Complaint,Petition: WASTE MANAGEMENT OF ALAMEDA COUNTY, INC. VS. CITY AND COUNTY OF SAN FRANCISCO ET AL(RPI 170.6 challenge of Goldsmith)

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DENNIS J. HERRERA, State Bar #139669
City Attorney

WAYNE K. SNODGRASS, State Bar #148137
TARA M. STEELEY, State Bar #231775
Deputy City Attorneys

City Hall, Room 234

1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4682

Telephone: (415) 554-4655
Facsimile: (415) 554-4699
E-Mail: tara.stecley@sfgov.org

Attorneys for Defendants and Respondents

CITY AND COUNTY OF SAN FRANCISCO;

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

09/16/2015
Clerk of the Court
BY-WILLIAM TRUPEK

Deputy Clerk

THE SAN FRANCISCO BOARD OF SUPERVISORS;

THE SAN FRANCISCO DEPARTMENT OF THE

ENVIRONMENT; and DEBORAH O. RAPHAEL, in her official capacity
as Director of the San Francisco Department of the Environment

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION

WASTE MANAGEMENT OF ALAMEDA
COUNTY, INC., a California corporation,

Plaintiff and Petitioner,
vs.

CITY AND COUNTY OF SAN
FRANCISCO: THE SAN FRANCISCO
BOARD OF SUPERVISORS; THE SAN
FRANCISCO DEPARTMENT OF THE
ENVIRONMENT; DEBORAH O.
RAPHAEL, in her official capacity as the

Director of the San Francisco Department of
the Environment; and DOES 1-100, inclusive,

Defendants and Respondents.

RECOLOGY, INC., a California corporation;

and RECOLOGY SAN FRANCISCO, a
California Corporation,

Real Parties In Interest.

Case No. CPF-15-514396

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS AND RESPONDENTS’
DEMURRER TO PLAINTIFF’S VERIFIED
FIRST AMENDED PETITION FOR WRIT OF
MANDATE AND COMPLAINT FOR
DECLARATORY RELIEF

Reservation No.: 09160224-01
Hearing Date:
Hearing Judge:
Time:

Place:

February 24, 2016

Hon. Emest H. Goldsmith
9:30 a.m.

Dept. 302

Date Original Action Filed: July 21, 2015
Date Amended Action Filed: August 17, 2015
Trial Date: None set
Attached Documents: Notice of Hearing

Demurrer
Request for Judicial Notice

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........ccccecscssesssessesseeseeeeesesseeseesseesssnsesssseeseessesessssessseaesansesanenesersesseseese ii
INTRODUCTION
I THE CITY ENTERS INTO THE 1987 AGREEMENTS.
Il. AS THE RESULT OF A COMPETITIVE SELECTION PROCESS, THE CITY
AWARDS TWO CONTRACTS TO RECOLOGY IN 2011
Ill. | WMAC CHALLENGES THE 2011 CONTRACTS BUT ITS LAWSUIT IS
DISMISSED AFTER THE CONTRACTS ARE TERMINATED. .....0......0-0-ce+ 5
IV. | THE CITY CONDUCTS CEQA REVIEW OF RECOLOGY’S BACKUP
IPROPOSA Ts iaisvasdscadedadotstatatabahanihdadulndodatebatabatshatdhdadudedatstalatabebabahdndedadedadalatalahalanabondh 5
V. THE BOARD ENACTS ORDINANCE NO. 8-14 TO MAKE CLEAR THAT
THE CITY’S COMPETITIVE BIDDING REQUIREMENTS DO NOT APPLY
TO CONTRACTS RESULTING FROM THE COMPETITIVE SELECTION
PROCES Sxtatabancletetatatetot baba ratanaintedadetotetotabatarapataaen
VI. THE CITY ENTERS INTO A NEW LANDFILL DISPOSAL AGREEMENT
WITH RECOLOGY, .......ccceceeeeeesseetseesesseeseenneenes
ARGUMENT
I. SAN FRANCISCO’S CONTRACTING AND PROCUREMENT
ORDINANCE DOES NOT APPLY TO THE LANDFILL DISPOSAL
AGREEMENT....
A. Ordinance 8.14 Forecloses WMAC’s Claim That The Landfill Disposal
Agreement Violates Chapter 21 oo... cece ceeseeeeneseenesesneseenssesneaenees 8
B. Ordinance 8.14 Forecloses WMAC’s Claim That The RFP Process
Violated Chapter 21
Cc. Chapter 21 Did Not Apply To The RFP Proce:
Of Ordinance 8.14.
I. WMAC’S CLAIM BASED ON CHARTER SECTION 9.118(b) AND
SECTION 5 OF THE 1932 ORDINANCE FAILS AS A MATTER OF LAW. ..12
III. © WMAC’S CLIMATE ACTION PLAN CLAIM FAILS AS A MATTER OF
MGA Wiitalohetobabcedbdadodedodeladatatahsbandhdodulotadetebatabebahahdhdododadotalabalebabobebdudadadadadatalolabetababa’ 14

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TABLE OF AUTHORITIES
State Cases
Callet v. Alioto
(1930) 2 LOCALS tet aL deletadebetebatehabaldedadedatadatedabelabehabdedededededelabsbebalebaheadndadelalalatalabel abate 10

ALN. and Frances C. Berger Foundation
(2013) 218 Cal.App.4th 37 .

