in D. 18-01-022. Namely:

• The PUC must follow the Commission’s Rules of Practice and

Procedure1 in its proceedings. These rules are required by

statute, and many of their requirements are grounded in due

process. For example, at the outset of a matter, the PUC must

clearly delineate the scope the proceedings will cover. If, during a

proceeding, a party or the PUC wishes to re-scope a proceeding,

they must follow the procedures for doing so. Furthermore, as in

courts of law, there are deadlines in the PUC for amending

pleadings, and formalities required for rulings. Here, PG&E

attempted to re-scope the proceeding in its rebuttal testimony. It

did not file the requisite motion to amend its application, nor was

its request timely. Surprisingly, the Commission countenanced

1 Any use of the word “Rule” throughout refers to these Rules of

Practice and Procedure, available in Volume 2 of Petitioner’s Appendix,
Exhibit 24.

7
 this, violating its own rules and the petitioner’s due-process

rights.

• The PUC must follow the laws defining the jurisdiction of other

agencies. It does not exist in a vacuum. In the coastal zone,

California law requires a Coastal Development Permit to issue

before any act that could result in a change of intensity of land

use, water use, or coastal access. The challenged decision

“approv[ed] the “retirement of Diablo Canyon Nuclear Power

Plant”, which is located beachside. Retiring a nuclear power

plant on the shore is a change in the intensity of land use in the

coastal zone. Moreover, because of the vast amounts of sea water

used for cooling Diablo, retiring it is also surely a change in

intensity of the use of water. Furthermore, the concomitant

changes in security will result in a change in the intensity of

coastal access, since the number of members of the public who

may access sensitive coastal habitat will surely rise. This

proceeding was therefore premature. Applicant PG&E must first

obtain a Coastal Development Permit. The PUC may not pre-

ordain coastal outcomes by setting in motion what is a logical and

8
 factual certainty. Such is the sole province of the Coastal

Commission within the coastal zone.

• California law requires the PUC to reduce Greenhouse Gases

(GHGs) and to consider the GHG ramifications of each decision.

Oddly, the challenged decision stated plainly that the record was

insufficient to determine whether retiring Diablo would result in

greater GHG emissions, but then approved retirement and

punted the GHG determination to a future proceeding. This is

akin to sentencing a defendant in one proceeding, but stating

that the required fact-finding will occur in the future. This too is

a violation of law and due process.

Review is required to enforce the Commission’s own rules of

practice and procedure, to protect the petitioner’s and ratepayers’

constitutional and statutory rights, and to address the broader

implications of this decision on coastal development and the

environment. These issues make granting this petition essential.

PETITION FOR WRIT OF REVIEW

A. Parties

1. CGNP is a California non-profit corporation with a mission

of protecting the environment and California ratepayers. See 1 PA 11 at

9
00181-001832. The PUC accepted petitioner CGNP as an intervenor in

the proceeding on 5 April 2017, affording CGNP party status. Id; 1 PA

4 at 00097. As a successful intervenor, CGNP has the same appellate

rights as an original party. Gray v. Begley (2010) 182 Cal.App.4th 1509,

1521.

2. Respondent PUC is the state agency charged with

regulating public utilities in California. It derives its powers from the

statutes and constitution of the state of California.

3. Pacific Gas and Electric Corporation (“PG&E”) is a

California public utility.

4. Fifty-two other parties intervened in this proceeding, and

some presented positions that could be considered adverse to CGNP.

See 2 PA 23 at 00586-00589. Each will therefore be treated as a “real

party in interest” for purposes of California Rule of Court 8.496(a)(2).

5. The PUC’s (theoretically distinct) “Office of Ratepayer

Advocates” further participated as a party in the proceedings below,

2 Citations to Petitioner’s Appendix of Exhibits in Support of

Petition for Writ of Review are noted as “Volume Number - PA - Exhibit
Number at Page Number(s).” The page number never repeats, so the
rest of the information appears merely for the ease of locating whole
exhibits.

