Environmental Law

Governor’s Drought Executive Order Will Impact Local Agency Water Suppliers and Water Users (and Lawns)

Attorney Authors: 

On April 2, Governor Brown issued the third and most significant in a series of Executive Orders addressing the ongoing drought. They followed his 2014 proclamation of a State of Emergency resulting from drought conditions. The Executive Orders direct various state agencies to implement various actions. They also suspend laws and regulations, using the Governor’s statutory authority to do so where the law or regulation will hinder the State’s ability to cope with the emergency.

Contaminated Sediment: Appellate Court Muddies the Water for TMDLs

On March 30, a short opinion from California’s Second Appellate District raised a long list of unanswered questions in a case concerning a Regional Water Quality Control Board’s authority to develop a Total Maximum Daily Load (“TMDL”) for contaminated sediment.  (A TMDL is a regulation that calculates the maximum amount of a pollutant an impaired water body can receive and still meet water quality standards, and allocates the loading among the various sources of that pollutant.)  In

Ninth Circuit Expands Judicial Scrutiny of CERCLA Settlements

The Ninth Circuit recently issued an opinion that emphasizes the obligation of district courts to independently review the adequacy of proposed consent decrees under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). In Arizona v. City of Tucson, ---F.3d--- (9th Cir. 2014), 2014 WL 3765569, eighteen proposed consent decrees between the State of Arizona and de minimis settling parties were remanded because the district court did not compare each party's estimated liability with its settlement amount or explain why the settlements were fair, reasonable, and consistent with CERCLA's objectives.  According to the Ninth Circuit, the district court afforded undue deference to the Arizona Department of Environmental Quality's conclusions and methodology rather than conducting its own in-depth review of the evidence.  In a 2-1 decision, the majority held that state agencies with environmental expertise are entitled to "some deference" regarding the environmental issues underlying a consent decree.  However, the state agency's interpretation of CERCLA's mandate is not entitled to deference because the state agency is not charged with enforcing CERCLA. 

Even In Drought, Water Must Be Managed To Protect Delta Fish

The Ninth Circuit recently issued two controversial opinions which uphold efforts to protect the delta smelt, a small fish endemic to the Sacramento-San Joaquin delta that is protected under the state and federal Endangered Species Acts, despite potential significant impacts on water deliveries to urban and agricultural areas.

Regulatory Scope of "Waters of the United States" to be Clarified

Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers ("Agencies") jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act ("CWA"). The proposed rule revises the definition of "waters of the United States" and also adds new definitions for the terms "neighboring," "riparian area," "floodplain," "tributary," and "significant nexus." The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional "Water of the United States" regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).  

Where the Rubber Meets the Road

Attorney Authors: 

Two new California laws will become effective on January 1, 2014, which will make it easier for cities, counties, and other government agencies to promote the use of rubber tires in two different ways:

Court of Appeal Issues Narrow Opinion on Subvention for Municipal Stormwater Permit Requirements

The California Court of Appeal recently issued the first published decision that adjudicates a municipal stormwater test claim on the merits.  In State Department of Finance et al. v. Commission on State Mandates, the Court of Appeal held that municipal stormwater requirements in a Los Angeles County National Pollutant Discharge Elimination System ("NPDES") permit to install trash receptacles at transit stops and to conduct inspections of commercial, industrial, and construction sites are not unfunded state mandates as a matter of law.  The Los Angeles County permittees, therefore, are not entitled to reimbursement for implementing these specific requirements under the California Constitution, article XIII B, section 6.   The Court of Appeal largely relied on the "highly flexible" "maximum extent practicable" standard of the Clean Water Act in ruling that these requirements are federal mandates, but limited its ruling to the specific mandates at issue.  As a result, public agencies that own and operate municipal separate storm sewer systems in California may still seek subvention for other NPDES permits with requirements that exceed the "maximum extent practicable" standard.

Please click here for more information on this case.