Hunt v. Superior Court
(1999) 21 Cal. 4th 984 oo .ceccsesssecssesssesssecssecssecsnecsseesssessssssessnesesesssssesecesscsuecessesseesueesseesssesneesnes 8,9

McDonald v. Stockton Met. Transit Dist.
(1973) 36 Cal. App.3d 436 o..ceccceseecsesscessesseeeseeesessesssssessiessessiesseserssanteanesaneeaneeseeseeseenuesnee 12

People ex rel. Younger v. County of El Dorado
(1971) 5 Cal.3d 480 oe ecceecesseeseceseesecsseeesesesnecececsesasseanensesesneassesussesecsnenssesesseaenseeeseeeeee 2,8, 15

Plotkin v. Sajahtera, Inc.
(2003) 106 Cal.App.4th 953

SN Sands Corp. v. City and County of San Franci:

(2008) 167 Cal.App.4th 185 ...ccecccccccceseee
St. Croix v. Superior Ct.

(2014) 228 Cal. App.4th 434 woe ccessecsessnessessesseessesseessnessuessessnesanesseeaeeseeseesensseessee 13
Stuart v. City & County of San Francisco

(1986) 174 Cal.App.3 201 coccccscscscssscsssssssssescsssesecesssssecsssesescsesesesesesssscesevssscsnsescecsessseseseceeeseneee 13
Western Security Bank v. Superior Court

(1997) 15 Cal. 4th, 232... escsecssecssesssesssessneesssssnessscsssssessseesseessesseesssessssessessnsesnsesnssansesnesseessnesnee 10
State Statutes & Codes
Cal. Code Civ. Proc. § L085 oot eceesesessesessesresesecsesesseeseacsueseauesesecassnerseucaesneaeensecsacaeaneeeeeean 8
Cal. Code Civ. Proc. § LO85(a) oe eccececssenesessseneseseseeceesnenesnseessseneneacsescanseesesnsseseeeeaeaeaeecaeaeaeenen 12

Cal. Code Civ. Proc. § 1086 0... eeceececeeeesecceeseseseeceresesecseseeeceseensacaeeresessesnseceeestssaeetsicsnserseeseessese®

Cal. Pub. Resources Code §§ 2100, et. seg. (CEQA) .ececescssesesesseesresesiesssreseenessseeeanerseneae passim

San Francisco Statutes, Codes & Ordinances
S.F. Admin. Code § 12.02.00... .ccceccccscesceesescscseeeseeeseesesescsesesescaracacsnseseeesseseseesseasavacseaeeeseeeeneeneee 11

S.F. Admin. Code, Ch. 21

S.F. Admin. Code § 21.01

S.F. Admin. Code § 21.02

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S.F. Admin. Code § 21.02(i) sssssssssesssiesssnssnsssssssusssssstnstietsisasisesetsinssisestsesisaseseese 7,9

S.F. Admin. Code § 21.02(m) 0c cceecccscesseeseseseeesesnsesnseensescseneseneaeseensesneeseeeaeseneeeaceeaseveseneeeaeee 7,9
S.F. Admin. Code § 21.02(S) .e.cccccescccscecesesessceesnessscscsseseseseesesseasseseeeesuesesuesesesseseassacseeneeeereae 7,9
S.F. Admin. Code § 21 Doieccecseceescessnesseesesseessseessseessesseessenssesseessessnsansesesessssssecssecsses 10
S.F. Admin. Code § 21.5 ..c.ccccceccccsssesssessssssesesesesesecesessecesseseseseseseaesesesesesseneaeaeseseaeseaeseeeseseseeseeeneee ll
S.F. Admin. Code, App. 1 (1932 Ordinance) oo... eesesseseeresesecassvesestssestsecenesesesaeeses passim
S.F. Admin. Code, App. 1, § S..cccccecescessssecsesesnssseesscsnsarseseeesscsnssseecsesessvesscsecacsnaneenssenesaseses passim
S.F. BOS Ord. No. 8-14 occ cesses cessesssesaessessessesssessessessesseesaesaresaeeanesaeeseeeseeenee

S.F. BOS Res. No. 322-11
HPs Chretien 2114 Folate tart sberasslevevetarstatetoratarassscareaedatvatetatstaberassadeaedarsaefatorafstasstamsrvevarsretstaretar 12, 13

S.F. Charter § 3.105(i) ..

S.F. Charter § 9.118 c.ccscccssssssssesssesssesssesssessneesseesneessessessesssnessnessesssusssessasssarssseeesaseaeseseesersses

S.F. Charter § 9.118(b) ...ceecceccsccsecsssesssscsseseesssesseseesesesscseenesessessaeseseesesaceeasesecaesnseeeessesesacanenenee 12,13
S.F. Env. Code, ch. 9 (Climate Action Plan) 0.0... ccceceeeeseeeeeeneeetesesesesereseseeceteneteeseeneenesenes passim
Other Authorities

S.F. Admin. Code R. & Reg. § 21.5(8) .o.cecececeeeessesnseseeesrssesneesnsneerssesnesesnenseeeesmeaneeerseesneaets ll

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INTRODUCTION

This case presents three questions of law. First, does the City have a clear, present and
ministerial duty under its competitive bidding ordinance—San Francisco Administrative Code,
Chapter 21—1o set aside a Landfill Disposal Agreement it made with Real Party in Interest Recology
San Francisco (“Recology”), and negotiate a substitute contract with Petitioner Waste Management of
Alameda County, Inc. (“WMAC”)? Second, does Section 9.118 of the City’s Charter or Section 5 of
the City’s 1932 Ordinance governing refuse disposal require that the Landfill Disposal Agreement be
approved by the City’s Board of Supervisors? Third, does the City’s Climate Action Plan require the
City to resolve disputes concerning greenhouse gas emissions in WMAC’s favor?

The answer to each question is no. Accordingly, the City’s demurrer to all three of WMAC’s
claims for writ of mandate in its First Amended Petition (“Petition”) should be sustained without leave
to amend.