10
and will therefore also be served and considered a real party in

interest. See id.

B. Jurisdiction

6. Petitioner submits this petition pursuant to Utilities Code

section 1756, which provides that “any aggrieved party may petition for

a writ of review in the Court of Appeal for the purpose of having the

lawfulness of the original [PUC] order or decision inquired into and

determined.” CGNP met the prerequisite of section 1756 after it filed

an application for rehearing D.18-01-022 and the PUC denied that

application on 1 October 2018. See 2 PA 21 at 00562 and 2 PA 22 at

00574.

7. A writ pursuant to section 1756 differs from an ordinary

writ proceeding in that it is the substantive equivalent of an appeal

from a final order of a trial court. Because review by extraordinary

writ is the sole means for correcting a PUC decision by judicial review,

the Court has no discretion to deny a timely filed petition if it appears

meritorious. Southern California Edison Co. v. PUC (2006) 140

Cal.App.4th 1085, 1095-1096.

11
 C. Venue

8. Section 1756(d) provides that venue shall be in the judicial

district in which the petitioner resides or has its principal place of

business. CGNP is a California non-profit corporation, with its

principal place of business at 1375 East Grand Avenue, Suite 103-523,

Arroyo Grande, California 93420. (CGNP’s Articles of Incorporation

listed 109 Gardenia Way, in Nipomo, California 93444 as its original

address.) Using either of those addresses, venue is appropriate within

Division Six of the Second Appellate District.

D. Authenticity of Exhibits

9. All supporting exhibits are separately organized and

consecutively numbered in the accompanying appendix. The exhibits

are true copies of the originals on file with the Commission. The

exhibits are incorporated by reference as though fully set forth herein.

E. Factual and Procedural Background

10. On 11 August 2016, PG&E filed an Application before the

PUC “for approval of the retirement of Diablo Canyon Power Plant.”

Diablo Canyon is a nuclear power plant located on the shore in San

Luis Obispo. 2 PA 18 at 00401. It cools its reactors by accessing billions

of gallons of seawater daily. This has created a special temperature

12
zone near Diablo, since its discharged water is warmed by 22 degrees

Fahrenheit. 1 PA 5 at 00125-00142. Because it is a nuclear power

plant, access to the 1.13 miles of coastline near Diablo Canyon is

severely restricted. See 33 CFR 165.1155.

11. PG&E’s Application noted that “Diablo Canyon’s GHG-free

energy avoids seven to eight million metric tons per year of GHG

emissions”, but nevertheless proposed shuttering Diablo, with the

implication that it was doing so at least partly due to the influence of

so-called “nuclear safety advocacy” groups. 1 PA 2 at 00016-00020.

PG&E proposed shuttering Diablo even though it had submitted sworn

testimony to the PUC six years previously that stated running Diablo

until 2045 was by far in the best financial interest of the ratepayers

and the best environmental option for the planet. 1 PA 1, passim.

12. Recognizing that California’s statutory scheme for

regulating utilities requires the PUC to reduce GHGs, PG&E proposed

a proceeding in which the PUC would consider how and mandate that

PG&E procure “GHG-free resources... in three tranches over a fifteen-

year period” to replace Diablo. 1 PA 2 000024. The ALJ approved this

framework for the proceedings. See 1 PA 6 at 00151-00152.

13
 13. The Commission issued its Scoping Ruling on 18

November 2016. As it sounds, a scoping ruling sets the range and

extent of issues covered in a proceeding, to provide the parties and the

public certainty on the same. See Rule 7.3, 2 PA 24 at 00650. The PUC

stated that the proceeding would cover the “Retirement of Diablo

Canyon”, “Proposed Replacement Procurement” (i.e., how the state

would replace its power, consistent with the state’s GHG-reduction

mandates), “Proposed Ratemaking and Cost Allocation Issues”, and a

variety of other issues. 1 PA 7 at 00154-00160. The Scoping Ruling

was consistent with California law, which requires the PUC to consider

the GHG ramifications of its decisions. Also, pursuant to Rule 1.12(a),

once the Scoping Ruling issued, the time to amend an application

ended. 2 PA 24 at 00615.