Governor Brown Signs AB 440

Does your city have a contaminated, boarded-up, abandoned, graffiti- and trash-encrusted property sitting in the middle of what was a vibrant and busy area? In the good old days (pre-2012, that is), redevelopment agencies could compel cleanup of contaminated properties in redevelopment project areas using the Polanco Redevelopment Act. Akin to a nuisance action, the redevelopment agency would give notice to the responsible parties, usually the owner of the property or the operator of the former business, to clean up the property. If the responsible party failed to comply, the redevelopment agency could conduct the cleanup and recover its full costs, including attorneys' fees and cost of staff time. But what can be done now that redevelopment agencies no longer exist? 

Fourth Draft of Statewide Industrial Storm Water Permit Available for Public Comment

Attorney Authors: 

On Friday, July 19, the State Water Resources Control Board ("State Water Board") issued the latest draft of the Statewide General National Pollutant Discharge Elimination System ("NPDES") Permit for the Discharge of Storm Water Associated With Industrial Activities (the "IGP").  The IGP is issued under the federal Clean Water Act and state law to regulate operators of industrial facilities that discharge storm water into "waters of the United States."  The IGP contains many significant changes from the previous general industrial storm water NPDES permit issued in 1997, which remains in effect until the new IGP is adopted (the State Water Board anticipates adoption in January 2014).  A number of the IGP's changes are summarized below.

The State Water Board is accepting public comments on the IGP through noon on August 29, 2013, and will also hold a public hearing to accept verbal comments at 9:00 am on August 21, 2013.  The notice of opportunity to comment and all relevant permit documents related to the fourth draft IGP are available here.

This fourth draft of the IGP is the State Water Board's latest attempt to update the 1997 general industrial storm water NPDES permit, which demonstrates the long history and contentious issues that have prolonged the reissuance process. 

State Bill Equivalent of Polanco Act Clears Legislative Hurdle

AB 440 (Gatto) would allow cities, counties and housing authorities to compel cleanup of contaminated properties in their jurisdiction, similar authority to the Polanco Redevelopment Act.  The process would be akin to a nuisance action in that the public entity would give the responsible parties notice and an opportunity to clean up.  If the responsible parties do not respond or do not clean up the property after receiving notice, the public entity may prepare a cleanup plan for approval by an environmental regulatory agency, clean up the property (regardless of whether it owns the property) and sue for the entire cost of cleanup including attorneys’ fees and staff time. On April 16, 2013, AB 440 passed out of the Assembly Environmental and Toxics Committee with significant city support.  On May 1, 2013, the bill will be heard in the Local Government Committee. 

The U.S. Forest Service Gets a Mixed Bag from the U.S. Supreme Court

On Monday, the U.S. Supreme Court agreed to review the process by which the federal government measures the environmental impact of its land use plans, granting the U.S. Forest Service's appeal of a controversial Ninth Circuit decision which found a forest plan deficient for failing to analyze its impact on area fish species.  (See United States Forest Service et al. v. Pacific Rivers Council et al., 689 F.3d 1012 (2012), cert. granted and motion granted 2013 U.S. LEXIS 2177 (U.S., Mar. 18, 2013).)  The Forest Service argued that it had been held to an unfair standard because a broad programmatic environmental impact statement conducted for the proposed changes covering 11.5 million acres near the Sierra Nevada isn't required to go into as detailed an analysis as a study tied to a specific project..  The Forest Service also asserted that requiring such detailed analysis for a programmatic environmental document would increase compliance costs and slow the review process. 

Court Finds 482 Page Biological Opinion for Pesticide Registration Is Not Long Enough

The Fourth Circuit Court of Appeals has vacated the National Marine Fisheries Service’s (“NMFS”) 482 page biological opinion finding that the EPA’s proposed process for reregistration of pesticides would jeopardize the continued existence of 27 species of Pacific salmonids.  See Dow Agrosciences LLC v. National Marine Fisheries Service, 2013 U.S. App. LEXIS 3650 (4thCir.