Each of these claims secks only prospective relief: an order requiring the City to rescind the
Landfill Disposal Agreement and negotiate a replacement contract with WMAC. Accordingly,
WMAC’s claims are governed by the law that exists today. Under that law—which the Board of
Supervisors recently clarified—agreements resulting from the RFP at the heart of Petitioner’s
complaint “are not . . . contracts for ‘services’” subject to the competitive bidding requirements of
Chapter 21. (Pet. Ex. Jat p. 7.) Accordingly, WMAC cannot successfully contend that the Landfill
Disposal Agreement violates those requirements. See Part I(A), infra.

Nor can WMAC contend that the RFP process that led to the Landfill Disposal Agreement
violates Chapter 21. Even if Chapter 21 had previously applied to the RFP (which it did not), the
Board’s clarification of Chapter 21 forecloses WMAC’s claim. The Board has decided that its
clarification of Chapter 21 “shall apply retroactively to actions taken by City officials or City agencies
or entities in connection with [the RFP process].” (Pet. Ex. J at p. 7.) The Board had plenary power to
make this determination, because the only rights affected by the clarification were statutory, and such
rights can always be modified retroactively. See Part I(B), infra. In addition, the RFP process has
never been governed by Chapter 21. Chapter 21’s competitive bidding requirements apply only to

contracts to furnish the City with goods and services, and therefore do not apply to contracts to provide
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disposal services to City residents. See Part I(C), infra. For all these reasons, the Landfill Disposal
Agreement does not violate Chapter 21.

Nor did the Landfill Disposal Agreement need to be approved by the Board of Supervisors.
Under Section 9.118 of the City Charter, Board approval is required only for contracts lasting more
than ten years or requiring expenditures of more than $10 million. The Landfill Disposal Agreement
meets neither prerequisite. Its term is nine years and it requires no expenditure of City money.
Similarly, Section 5 of the 1932 Ordinance requires only that the Board approve the persons and
disposal methods for removal of City waste. The Board has already done so. Any interpretation of
Section 5 that required Board approval of a// refuse disposal contracts—instead of just approval of
persons and methods—would conflict with the City’s Charter, which limits the Board’s contract
approval power to the agreements specified therein—i.e., contracts lasting more than ten years or
involving the expenditure of more than $10 million. See Part II, infra.

Finally, WMAC has not—and cannot—allege that the City has violated any clear, present or
ministerial duty with respect to the City’s Climate Action Plan. The Climate Action Plan requires that
all City departments “consider the effect of all decisions and activities within their jurisdiction on
greenhouse gas emissions.” (S.F. Env. Code § 902(b).) The City has done so as part of its
environmental review of the agreement with Recology. (Request for Judicial Notice Ex. A [Final
Negative Declaration] at pp. 68-71; Pet. Ex. GG.) WMAC disagrees with the conclusions reached by
the City, but WMAC is not entitled to a writ merely because WMAC wishes the City had exercised its
discretion in a different way. A “writ will not lie to control discretion conferred upon a public officer
or agency.” (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.) See Part IIT,

infra.
FACTUAL BACKGROUND

I. THE CITY ENTERS INTO THE 1987 AGREEMENTS.

The Landfill Disposal Agreement is a successor to two agreements (collectively, “the 1987
Agreements”), both entered in 1987, that remain in effect today and govern the disposal and
transportation of municipal solid waste generated in San Francisco. (Pet. fff 1-3.). The first of these

agreements is a Waste Disposal Agreement (1987 Waste Disposal Agreement”) between the City and
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predecessors to both WMAC and Recology! that designates WMAC’s Altamont Landfill in
Livermore, California, as the exclusive site for disposal of the City’s municipal solid waste, and grants
the City’s residents and Recology the right to dispose of up to 15 million tons of solid waste at the
Altamont Landfill. (Pet. €¥ 1-3.)

At the same time, the City and Recology—in its capacity as the licensed refuse collection and
hauling company in the City—entered into an Agreement In Facilitation Of Waste Disposal
Agreement (the “1987 Facilitation Agreement”) by which Recology agreed to operate a transfer
station in San Francisco and deliver waste by truck to the Altamont Landfill. (Pet. ¥ 1.). In exchange,
the City’s Department of Public Works agreed to recommend to the Rate Board that Recology be
allowed to recover its disposal and transportation costs in the collection rates Recology is permitted to

charge residential customers in San Francisco.” Cd.)

IL. AS THE RESULT OF A COMPETITIVE SELECTION PROCESS, THE CITY
AWARDS TWO CONTRACTS TO RECOLOGY IN 2011.

The 15 million tons of disposal capacity allowed under the 1987 Waste Disposal Agreement
will likely be exhausted in the first quarter of 2016. (Pet. J 1.). In anticipation of that occurrence,
DOE issued a Request For Proposals For Landfill Disposal Capacity (“the RFP”) in February 2009.
(Pet. § 2.). The RFP included a number of criteria concerning the transportation of waste to the
disposal site. Among other things, the proposals had to “detail efforts to minimize and mitigate
climate impacts.” (Pet. Ex. A at p. 4 (emphasis in original). The RFP included “transportation

emissions” as among the “climate impacts” to be minimized, and stated:
Issues that need to be addressed as part of the search for disposal alternatives include
the lowest feasible transportation emissions, which can be achieved through a
combination of minimizing the transportation distance (i.e., picking sites that are in
close proximity to San Francisco) and making sure that the method of transportation
used for transporting materials minimizes emissions and maximizes fuel efficiencies.

'To avoid confusion, we will refer to the predecessor companies by their current names.