14. Despite this, in rebuttal testimony served 17 March

2017, PG&E substantively altered the focus of the proceeding. PG&E’s

executives proclaimed that PG&E was withdrawing certain aspects of

its application; that PG&E believed those aspects would best be

considered in a future proceeding; and that PG&E would not be

spending any more time on those subjects and considered the topic

closed. 1 PA 8 at 00171-00172. PG&E also issued a press release,

14
announcing that it (as opposed to the Commission) had changed the

focus of the proceeding. The press release stated that PG&E had made

“[p]rocedural [m]odifications” to the matter. 1 PA 12 at 00185.3 In

response to the confusion this caused, the Administrative Law Judge

handling the proceeding e-mailed the parties, stating (incorrectly) that

the items PG&E had lopped off this proceeding were still within the

scope, but that PG&E would not be required to amend its application,

and that the schedule for the proceeding would remain the same. 1 PA

12 at 00185.

15. On 6 April 2017, CGNP filed a timely protest to this turn of

events, using the proper procedures outlined in the Commission’s rules.

CGNP requested a five-month extension to submit testimony and for

motion practice, given that the focus of the proceeding had changed so

substantially. 1 PA 12 at 00184-00189. Furthermore, because the

requested approval (retiring Diablo Canyon) would result in a change of

use intensity of the land and water in the coastal zone, on 30 March

2017, CGNP filed a motion to stay the proceedings until PG&E

3 Original available at https://www.pge.com/en_US/safety/how-the-

system-works/diablo-canyon-power-plant/news-and-articles/pge-makes-
procedural-modifications-to-diablo-canyon-joint-proposal.page

15
obtained the requisite Coastal Development Permit. 1 PA 10 at 00176.

See also 1 PA 15 at 00252.

16. The ALJ allowed the proceeding to continue, and on 8

November 2017, issued his Proposed Decision approving the retirement

of Diablo Canyon. 2 PA 18 at 00398. Shortly thereafter, the parties

filed their comments on the Proposed Decision, and CGNP continued to

protest the various deficiencies. 2 PA 19 at 00469. On 11 January

2018, the Commission issued its final decision. After acknowledging

the deficiency of the record on GHG matters, the final decision added a

sentence, quite telling, which is underlined in the original and below:

[T]he larger question remains about what, if anything,

should be done here to ensure that the retirement of Diablo
Canyon will not result in an increase in GHG emissions.
The answer to that is that we simply cannot tell based on
the record in this proceeding. It is the intent of the
Commission to avoid any increase in greenhouse gas
emissions resulting from the closure of Diablo Canyon.
Given the time between now and 2024 and 2025, the rapid
changes in the California electricity market, and the
growth of renewable generation and CCAs, however, it is
not clear based on the limited record in this proceeding
what level of GHG-free procurement (if any) may be needed
to offset the retirement of Diablo Canyon. 2 PA 20 at
00505-00596.

17. On 17 January 2018, CGNP timely filed its

Application for Rehearing Decision 18.01.022. 2 PA 21 at 00562. Its

16
Application for Rehearing comprised the issues considered here. Id.

On 27 September 2018, the Commission issued its “Order Modifying

Decision 18-01-022 and Denying Rehearing of the Decision, As

Modified.” 2 PA 21 at 00574. This writ petition followed.

F. Standard of Review and Basis for Relief

18. Utilities Code Section 1757(a) establishes the scope of

review in this matter. The Court must overturn the PUC if it

determines that it acted in excess of its powers or jurisdiction, that it

did not proceed in a manner required by law, or if its decision violated

the federal or state constitution. An agency that fails to follow its own

“required procedures” has not proceeded in the manner required by

law. Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99.

19. When a party challenges a PUC decision on constitutional

grounds, the Court exercises “independent judgment on the law and

facts, and the findings or conclusions . . . material to the constitutional

question.” Cal. Pub. Util. §1760.

