a) Conclusory Allegations Made Without Reference to the Record or the Law Fail to Meet Section 1732's Requirements
The rehearing applications' residual claims string together several generic allegations that make no references to the Decision, the final EIR, or to the formal responses to the comments contained in that document. Together, the two rehearing applications refer only once to legal authority, when CBD cites the Legislative intent section of CEQA, Public Resources Code sections 21002 and 21002.1, subdivision (b).
For example, CBD's rehearing application alleges error because: "Specifically, the EIR/EIS failed to adequately address many significant impacts of the EITP as required by CEQA." (CBD Rehrg. App., p. 5.) CBD supports this allegation by listing, at pages five and six, grounds that:
include, but are not limited to: inaccurately defining the "whole of the action" for purposes of analysis; failure to adequately disclose and analyze the significant impacts to the biological resources of the Ivanpah Valley that will be caused by expansion of transmission capacity in the EITP and by the "project as a whole" including all connected actions; failure to consider the significant growth inducing impacts of the EITP; omission from the analysis of significant cumulative actions; failure to adequately address alternatives to the EITP that would avoid or substantially reduce impacts to the environment; and failure to consider minimization and mitigation measures to reduce impacts that cannot be avoided.
The only elaboration provided for these claims is: (i) a footnote stating that the Mountain Pass Lateral, discussed above, is a "significant cumulative action[,]" and (ii) a claim that the EIR was required to evaluate all of the renewable generation facilities that were factored into the need analysis. (CBD Rehrg. App., pp. 4, 6.)
SCE asserts that such claims do not meet the statutory requirements that apply to rehearing applications because they are impermissibly vague. BrightSource and First Solar make a similar claim. Section 1732 requires a rehearing application:
to set forth specifically the ground or grounds on which the applicant considers the decision or order to be unlawful. No corporation or person shall in any court urge or rely on any ground not so set forth in the application.
In addition, our Rules also require a rehearing application to state the specific grounds on which it alleges error, and to "make specific references to the record or law." (Cal. Code Regs., tit. 20, § 16.1, subd. (c).)
We interpret these requirements strictly. By giving us an opportunity to correct error before a matter reaches the courts, the statue seeks to avoid unnecessary litigation. "The purpose of the rule of exhaustion of administrative remedies is to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review. The decisionmaking body is entitled to learn the contentions of interested parties before litigation is instituted." (Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal. App. 4th 225, 243, quoting Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 384 (internal punctuation and citations omitted).)
Thus, the filing of a rehearing application is not merely a technical requirement that a party must satisfy before it proceeds to file a petition for review in court. A rehearing application must give us an opportunity to correct error and avoid litigation. To do so, it must contain specific allegations (including references to applicable law and the record) so we are not "forced to guess ... what the actual basis for an allegation of error might be." (Authority to Institute a Rate Stabilization Plan
[D.02-03-063] (2002) __ Cal.P.U.C. 3d __ at p. 4 (slip op.), 2000 Cal. PUC LEXIS 1102 at *6.) "Simply identifying a legal principle or argument, without explaining why it applies in the present circumstances, does not meet the requirements of section 1732." (Procedures to Implement the Digital Infrastructure and Competition Act [D.10-07-050] (2010) __ Cal.P.U.C. 3d __ at p. 19 (slip op.), 2010 Cal. PUC LEXIS 298 at *37.) Courts have confirmed the importance of this requirement by finding that matters not raised in a rehearing application "are not properly before th[e] court." (Northern Cal. Assn. to Preserve Bodega Head v. Public Utilities Com. (1964) 61 Cal.2d 126, 129, fn. 1a.) Further, CEQA prevents parties from challenging an EIR unless it has presented its concerns to the relevant agency in advance. (Pub. Resources Code § 21177, subd. (a).)
To comply with section 1732, it is therefore not enough to list the aspects of the EIR that CBD believes are in error. For example, the EIR's discussion of biological and cumulative impacts, each of which are identified in CBD's rehearing application are 111 and 103 pages long, respectively. Moreover, when we prepare an EIR, we are entitled to weigh the environmental record, determine how best to disclose environmental information in an EIR, and to reach our own conclusions on environmental issues. In doing so, we are not required to achieve perfection but simply to undertake an adequate and complete environmental review. (Guidelines, § 15151.) Our conclusions on environmental questions are further not in error simply because "a different conclusion would have been equally or more reasonable." (Marin Municipal Water Dist. v. KG Land Cal. Corp. (1991) 235 Cal.App.3d 1652, 1660.) Nor will our conclusions be in error simply because other determinations, that we did not make, can be supported by the record. (Cf., Karlson v. Camarillo (1980) 100 Cal.App.3d 789, 805.) An environmental document is legally adequate if there is "any substantial evidence in the record to support the findings." (Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188, 198 (original emphasis).)
Error is therefore demonstrated by showing that the evidence supporting a specific conclusion in the EIR or the Decision is insufficient, or that we otherwise did not proceed as required by law. To make such a showing a party "must lay out the evidence favorable to the other side and show why it is lacking." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) By making generic, unsupported allegations of error, the rehearing applications filed by CBD and WWP do none of these things.
It is particularly improper for a party to state in its rehearing application that error is alleged on all of the grounds contained in a list of pleadings incorporated by reference. A cross-reference to another document does not "set forth" its claims in a rehearing application. (Pub. Util. Code, § 1732.) The briefs, reply briefs, and other pleadings filed in this proceeding contain arguments on numerous issues, including policy questions that are no longer at issue in the rehearing phase.47 At this time the main question before us is not the one addressed in earlier pleadings: how to apply our expertise and discretion to dispose of SCE's application. We are determining whether the particular disposition contained in the Decision is legally correct. We should not be forced to guess which parts of several pleadings written before the Decision was issued might still apply to D.10-12-052. (Cf., Authority to Institute a Rate Stabilization Plan [D.02-03-063], supra, at p. 4 (slip op.), LEXIS at *6.)
CBD supports its attempt to incorporate documents by reference by claiming that the final EIR and the Decision did not "cure" alleged problems identified by CBD. (CBD Application at p. 6.) However, error is demonstrated by showing that the analysis contained in the Decision or the EIR does not meet applicable legal standards, not by looking to whether we adopted CBD's or any other party's position. To simply claim, as CBD does, that any previously-raised issue that was not decided in a party's favor can be incorporated by reference into a rehearing, without any further discussion-and thereby preserved for court review-defeats the purpose of exhaustion statutes like section 1732. CBD is effectively seeking to bypass the required rehearing process and proceed directly to court on every issue on which it did not prevail.
47 We note that CBD's rehearing application does not allege error based on the arguments raised in its Comment Letter on the EIR.