?The procedures for setting residential collection rates are set forth in the Refuse Collection
and Disposal Ordinance, adopted by initiative in 1932 and codified as Appendix | to the
Administrative Code (the “1932 Ordinance”). Those procedures authorize the Director of the
Department of Public Works to set rates, subject to review by a Rate Board comprised of the City’s
Chief Administrative Officer, Controller and Manager of the Public Utilities Commission.

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(Pet. Ex. A App. E §1). Other criteria included the “Method of transportation required for landfill
access (e.g. transfer truck and trailer, rail car, etc.)....” (Pet. Ex. A at p. 7.)

Both Recology and WMAC submitted proposals. (Pet.{§ 3-4.) WMAC proposed that the City
continue disposing waste at the Altamont Landfill, with no change in the current transportation
arrangements. In other words, under this proposal Recology would continue to transport the City’s
waste by truck from its transfer station to WMAC’s landfill. (Pet. 3, Ex. B, at p. 10.) WMAC
proposed charging the refuse collection companies, and through them, San Francisco ratepayers a
baseline tip fee of $46.00 per ton, not including transportation costs or any government fees (which, in
Alameda County then exceeded $20 per ton). (/d. at p. 20.)

Recology proposed disposing of refuse in its Ostrom Road Landfill in Yuba County,
California, and, as a back-up, its Hay Road Landfill in Vacaville, California if the Ostrom Road
Landfill became unavailable for any reason. (Pet. 4, Ex. C at pp. at 3-8.) Recology proposed a
bascline tip fee of $22.73 per ton, not including transportation costs or government fees (which in
Yuba County were then $5.80 per ton). (/d. at p. 18.) Therefore, Recology’s bid for the tip fee alone
was less than half of WMAC’s bid, and the differential was even larger if the fees charged by Alameda
County versus Yuba County were factored into the calculation. Responding to the RFP’s invitation to
consider the impact of transportation, Recology proposed transporting the waste to Ostrom Road by
rail, calling it the “Green Rail Project.” (/d. at pp. 12-17.) Recology provided an estimate of the per-
ton cost of transporting waste by rail, although it did not include a formal bid for the cost of
transportation. (/d. at p. 17.)

Following its evaluation of the proposals, in September 2009, the DOE gave notice of its intent
to award the contract for landfill disposal to Recology (the “Tentative Award”). (Pet. Ex. D.) The
Notice made clear that the award of the contract was contingent upon successful negotiation of
contract terms and approval of a contract by the San Francisco Board of Supervisors. (/d.)

The City then negotiated two agreements with Recology: a Landfill Disposal Agreement
(“2011 Landfill Disposal Agreement”) and an amendment to the existing 1987 Facilitation Agreement
entitled Amended And Restated Facilitation Agreement (“2011 Amended Facilitation Agreement”)

(collectively, the “2011 Agreements”). (Pet. 7.) After protests by WMAC, both agreements were
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approved by the Board of Supervisors in July 2011, and the agreements were thereafter executed by
the City and Recology. Board Resolution No. 322-11. (Pet. 4 7; see also
http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions | 1/r0322-11.pdf ).

Ill. © WMAC CHALLENGES THE 2011 CONTRACTS BUT ITS LAWSUIT IS DISMISSED
AFTER THE CONTRACTS ARE TERMINATED.

On August 10, 2011, WMAC filed a Verified Petition For Writ of Mandate or Other
Extraordinary Relief and Complaint For Declaratory Relief challenging the 2011 agreements. (Pet. §
8.) Like the present Petition, the petition alleged that the City had violated Chapter 21 of the City’s
Administrative Code and the City’s Climate Action Plan. (Pet. Ex. E.)

In preparation for the shipment of the City’s waste to the Ostrom Road Landfill, Recology
sought a permit from Yuba County to construct a short railroad spur from existing track to the landfill.
As part of its review of Recology’s application, Yuba County decided to prepare an environmental
impact report (“EIR”) under CEQA. (Pet. 4 11.) In April 2012, Yuba County issued a Notice of
Preparation of Draft Environmental Impact Report that announced the scope of CEQA review would
include environmental impacts not only in Yuba County, but also at all points between Recology’s San
Francisco transfer station and the Ostrom Road Landfill. (/d.) The geographic scope of the Yuba
County EIR prompted the City to coordinate a CEQA review with Yuba County. (Pet. Ex. G.)

To allow the City full discretion to adopt any and all modifications or alternatives that may be
identified through the CEQA review or even to disapprove the project altogether, the City determined
that termination of the 2011 Agreements was necessary. (Pet. Ex. G.) The City and Recology
therefore entered into the Termination Agreement on November 26, 2012. (/d.) The Court then
dismissed WMAC’s 2011 lawsuit without prejudice on the grounds that the lawsuit was no longer
ripe, and because the termination of the contracts mooted the action. (Pet. § 13.)

IV. THE CITY CONDUCTS CEQA REVIEW OF RECOLOGY’S BACKUP PROPOSAL.

After termination of the 2011 Agreements, the City began to consider Recology’s proposal to
transport and dispose of refuse in Yuba County. Recology’s proposal remained the City’s preferred

project, subject to the result of the CEQA process. (Pet. Ex. G.)

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During CEQA review, it became clear that Recology’s “Green Rail” proposal to transport
waste by train to Yuba County was not likely to go forward for at least two reasons. First, the most
economically feasible transportation route would be a rail spur over land owned by Beale Air Force
Base, and Recology had not been able to obtain permission from the Air Force. In addition, due to the
delays caused in part by the lawsuits filed challenging the 2011 contracts, it appeared unlikely that the
Green Rail could be completed in time even if Recology obtained permission for the rail spur.
Recognizing the writing on the wall, Recology notified the City on February 25, 2014, that it would
not be able to continue with the “Green Rail” project, and instead intended to proceed with the backup
landfill proposed in its proposal to the City — Recology’s Hay Road Landfill in Vacaville. (Pet. { 15.)