20. The PUC is not entitled to deference on questions of its

jurisdiction. San Pablo Bay Pipeline Co. v. PUC (2015), 243

Cal.App.4th 295, 310.

17
 G. Prayer for Relief

For the foregoing reasons and those set forth in the

accompanying Memorandum of Points and Authorities, Petitioner

CGNP respectfully requests that the Court:

1. Issue a Writ of Review to Respondent California Public

Utilities Commission with respect to Decision 18-01-022, commanding

it to certify the records and proceedings so that the Court may inquire

into them;

2. After reviewing the records and proceedings in this action,

that the Court vacate and set aside Decision 18-01-022 and remand this

matter to the Commission for proceedings consistent with the Court’s

ruling;

18
3. Award the petitioner costs and fees on appeal; and

4. Grant such other relief that may be just and proper.

Dated: October 22, 2018

MIKE GATTO
ACTIUM LLP

By
Mike Gatto
Attorney for Petitioner
CGNP

19
 VERIFICATION
I, William Gloege, am the Chairman of the Board of petitioner

CGNP, and have participated in the representation of CGNP in the

California Public Utilities Commission proceeding at issue in this

petition. I have personal knowledge that the matters stated in the

foregoing petition for writ of review are true.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed this 22nd day of October 2018, at Santa Maria,

California.

_____________________________
William Gloege
Californians for Green Nuclear Power

20
 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
__________
Californians for Green Nuclear Power, Petitioner

v.

Public Utilities Commission of the State of California, Respondent.

__________
APPEAL FROM THE CALIFORNIA PUBLIC UTILITIES COMMISSION’S
DECISION 18-01-022
APPROVING THE RETIREMENT OF DIABLO CANYON NUCLEAR POWER PLANT
__________
MEMORANDUM OF POINTS AND AUTHORITIES
__________

I. ISSUES PRESENTED

A. Did the PUC violate its rules and the parties’ due-process

rights when it approved PG&E’s unilateral re-scoping of this

proceeding, midway through, and after the deadlines for such

amendments had passed?

B. Is either a change in intensity of land use, water use, or

coastal access logically an inevitable consequence of the retirement of

Diablo Canyon, which would thus necessitate the Coastal Commission

first to grant a Coastal Development Permit?

C. Did the PUC comply with California law that requires each

proceeding and decision to consider its GHG repercussions, by claiming

21
that such consequences will be considered in a separate, future

proceeding?

II. ARGUMENT

A. The PUC Violated Due Process Principles and Its

Own Rules When It Changed the Focus of the
Proceeding Midway Through.

The PUC failed to proceed in the manner required by law when it

allowed PG&E to re-scope this proceeding after the deadline for doing

so. Utilities Code section 1701(a) requires all PUC proceedings to be

governed by the Rules of Practice and Procedure adopted by the

Commission. It further states that no informality shall invalidate any

rule adopted by the Commission. Section 1701.1 sets the statutory

requirement for scoping proceedings, and Rule 7.3(a) states, “[a]t or

after the prehearing conference (if one is held), the assigned

Commissioner shall issue the scoping memo for the proceeding, which

shall determine the . . . issues to be addressed.” 2 PA 24 at 00650.

Since Commission authority over utilities is broad, because proceedings

are often very complex and detailed, and because large numbers of

proceedings occur at any given time, often with identical parties – this

requirement is certainly grounded in due process. Parties must be able

to know at the outset precisely what a given proceeding does and does

not cover. See 1 PA 3 at 00083.

22
 Procedural due process is also the reason why the Commission’s

rules impose strict limitations on when applicant parties can amend an

application. So as not to change the issues covered midway through a

proceeding, Rule 1.12(a) states “An amendment to an application . . .

must be filed prior to the issuance of the scoping memo.” It further

defines an amendment as any “document that makes a substantive

change to a previously filed document.” Id. at 00615.