Federal Circuit Finds No Foul From Fish Flows

The Federal Circuit Court of Appeals has upheld a decision from the Court of Federal Claims finding that appropriative water rights in California are property interests only to the extent the water is put to beneficial use.  See Casitas Municipal Water District v. United States, Court of Appeals Case No. 2012-5033 (Fed. Cir. 2013).  Casitas Municipal Water District claimed that the National Marine Fisheries service had forced it to build a fish ladder and divert flows from the Ventura River for the benefit of the endangered Southern California Steelhead, which resulted in a taking of its water right.  The District has a license from the State Water Resources Control Board allowing it to divert a maximum of 107,800 acre feet per year for storage and authorizing it to use 28,000 acre feet per year for beneficial use.  The court explained that storage itself is not a beneficial use under California law, so there can be no taking unless and until diversions for the endangered fish result in an impact to the District’s maximum allowable water deliveries of 28,500 acre feet per year. 

State Supreme Court to Consider Whether Ballot Initiative Process Can Bypass CEQA

Attorney Authors: 

The California Supreme Court has unanimously decided to accept review of Tuolumne Jobs & Small Business Alliance v. Superior Court. The plaintiff alleges that the City of Sonora violated CEQA when it adopted a voter-sponsored initiative as an ordinance to approve expansion of a Wal-Mart into a 24-hour "supercenter" without submitting the measure to a popular vote and without completing environmental review. 

Return of the Mountain Devil?

On February 4, 2013, the U.S. Fish and Wildlife Service (USFWS) issued a proposed rule to designate the U.S. populations of the wolverine, known as the “mountain devil,” as a threatened species under the Endangered Species Act.  A key factor leading to the proposed listing is the loss of habitat due to climate change; however, the USFWS is only proposing prohibitions on trapping and killing the animals, not the regulation of activitiesthat may berelatedto climate change. 

The wolverine is a ferocious and tenacious predator.  Once found in the Sierra Nevada range in California, the population is believed to have been extirpated in the early 1900’s as part of a widespread pest eradication campaign.  The USFWS is not proposing the designation of critical habitat at this time, but it is looking at restoring populations within the historic range of the animal, including the Sierra Nevada range, as a possible option to help the population recover. 

U.S. Supreme Court Reverses Ninth Circuit Ruling on Municipal Storm Water Discharges

Good news for owners and operators of municipal separate storm sewer systems, also known as "MS4s."  In Los Angeles County Flood Control District v. Natural Resources Defense Council, the U.S. Supreme Court held that storm water flowing from an improved, channelized portion of a navigable waterway into an unimproved, natural portion of the same waterway does not qualify as a "discharge of a pollutant" under the Clean Water Act.  The Ninth Circuit had ruled to the contrary, that the flow of pollutants from channelized portions of two rivers into what it termed "naturally occurring portions of those rivers" was the point where a "discharge of a pollutant" occurred.  In a five-page opinion authored by Justice Ginsburg, the Supreme Court unanimously reversed the Ninth Circuit's decision as wholly inconsistent with the rule announced in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), which held that the flow of polluted water between two parts of the same waterway does not constitute a "discharge of a pollutant" under the Clean Water Act.

To read more about this case, follow this link.

Ex Parte Communications with the Water Boards Are Now Permissible

Attorney Authors: 

Public entities, businesses, and anyone else regulated by the State and Regional Water Boards have something new to cheer about: ex parte communications are now allowed in specified adjudicatory proceedings.  Governor Brown recently signed SB 965 into law, which allows interested persons to communicate with members of the water board while one of the following actions is pending: adoption, modification, or rescission of (1) state waste discharge requirements and federal NPDES permits, (2) conditional waivers of waste discharge requirements, and (3) conditions of water quality certifications.  However, the boards can choose to block further ex parte communications beginning 14 days before the proceeding occurs. Existing law prohibited all such communications at any time while an adjudication was pending before the boards.

There is one big catch, however. 

Global Climate Change: Finally, a 'Trust' Worthy Solution?

Environmental groups may have developed a way to repurpose a legal theory traditionally implemented to protect water resources, the “public trust doctrine,” to push forward legal measures to combat climate change and reduce greenhouse gas emissions. 