Thereafter, the City focused its CEQA review on the environmental impacts of transporting
and disposing of refuse at the Hay Road Landfill. After considering the environmental impacts—
including the effects on greenhouse gas emissions—the City’s Planning Department issued a
Preliminary Negative Declaration (“Preliminary Neg. Dec.”) for the Hay Road Landfill project on
March 4, 2015, and a final Negative Declaration (“Neg. Dec.”) on July 21, 2015. (Pet. Ex. M; Pet. Ex.
GG). In the Final Neg. Dec., the Planning Department concluded that the Hay Road Landfill project
“could not have a significant effect on the environment.” (Pet. Ex. GG; RJN Ex. A at p. 2.) The
Planning Department also concluded that the proposed project is not inconsistent with any “policy,
plan, or regulation adopted for the purpose of reducing greenhouse case emissions.” (RJN Ex. A at pp.
69-71.) While acknowledging the Hay Road landfill is farther away than the Waste Management’s
landfill in Altamont, the Planning Department explained that the difference for greenhouse gas
emissions would not cause a significant impact over the greenhouse gas emissions baseline. (Jd. at 68-
69.) Indeed, the proposal is consistent with climate plans and other greenhouse gas emissions laws
because the refuse would be transported using trucks fueled by biodiesel, liquefied natural gas, or
compressed natural gas — all of which produce lower greenhouse gas emissions than conventional
diesel fuel. (/d. at 70.) WMAC has not challenged the Final Neg. Dec. before the Board of

Supervisors.

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Vv. THE BOARD ENACTS ORDINANCE NO. 8-14 TO MAKE CLEAR THAT THE
CITY’S COMPETITIVE BIDDING REQUIREMENTS DO NOT APPLY TO
CONTRACTS RESULTING FROM THE COMPETITIVE SELECTION PROCESS.

While the CEQA review was underway, the Board of Supervisors clarified the scope of
Chapter 21 through Ordinance No. 8-14. (See Pet. Ex. J.) After confirming that the process
undertaken to select Recology’s bid as the City’s preferred project resulted in the best option for the
City’s ratepayers, the Board of Supervisors concluded that the purposes of competitive selection have
already been satisfied. (/d. at pp. 6-7.) In addition, in an effort to “avoid litigation that could
jeopardize the City’s ability to ensure continued landfill capacity by needlessly delaying the project
and to address any potential ambiguity in the legislation,” the Board provided that “contracts for the
disposal and transportation of refuse” for the ratepayers “are not now, and never have been, contracts
for “services” within the meaning of Section 21.02(i), (m) and (s) of the Administrative Code or their
statutory predecessors.” (/d. at p. 7.) The Board specifically provided that this “clarification shall
apply retroactively to actions taken by City officials or City agencies or entities in connection with the
Competitive Selection Process,” which the Ordinance defined as the selection process designed to find

a new contractor to dispose of the City’s waste after expiration of the current agreement with WMAC.

(id. at p. 2.)
VI. THE CITY ENTERS INTO A NEW LANDFILL DISPOSAL AGREEMENT WITH
RECOLOGY.

On July 22, 2015, the City and Recology signed a final Landfill Disposal Agreement. (Pet. Ex.
DD.) Under that agreement, Recology agrees to provide transportation and disposal services to the
City’s ratepayers for a term of nine years, or until 3.4 million tons of refuse have been deposited in the
landfill under the terms of the agreement, whichever comes first. (/d. at p. 7.)

ARGUMENT

WMAC’s First Amended Petition contains three causes of action for writ of mandate, based on
three different legal theories. Its First Cause of Action contends that the Landfill Disposal Agreement,
and the RFP process that led to it, violated Chapter 21 of the Administrative Code. Its Second Cause
of Action claims that the City violated Section 9.118 of the City Charter and/or Section 5 of the 1932

Ordinance governing refuse disposal by entering into the Landfill Disposal Agreement without

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approval of that contract by the Board of Supervisors. Its Third Cause of Action asserts that the City
violated the Climate Action Plan set forth in Chapter 9 of the Environment Code by selecting
Recology to provide transportation and disposal services. Each cause of action seeks identical relief: a
writ of mandate compelling the City to (1) set aside its current contract with Recology and negotiate
substitute contracts with WMAC; or (2) begin a whole new competitive bidding process to select a
contractor that will transport and dispose of the City’s waste.*

A writ of mandate may be issued against a public body or public officer “to compel the
performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or
station” in cases “where there is not a plain, speedy, and adequate remedy, in the ordinary course of
law.” (Code Civ. Proc. §§ 1085, 1086; see People ex rel. Younger v. County of El Dorado (1971) 5
Cal.3d 480, 491 (E/ Dorado).) “Two basic requirements are essential to the issuance of the writ: (1) A
clear, present and usually ministerial duty upon the part of the respondent; and (2) a clear, present and
beneficial right in the petitioner to the performance of that duty.” (Z/ Dorado, supra, 5 Cal.3d at p.
491 [internal citations and brackets omitted].) For the reasons set forth below, the City has no clear,
present or ministerial duty to rescind the Landfill Disposal Agreement, much less to negotiate a
substitute contract with WMAC or start a new competitive bidding process for a new agreement.

Accordingly, WMAC’s three claims for mandamus relief fail as a matter of law.