Late alterations to the substance of a PUC proceeding are

improper if they prejudice the parties. Southern California Edison Co.

v. PUC (2006) 140 Cal.App.4th 1085, 1106. That case is instructive. It

too, was a complex case with dozens of parties and tens of thousands of

pages of testimony. There too, a party offered a new proposal for the

topics the proceeding should cover. See id. There too, the ALJ

informally notified the parties the changes via e-mail. Id. The Court

there reversed the PUC, and this Court should too.

PG&E’s testimony was a late-filed motion to amend in disguise.

But motions must be made with papers styled as such and formally

submitted to the ALJ for approval. Here, it is clear why PG&E did not

do so. The deadline for filing an amendment to its application had long

since expired. And clearly, alterations as substantial as the ones

23
PG&E proposed – for example, asking the Commission to procrastinate

on its statutory mandate to consider the GHG consequences of its

decision – were “a substantive change to a previously filed document”

triggering Rule 1.12(a).

PG&E’s actions also usurped the Commission’s authority. Rule

7.3(a) states that “the assigned Commissioner . . . shall determine

the . . . issues addressed.” 2 PA 24 at 00650. A party can request to

amend its application and can request a change in scope, but only the

Commission has authority to act on such, and in a formal ruling

initiated by motion. An applicant and regulated entity does not get to

“call the shots” in a proceeding.

These changes prejudiced the petitioner. CGNP is a non-profit,

with no staff. See 1 PA 11 at 00181-00183. It is composed of volunteer

scientists, educated at top universities, considered to be specialists in

their fields who participated in this proceeding under the PUC’s

intervenor program, which is designed to get the perspective of parties

like CGNP. 2 PA 25 at 00709; See Cal. Pub. Util. § 1801 et seq.

This PUC docket was a vast legal proceeding, which required all

parties to marshal and plan for the deployment of their legal resources.

CGNP submitted hundreds of pages of testimony months before the

24
ALJ approved PG&E’s re-scoping of this proceeding. 2 PA 25 at 00708-

00845. That change in scope, midway through, prejudiced CGNP.

With no foreknowledge of PG&E’s actions, CGNP directed extensive

expert time, attention, and its limited legal resources (75 of 138 pages)

focusing on all of the requisite topics in the original application and

scoping memo, which were then moved to the future proceeding. See

id. Had the parties known conclusively they wouldn’t need to work on

the late-withdrawn topics and tranches, resources could have been re-

allocated to the new foci. This includes the substantial scientific work,

complex calculations, and review of published scientific papers that

formed all of CGNP’s testimony. See e.g., 1 PA 13 at 00195.

The odd procedure prejudiced CGNP’s fact-finding too. On 29

March 2017, PG&E cited its unilateral action as one of the rationales

for denying CGNP's Data Request Number 9, regarding PG&E’s

reliance on other power plants and storage. 1 PA 9 at 00173. So

pretending that the other parties could simply continue addressing the

other issues was disingenuous. And prejudicing the parties even

further, the ALJ even denied CGNP’s request for additional time for

researching, submitting testimony for, and responding to the new

dynamic. 1 PA 14 at 00250. The simple way to remedy this would have

25
been to grant CGNP’s modest request for a five-month extension –

which oddly the ALJ denied.

Finally, CGNP’s members are ratepayers, and its mission

includes protecting ratepayers. All rates must be just and reasonable,

and all commission proceedings must follow state law. See Cal. Pub.

Util. § 451. It is unreasonable to approve a major change in the status

quo without following the proper procedures and making sure that

GHG emissions will not increase. The manner in which this proceeding

proceeded was peculiar, deficient, and prejudicial, and this Court must

remedy it.

B. PG&E Must Obtain a Coastal Development Permit

Before the PUC Can Approve the “Retirement” of
Diablo Canyon.

The PUC erred by intruding on the jurisdiction of the Coastal

Commission and ignoring the statutes governing permitting in the

Coastal Zone. Public Resources Code section 30600 requires that

parties “wishing to perform or undertake any development in the

coastal zone . . . shall obtain a coastal development permit.” Pub. Res.