CEQA Reform Bill Tabled for Now

Attorney Authors: 

The last minute scramble for a CEQA reform bill has ended for this legislative session.  Senate President Pro Tem Steinberg said the Senate would not take up the bill before the current session ends next week.  The bill’s author Senator Rubio acquiesced.  However, the proposed reform is deferred, not dead.  The bill will be made public and is expected to be formally introduced in the next legislative session.  There is a coalescing of interests to support significantly amending CEQA to prevent what are seen as obstacles to development through delays and litigation.  So, although the mad dash for immediate passage has abated, this issue will be prominently debated in the future.  It appears a big legislative battle is looming on the future of CEQA.  It is a long-standing issue whose time may have finally come.

Last Minute Significant CEQA Reform Bill Emerges

Attorney Authors: 

A business and labor coalition group is proposing a new law to significantly reform CEQA before the current State Legislative session ends next week.  The terms of the bill are expected to be made part of SB 317 (an unrelated bill) through what is called a “gut and amend” process.  Although the proposed law may be further amended, the draft focuses on the following: (1) limiting analysis of environmental impacts in CEQA documents to compliance with State and Federal environmental regulations; (2) limiting mitigation measures to requirements under existing law; and (3) prohibiting certain types of legal challenges to CEQA environmental documents.  Overall, the bill would significantly narrow the scope of environmental impacts analyzed  and the mitigation measures available to address impacts.  The proposal also would restrict the types of legal challenges that can be made to CEQA documents.  An initial draft of the proposal has been posted online

Some newspaper editorials have criticized the proposal as an end of the session rush job and have urged the Legislature to follow a procedure that would allow more review and debate.  Last year, the Legislature passed some CEQA reform bills formulated at the very end of the session relating to new exemptions and the Los Angeles football stadium proposal.  We will see what happens this year.

Putting a Dollar Amount on Intangible Harm to the Environment

Attorney Authors: 

What is intangible harm to the environment worth?  That is the question that will now be asked of juries as a result of the Ninth Circuit Court of Appeals’ recent opinion in United States v. CB&I Constructors, Inc.

In CB&I Constructors, a jury awarded $28.8 million for damages caused by the Copper Fire of 2002, which burned roughly 18,000 acres of forest and destroyed nearly all of the vegetation, harmed wildlife, and impacted scenic views and recreational use.  At trial, the United States’ expert witnesses testified about the intangible harm to the environment, but did not quantify the harm.  The defendant appealed the jury award as grossly excessive, arguing that intangible noneconomic damages are not compensable in tort suits alleging harm to property.  In upholding the award, the Court explained that “California embraces broad theories of tort liability that enable plaintiffs to recover full compensation for all the harms that they suffer.  Under California law, the government may recover intangible environmental damages because anything less would not compensate the public for all of the harm caused by the fire.”

Intangible environmental harm is not easily calculated.  Therefore, a jury’s subjective evaluation of the damages will continue to drive the dollars behind what’s reasonable compensation for the harm. 

The State Water Board’s Storm Water Summer

Attorney Authors: 

The State Water Board has released two new drafts of general storm water NPDES permits this summer.  

The new draft General Permit for the Discharge of Storm Water Associated with Industrial Activities is a substantial change from the draft released in January 2011.  It has notably removed numeric effluent limitations, largely due to the difficulty of developing technology-based limits for all industrial sectors, but still includes numeric action levels.  In addition, it implements new cost-saving measures for sampling and monitoring. Public comment will be accepted on the draft permit until noon on September 21, 2012, and the State Water Board will hold a public hearing on October 17, 2012 in Sacramento.  

The State Water Board also issued a new draft of its Phase II General Permit for Small Municipal Separate Storm Sewer Systems (MS4s).  Although the deadline for written comments has now passed, the public can still attend a public hearing on August 8, 2012 in Sacramento and provide oral comment. 