I. SAN FRANCISCO’S CONTRACTING AND PROCUREMENT ORDINANCE DOES
NOT APPLY TO THE LANDFILL DISPOSAL AGREEMENT.

A. Ordinance 8.14 Forecloses WMAC’s Claim That The Landfill Disposal Agreement
Violates Chapter 21.

WMAC’s claim that the Landfill Disposal Agreement violates Chapter 21 is based on a
misunderstanding of Chapter 21, and is foreclosed by Ordinance 8-14. WMAC asks the Court to
ignore Ordinance 8-14, but that the Court cannot do. Because WMAC seeks only prospective relief,
the Court “must apply the law in effect at the time its opinion is rendered.” (Hunt v. Superior Court
(1999) 21 Cal.4th 984, 1008.) “[I]t would be an idle act for [an appellate court] to determine what the

county must do in the future under the law as it used to be but no longer is.” (bid.)

>The First Amended Petition also contains a Fourth Cause of Action for declaratory relief.
Because the City has not demurred to that claim, it need not be discussed.

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The governing law in this case is Ordinance 8-14, an ordinance that clarified the scope of
Chapter 21. Ordinance 8-14 was a valid exercise of legislative power. Every legislative body has the
power “‘to alter the provisions of existing law by enacting clarifying legislation.” (Hunt, supra, 21 Cal.
4th at 1009.)

That is precisely what Ordinance 8.14 did. It expressly provided that “contracts for the
disposal and transportation of refuse resulting from the Competitive Selection Process are not now
... contracts for ‘services’ within the meaning of” the relevant provisions of Chapter 21 of the City’s
Administrative Code. (Pet. Ex. J at p. 7.)* And the Ordinance in turn defines the “Competitive
Selection Process” as the process used “to determine the best option for disposal of the City’s refuse
after the conclusion of the 1987 Agreements.” (/d. at p. 2.) The Landfill Disposal Agreement is the
end result of that process. Because the Agreement was entered into after Ordinance 8.14 was enacted,
its legality is governed by the new ordinance.

WMAC’s First Cause of Action is based on alleged “Violation[s] of San Francisco’s
Contracting and Procurement Ordinance, S.F. Admin. Code, Ch. 21.” (Pet. at 31:19-21.) But under

Ordinance 8.14, those provisions do not apply to the Landfill Disposal Agreement.

B. Ordinance 8.14 Forecloses WMAC’s Claim That The RFP Process Violated
Chapter 21.

WMAC’s First Cause of Action also contends that the RFP process that led to the Landfill
Disposal Agreement violated Chapter 21. (See, e.g., Pet 86.) This claim, too, is barred by
Ordinance 8.14.

That Ordinance states expressly that contracts resulting from the Competitive Selection
Process—i.e., the RFP—have “never been” subject to Chapter 21. (Pet. Ex. Jat p. 7.) Indeed, as
explained below, Chapter 21 does not now and has never applied to RFPs that seek bids for services
that are not provided to, nor paid for by, the City. Because Chapter 21 has never applied to the RFP

process, WMAC’s claim that the RFP violates Chapter 21 fails as a matter of law.

Specifically, Ordinance 8.14 exempted contracts resulting from the Competitive Selection
Process from the definitions of “General Services,” “Professional Services” and “Services” contained
in Chapter 21. (See S.F. Admin Code §§21.02 (i), (m), (s).) Accordingly, those contracts are not
covered by Chapter 21.

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Further, even if Chapter 21 applied to the RFP at issue in this case prior to the enactment of
Ordinance 8-14, WMAC’s claim would still fail. Ordinance 8-14 provides that its clarification of
Chapter 21 “shall apply retroactively to actions taken by City officials or City agencies or entities in
connection with [the RFP process].” (Pet. Ex. J at p. 7.) Accordingly, WMAC cannot successfully
contend that any “actions taken by City officials or City agencies or entities in connection with [the
RFP process]” violate Chapter 21.

Here, again, the City’s power to enact such legislation cannot be questioned. “[W]Jhen the
Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent
unless due process considerations prevent us.” (Western Security Bank v. Superior Court (1997) 15
Cal.4th. 232, 243.) No constitutional due process concerns arise where a change in the law alters
rights or expectations created by statute. (Plotkin v. Sajahtera, Inc. (2003) 106 Cal.App.4th 953, 962.)
That is because “statutory remedies are pursued with full realization that the legislature may abolish
the right to recover at any time.” (/d. [quoting Callet v. Alioto (1930) 210 Cal. 65, 67-68].) Because
WMAC’s alleged rights are based on statute—i.e., Chapter 21—retroactive application of Ordinance
No. 8-14 raises no due process issues.

These elementary principles foreclose WMAC’s claims that the City’s actions during the RFP
process violated Chapter 21. Even if they did at the time—which they did not (see Part I(C), infra)—
any potential violation became non-actionable when the Board decided that (a) contracts resulting
from the RFP process have never been subject to Chapter 21; and (b) this legislative determination
applies retrospectively to all actions taken by City agencies and officials in connection with the RFP

process.

Cc. Chapter 21 Did Not Apply To The RFP Process Even Before Enactment Of
Ordinance 8.14.

Even if Ordinance 8.14 had not been enacted, Chapter 21 would still not have applied to the
RFP process or the resulting Landfill Disposal Agreement. Chapter 21 requires that “[a]ll City
contracts for Commodities and/or Services shall be procured through competitive solicitation, except

as otherwise authorized in this Code.” (S.F. Admin. Code § 21.1 [emphasis added].) Thus, Chapter

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21 typically requires the City to use a competitive bidding process when it wishes to purchase
commodities or services. (S.F. Admin. Code §§ 21.02, 21.1.) But Chapter 21 does not apply when the
City is not acquiring “Commodities and Services.” (S.F. Admin. Code § 21.01; see also § 12.02.) Nor
does it apply to “bids” that are not proposals “to sell a commodity or service to the City.” (S.F.
Admin. Code § 21.02.)