Code § 30106 defines “development,” and requires a Coastal

Development Permit to issue before any act (including government

action) that could result in either the “change in . . . intensity of use of

26
land” or “change in the intensity of use of water, or of access thereto”.

The coastal-development permit must be issued first, before an

undertaking like the one contemplated here. See Pacific Palisades

Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783.

In Pacific Palisades Bowl, our Supreme Court ruled that a city properly

halted a multi-stage approval process because the applicant there had

not first obtained a coastal-development permit. This might be a

“cumbersome and inefficient system, mandating multiple hearings . . .

before” other agencies can act, but it is the law. See id. at 815

(Kennard, J., dissenting).

Moreover, “’[d]evelopment’ is not restricted to physical alteration

of the land.” Id. at 796. Indeed, the Coastal Development Permit

requirements are construed broadly, encompassing almost any act –

including governmental approvals – that could result in a change of

use intensity in coastal zones. In La Fe, Inc. v. County of Los Angeles

(1999) 73 Cal.App.4th 231 , a Coastal Development Permit was

required before an applicant could obtain a mere lot-line adjustment,

because such an adjustment could, in the future, change the intensity

of use in the Coastal Zone. Similarly, in Stanson v. San Diego Coast

Regional Com. (1980) 101 Cal.App.3d 38, 47-49, the approval of the

27
conversion of part of the space in an existing structure from storage to

a restaurant required a Coastal Development Permit, since such an

approval would logically, in the future, “irreversably” change the

intensity of a coastal use.

Here, the very caption of the challenged decision is “DECISION

APPROVING RETIREMENT OF DIABLO CANYON NUCLEAR

POWER PLANT” and the PUC did just that. Retiring a nuclear power

plant on the shore is a change in the intensity of land use in the coastal

zone. Moreover, because of the vast amounts of sea water used for

cooling, retiring a nuclear power plant (i.e., shutting it off) will

certainly result in a change in intensity of the use of water. Retiring a

nuclear power plant, and the concomitant changes in security, are also

a change in the intensity of access, since the number of members of the

public who may access sensitive coastal habitat will change from

almost-none to theoretically unlimited.

The notion that PG&E should have first obtained a Coastal

Development Permit is further buttressed by other parts of the

statutory scheme. The Coastal Act expressly makes utilities like PG&E

and governmental entities like the PUC subject to its supreme and

primary jurisdiction in the Coastal Zone. See Pub. Res. Code § 30111.

28
And as for whether this type of approval or project is somehow special,

the doctrine of expressio unius est exclusio alterius shows that it is not.

“Under the familiar rule of construction . . . where exceptions to a

general rule are specified by statute, other exceptions are not to be

implied or presumed.” Mutual Life Ins. Co. v. City of Los Angeles (1990)

50 Cal.3d 402, 410. The Coastal Act expressly lists certain

developments that require no Coastal Development Permit at the

outset. They include things like emergencies, or non-emergency

renovations to single-family dwellings. See Pub. Res. Code § 30624(a).

By no means can PG&E stretch these exclusions to cover shutting off a

nuclear-power plant. The Legislature has expressed the only limits to

the Coastal Development Permit rule, and retiring a power plant that

uses billions of gallons of seawater daily is not among them.

Time cannot confirm a void act. See Cal. Civ. Code § 3539. If the

PUC’s approval is allowed to stand, time will have confirmed its

usurpation of the Coastal Commission’s authority. This is because the

PUC’s approval of closing Diablo is outcome-determinative. The

Coastal Commission has no authority to order a power plant to be re-

started or the continued operation of a utility asset. Therefore, once

the PUC approves Diablo’s “retirement” – nothing else can happen but

29
to actually close it and shut it off. The status quo for coastal use will

have changed, making a “change in intensity” a fait accompli.

Thus, the proper course here would be to obtain a Coastal

Development Permit first, and the PUC erred by not staying this

proceeding until PG&E obtained the same.