Water Contractors Win Latest Round in California’s ESA-Water Wars

In the latest round of the much larger legal battle over the impacts of water projects on protected fish in the California Delta, the Ninth Circuit Court of Appeals, in a 2 to 1 decision, rejected a challenge brought by the Natural Resources Defense Council (“NRDC”) to the renewal of 41 long-term Central Valley Project  water contracts by the Bureau of Reclamation (“Bureau”).  See NRDC v. Salazar, 2012 U.S. App. LEXIS 14614 (2012).  The NRDC had argued that the renewal of the contracts would violate the Endangered Species Act (“ESA”) because the water deliveries under the contracts would harm the delta smelt, a small fish endemic to the Sacramento-San Joaquin delta that is listed as endangered under the ESA.  The Court concluded that the NRDC did not have standing, or legal authority, to challenge the two types of contracts because 1) the Bureau had no discretion over the renewal of the Settlement Contracts, so the protections of the ESA were not implicated by those renewals and 2) plaintiffs failed to establish a causal connection between the alleged injury, harm to the delta smelt, and the Bureau’s action in renewing the Delta-Mendota Canal contracts because these contracts contained a shortage provision authorizing the Bureau to take any actions necessary to meet its obligations under ESA, including curtailing water deliveries.

City Is Not Required To Consider Environmental Impacts From Use Of Property As Affordable Housing Where Such Use Is Not Reasonably Foreseeable

On January 4, 2012 the California Sixth District Court of Appeal held that a City’s Final Environmental Impact Report (FEIR) was required to consider only reasonably foreseeable consequences of the sale of city-owned property. The City of Carmel-by-the-Sea owned land known as the Flanders Mansion property, which had historically been used for numerous low-intensity uses. The City approved a FEIR following its decision to sell the mansion. The report concluded that because the use of the property was constrained onlyto historical uses, a lease to another entity for a future use, such as an affordable housing project, was not feasible. The Flanders Foundation challenged the City’s approval and argued that the City did not sufficiently examine the potential environmental impacts associated with application of the Surplus Land Act which requires agencies to offer to sell or lease property to certain entities for affordable housing or park purposes before it offers the property to the general public.

The Court held that the City was not prohibited from selling the Mansion, and that it was not reasonably foreseeable that a public agency would spend millions of dollars to purchase and restore the property and accept the burden of complying with the restrictions for the purpose of using it for affordable housing. Given that such use was not foreseeable, the Court found that the FEIR was not required to consider the environmental impacts that could arise from such use.

For the full decision, see Flanders Foundation v. City of Carmel-by-the-Sea (Case No. H035818).

ESA Protections for Endangered Steelhead Not a 5th Amendment Taking

The Court of Federal Claims’ recent opinion in Casitas Municipal Water District v. the United States, Court of Federal Claims No. 05-168L (Dec. 5, 2011) is the latest chapter in a legal battle between water diverters and fish in California.  Water users competing with endangered fish species for limited water resources have taken the fight to the courts in recent years (Tulare Lake, Klamath and now Casitas) with mixed results, claiming restrictions under the Endangered Species Act (“ESA”) requiring water to remain in streams for fish passage is a taking of their water rights.  Casitas operates a water project in Ventura County that provides water to residential, industrial and agricultural users.  In  2005, Casitas sued the U.S. for a 5thAmendment taking after the National Marine Fisheries Service issued a biological opinion that required Casitas to provide fish passage over a diversion dam which blocked the fishes’ access to upstream habitat.  The government argued that no taking occurred because background principles of state law limited plaintiff’s water right to beneficial use of water in a manner that did not harm trust resources such as fish and wildlife. 

In concluding that no taking had occurred, the court clarified that the only compensable water right that can be obtained under California law is the right to beneficial use and that such water rights are limited by background principles of state law.  To the extent restrictions imposed under the ESA are no greater than the restrictions imposed under state law (i.e., the public trust doctrine, the reasonable use doctrine and the California Fish and Game Code), there is no taking under Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).  The court found insufficient evidence to conclude that the ESA restrictions were duplicative of state background principles limiting the plaintiff’s water right, but then held the takings claim was not ripe because the restrictions imposed by the biological opinion had not interfered with the plaintiff’s beneficial use of water.  The court further held that if the State Water Resources Control Board were to act in the future to revise Casitas’ license and impose equal or greater restrictions to protect the fish than those imposed in the biological opinion, this would satisfy the Lucas standard and would eliminate any possible takings claim against the federal government.