The refuse transportation and disposal services at issue in this case are not services provided to
~ or paid for by — the City. Rather, the services are provided to the City’s residents and paid for by the
City’s ratepayers.° (Pet. p. 2 [RFP process designed to “ensure that the City’s residents receive the
highest quality services at the best price.”]; Ex. A.) Consequently, the Landfill Disposal Agreement
does not require Recology to provide services to the City, does not require the City to pay money to
Recology, and does not include a “contract amount.” For these reasons, the Controller has not
certified the availability of funds under the agreement, a legal prerequisite to any City contract
requiring the expenditure of City funds. (S.F. Charter § 3.105(i).) Because the services at issue here
are not provided to or paid for by the City, Chapter 21 does not apply under its plain terms. As the
Board of Supervisors unanimously confirmed, the refuse transportation and disposal agreements at
issue here are “not now, and have never been, contracts for ‘services’” subject to the requirements of
Chapter 21. (Pet. Ex. J at p. 7.)

In fact, Chapter 21 has never been applied to agreements for disposal services provided to the
City’s ratepayers. Even Waste Management’s current refuse disposal agreement with the City was not

subject to a competitive selection process. (Pet. Ex. J at p. 2.)°

5 Indeed, the City’s own collection needs are addressed in a separate contract with Recology
that WMAC does not challenge here.

Even if the Landfill Disposal Agreement were a contract for City services (which it is not),
WMAC’s argument fails also because Chapter 21 does not require competitive bidding for contracts
“where the total amount of the purchase does not exceed the Minimum Competitive Amount.” (S.F.
Admin. Code § 21.5.) The Minimum Competitive Amount is currently $600,000. (S.F. Admin. Code
§ 21.02.) Instead, purchases of less than that amount are governed by the City’s Purchaser
Regulations. (See http://sfgsa.org/Modules/ShowDocument.aspx?documentid=702.) Under Purchaser
Regulation 21.5, no competitive bidding is required for contracts for services where the amount spent
by the City is under $10,000. (dd. at § 21.5(a).) Because the City is not spending any money under the
challenged contract, the contracts do not exceed the Minimum Competitive Amount or the $10,000
threshold set forth in the Purchaser Regulations. Accordingly, even if Chapter 21 were otherwise
applicable, the Landfill Disposal Agreement would not be subject to the competitive bidding
requirement set forth therein.

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For all these reasons, WMAC cannot contend that either the Landfill Disposal Agreement or
the RFP process that led to it violates Chapter 21. The City’s demurrer to its First Cause of Action

should therefore be sustained without leave to amend.”

I. WMAC’S CLAIM BASED ON CHARTER SECTION 9.118(b) AND SECTION 5 OF
THE 1932 ORDINANCE FAILS AS A MATTER OF LAW.

WMAC’s Second Cause of Action asserts that the Board of Supervisors was required to
approve the Landfill Disposal Agreement pursuant to Section 9.118(b) of the City Charter or Section 5
of the 1932 Ordinance. This argument is inconsistent with the plain language of the Charter and the
1932 Ordinance, as well as the facts set forth in the First Amended Petition.

Section 9.118 requires Board approval of contracts having a term in excess of ten years or
requiring anticipated expenditures by the City of ten million dollars. (S.F. Charter § 9.118(b).)
However, under the Charter the Board of Supervisors has no authority to approve other contracts.
Section 2.114 expressly provides that “[n]either the Board of Supervisors, its committees, nor any of
its members, shall have any power or authority nor shall they dictate, suggest or interfere with respect
to any. . . contract or requisition for purchase or other administrative actions or recommendations of . .
. department heads under the City Administrator or under the respective boards and commissions.”
Consequently, unless the contract has a term in excess of ten years, or involves an expenditure by the
City of more than ten million dollars, the Board may not approve it. (Jd.; SN Sands Corp. v. City and
County of San Francisco (2008) 167 Cal.App.4th 185, 195 [Board of Supervisors had no jurisdiction
to approve or disapprove contracts that did not have a term in excess of ten years or require ten million

dollars in City expenditures].)

’To the extent that WMAC’s First Cause of Action is based on the claim that the City breached
some obligation created by the RFP, rather than Chapter 21, that contention also fails. Mandamus
relief is only available “to compel the performance of an act which the law specifically enjoins.” Code
Civ. Proc. § 1085(a) (emphasis added). Accordingly, “mandamus is not appropriate to enforce the
contractual obligations of a public body.” H.N. and Frances C. Berger Foundation v. Perez (2013)
218 Cal,App.4th 37, 46 (quoting McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436,
442.)). A fortiori, mandamus is not available to enforce obligations allegedly created by the City’s
statements in a Request for Proposals that never ripened into a formal contract between the City and
WMAC.

Indeed, the RFP is nothing more than a statement of the City’s intent to award a contract under
the specified conditions. It did not require the City to enter into a contract with WMAC or anyone
else. Instead, the RFP reserved the City’s right to reject any and all proposals. (Pet. Ex. A at p. 11.)

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The Landfill Disposal Agreement did not require Board approval. By its terms, the contract
lasts for nine years, or until 3.4 tons of refuse have been disposed under the agreement, whichever
comes first. (Pet. Ex. DD [Refuse Contract § 2.2], emphasis added.) Thus, its term is at most nine
years, not more than ten. Nor does the contract contemplate any expenditure of money by the City, let
alone the ten million dollar threshold required by Section 9.118(b). Accordingly, the Board is not
required to approve the contract under Section 9.118(b), and therefore may not do so under Section
2.114.