C. The Commission Violated Its Statutory Mandate to

Consider the GHG Consequences of Each Action.

It is axiomatic that California’s statutory scheme for regulating utilities,

the Public Utilities Code, reflects a strong legislative predilection for GHG

reduction. At least fifty-five sections create obligations for the PUC to

consider the GHG consequences of its actions and reduce GHGs wherever

possible. Section 454.51(a) requires the Commission to “rely upon zero

carbon-emitting resources to the maximum extent reasonable”, and

Section 400 requires the Commission to “Take into account . . .

pollution reduction . . . using renewable and nonrenewable technologies

with zero or lowest feasible emissions of greenhouse gases.” Section

701(c) further requires the Commission to consider the “costs and

benefits to the environment, including air quality” when making

decisions. These statutory mandates require the Commission to

reduce pollution in all it does, in every decision, and every official act.

30
 The Commission’s decision ignored those mandates. The

Commission’s own words state plainly that it was unsure about the

GHG ramifications of Diablo’s retirement. It then guiltily added a

statement on its “intent.” Alas, intent is not enough to fulfill the

Commission’s statutory mandates. It allowed “retirement” despite

having no alternative, which is clearly not “relying on zero-carbon . . .

resources to the maximum extent.” Thus, the Commission has

substituted its obligation to reduce GHGs for the non-committal intent

to do so, entering no findings that GHGs can be reduced by replacing

Diablo Canyon’s carbon-free electricity.

If the future proceeding determines available replacements would

increase overall emissions, degrade reliability, increase cost, or deliver

inadequate generation capacity – it would be too late to correct this

final Decision, especially considering that PG&E used this Decision as

the basis to halt its federal re-licensing application.4 Of course, there

is never a guarantee that any future proceeding will occur or continue.

Moreover, the terms of three of the five PUC commissioners expire

4 https://www.federalregister.gov/documents/2018/04/23/2018-
08366/pacific-gas-and-electric-company-diablo-canyon-power-plant-
unit-nos-1-and-2-withdrawal-of-license
31
shortly,5 making it possible that the new majority of the Commission

decides to pursue other priorities.

Diablo Canyon is by far California’s largest, reliable, zero-carbon-

emitting energy source, producing 10% of its total electricity. 2 PA 21

at 00570. Rain or shine, it provides more energy than all of California’s

solar installations combined – the equivalent of five Hoover Dams. 2 PA

25 at 00825. As the PUC itself noted, there is currently no plan for

replacing Diablo that is consistent with California’s GHG goals. Thus,

the PUC erred by moving those critical considerations to a future

proceeding – but if it insists on doing so, it must make this decision

contingent on that future one. To do anything else would be the

regulatory equivalent of passing sentence in one proceeding, but

putting off the required factual determinations on guilt for a future

one. The PUC’s approval of Diablo’s retirement was premature.

III. CONCLUSION

For the foregoing reasons, Californians for Green Nuclear Power

respectfully requests that the Court issue a Writ of Review to

Respondent California Public Utilities Commission with respect to

Decision 18-01-022, commanding it to certify to this Court the records

5 http://www.cpuc.ca.gov/commissioners/
32
and proceedings in this proceeding so that the Court may inquire into

them; after reviewing the records and proceedings in this action, that

the Court vacate and set aside the Commission’s Decision and remand

this matter to the Commission for proceedings consistent with the

Court’s rulings; and grant such other relief that may be just and

proper.

Dated: October 22, 2018

MIKE GATTO
ACTIUM LLP

By
Mike Gatto
Attorney for Petitioner
CGNP

33
 CERTIFICATE OF COMPLIANCE
WITH RULE 8.204

I certify that, pursuant to Rule 8.204(c)(1) of the California Rules

of Court, the attached Petition for Writ of Review has a typeface of 13

points or more, and contains 5,549 words, as determined by a computer

word count.

Dated: October 22, 2018

MIKE GATTO
ACTIUM LLP

By
Mike Gatto
Attorney for Petitioner
CGNP

34