Nor was the Board required to approve the Landfill Disposal Agreement under Section 5 of the
1932 Ordinance (as amended). That provision states in relevant part: “Refuse collected by refuse
collectors shall be disposed of by such persons, firms or corporations and in such manner or by such
method or methods as from time to time designated by the Board of Supervisors of the City and
County of San Francisco.” (RJN Ex. B.) By its terms, Section 5 does not require the Board to approve
refuse disposal contracts. Instead, it requires only that the Board approve the persons who will
dispose of the waste and the disposal method.

That is precisely what the Board did here. In Ordinance No. 8.14, the Board confirmed the
City’s selection of “Recology as the City’s preferred contractor” for refuse disposal. (Pet. Ex. J p. 7.)
Likewise, the same Ordinance approved the City’s decision to go forward with the “disposal and
transportation of refuse consistent with the Recology Proposal.” (dbid.) Thus, the Board has approved
both DOE’s selection of Recology as the responsible entity to dispose of the City’s waste and DOE’s
decision to dispose of refuse at the Recology landfill. That is all the 1932 Ordinance requires.

Any other interpretation of Section 5 would conflict with the City Charter. As explained
above, the Charter does not allow the Board to interfere with, approve or disapprove of contracts that
do not meet the prerequisites for Board approval under Section 9.118. (S.F. Charter § 2.114; SN Sands
Corp., supra, 167 Cal.App.4th at p. 195.] Any ordinance that authorizes the Board to act in a way
prohibited by the Charter is void. (Stuart v. City & County of San Francisco (1986) 174 Cal.App.3d
201, 206 [“The provisions of the San Francisco City Charter supersede all municipal laws, ordinances,
rules or regulations inconsistent therewith.”]; St. Croix v. Superior Ct. (2014) 228 Cal. App.4th 434,

442 [same].) Thus, the 1932 Ordinance could not require the Board to approve a contract that the City
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Charter prohibits the Board from considering. Consequently, if Board approval of the Landfill
Disposal is not required by Section 9.118 (and it is not), approval cannot be required under Section 5.
Il. ©WMAC’S CLIMATE ACTION PLAN CLAIM FAILS AS A MATTER OF LAW.

WMAC’s Third Cause of Action alleges that the City’s decision to enter into the Landfill
Disposal Agreement violates the City’s Climate Action Plan, codified in Chapter 9 of the
Environmental Code. Again, WMAC’s claim fails because WMAC has not and cannot allege that the
City has failed to comply with a mandatory duty under the Climate Action Plan.

The Climate Action Plan sets forth greenhouse gas emission reduction goals for the City. To
achieve those objectives, the Plan requires that all City departments “consider the effect of all
decisions and activities within their jurisdiction on greenhouse gas emissions and undertake their
responsibilities to the end that the City achieves the greenhouse gas emissions limits set forth in their
Ordinance.” (S.F. Env. Code § 902(b).) The Climate Action Plan does not mandate any particular
result with respect to any particular project. Nor does it require that the City’s consideration take any
particular form. It requires only that the City consider the effect of its decisions on greenhouse gas
emissions. (/bid.)

The City has complied with the Climate Action Plan because it has considered the effect that
the Landfill Disposal Agreement would have on greenhouse gas emissions. The Negative Declaration
the City prepared as part of its review of the agreement under CEQA specifically analyzed the
greenhouse gas emissions expected from the landfill and transportation agreements, both in San
Francisco and outside the City limits. (RJN Ex. A at pp. 9, 68-71.)* It concluded that the proposed
project “could not have a significant effect on the environment.” (/d. at pp. 69-71.) While
acknowledging the Hay Road landfill is farther away than the WMAC’s landfill in Altamont, the
Negative Declaration concluded that the difference in greenhouse gas emissions would not cause a
significant impact over the greenhouse gas emissions baseline. (/d. at pp. 68-69.) Indeed, the proposal

is consistent with greenhouse gas emissions laws because the refuse would be transported using tracks

8 Within San Francisco, the proposed project would not likely cause any significant change
compared to the exising agreement with WMAC because the plan contemplated the same number of
trucks would travel the same route between the refuse loading station and the eastern end of the Bay
Bridge. Thus, there was not likely to be any change in the emissions in or close to the City’s territorial
limits. (RJN Ex. A at p. 9.)

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fueled by biodiesel, liquefied natural gas, or compressed natural gas — all of which produce lower
greenhouse gas emissions than conventional diesel fuel. (/d. at p. 70.)

WMAC disagrees with those conclusions, and on the basis of that disagreement, asserts that
the City must not have “adequately analyzed” greenhouse gas impacts. (Pet. § 108.) But WMAC is
not entitled to a writ based merely because it disagrees with the conclusions reached by City officials.
As the Supreme Court has already made clear, writs may issue only to compel governmental officials
to undertake “clear, present, and usually ministerial duties.” (E/ Dorado, supra, 5 Cal.3d at p. 491.) A
petitioner cannot obtain a writ that seeks to force governmental officials to exercise their discretion in
a different way. It is well established that a “writ will not lie to control discretion conferred upon a
public officer or agency.” ([bid.)

Dated: September 16, 2015
DENNIS J. HERRERA
City Attorney
WAYNE K. SNODGRASS

TARA M. STEELEY
Deputy City Attorneys

By:

/s/Tara M. Steele:
TARA M. STEELEY

Attorneys for Defendants/Respondents

CITY AND COUNTY OF SAN FRANCISCO;

THE SAN FRANCISCO BOARD OF SUPERVISORS;
THE SAN FRANCISCO DEPARTMENT OF THE
ENVIRONMENT; and DEBORAH O. RAPHAEL, in
her official capacity as Director of the San Francisco
Department of the Environment

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