This decision clarifies the limitations on California water rights from background principles of state law and the import of those limitations on the compensability for water lost due to ESA and other environmental protections.

The Importance of an Agency Record - Court Finds that Yellowstone Grizzly Bears Still Need ESA Protection

In 2007, the Greater Yellowstone Coalition (“Coalition”) filed a lawsuit against the U.S. Fish and Wildlife Service (“Service”), Greater Yellowstone Coalition Inc. v. Servheen, challenging the Service’s final rule (“Rule”) to remove the Yellowstone distinct population segment of grizzly bears from the Endangered Species Act’s threatened species list.  The Coalition prevailed on summary judgment, convincing the district court that two key grounds supporting the Rule – 1) adequate regulatory mechanisms were in place to protect the grizzly and 2) declines in whitebark pine did not threaten the grizzly - were not rationally supported by the record.  The Ninth Circuit Court of Appeals affirmed in part and reversed in part, reiterating the importance of a well-documented Agency record.

The Importance of an Agency Record - Court Finds that Yellowstone Grizzly Bears Still Need ESA Protection

In 2007, the Greater Yellowstone Coalition (“Coalition”) filed a lawsuit against the U.S. Fish and Wildlife Service (“Service”), Greater Yellowstone Coalition Inc. v. Servheen, challenging the Service’s final rule (“Rule”) to remove the Yellowstone distinct population segment of grizzly bears from the Endangered Species Act’s threatened species list.  The Coalition prevailed on summary judgment, convincing the district court that two key grounds supporting the Rule – 1) adequate regulatory mechanisms were in place to protect the grizzly and 2) declines in whitebark pine did not threaten the grizzly - were not rationally supported by the record.  The Ninth Circuit Court of Appeals affirmed in part and reversed in part, reiterating the importance of a well-documented Agency record.

CARB Adopts Final GHG Cap-and-Trade Program

Attorney Authors: 

After surviving a highly publicized ballot box challenge and lawsuit, the California Air Resources Board ("CARB") unanimously adopted a final greenhouse gas ("GHG") cap-and-trade program regulation.  The cap-and-trade program is considered to be the cornerstone of CARB's implementation of California's landmark Global Warming Solutions Act of 2006, Assembly Bill 32 ("AB 32").  The first of CARB's cap-and-trade program auctions for allowances for use in 2013 will be held August 15 and November 14, 2012. 

Major industrial sources and electric utilities must begin compliance with the cap-and-trade program in 2013.  By 2015, distributors of transportation fuel and natural gas also become obligated to comply with cap-and-trade program requirements.   In addition, the cap-and-trade program will likely create a market for CARB-certified offset projects in areas of livestock management, elimination of ozone depleting substances, urban forest projects, and U.S. Forest projects.

To view the full summary of the program, follow this link.

Hotly Contested Challenge to the Department of Fish and Game's Authority to Regulate Streamflow Diversions

In March 2011, the Department of Fish and Game was sued in Siskiyou County by the local farm bureau who claims the Department has improperly expanded its authority to regulate substantial diversions or obstructions of stream flow under Fish and Game Code Section 1602.  (Siskiyou County Farm Bureau v. California Department of Fish and Game, Case No. SCSCCVCV 11-00418.)  In 2005, coho salmon in the Klamath Basin were listed as threatened under the California Endangered Species Act ("CESA").  The Department has since interpreted its authority under Section 1602 and CESA to require all agricultural streambed diversions in the Klamath Basin to obtain the necessary permits or authorizations to comply with Section 1602. 

Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR

Attorney Authors: 

Questions often arise as to whether an agency can rely on an "old" certified environmental impact report to approve a revision to a project that was never built.  In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of a 2008 Addendum to a 1994 environmental impact report (EIR) to approve a revised project.  The Court rejected arguments that the Addendum was insufficient because it failed to analyze greenhouse gas (GHG) impacts which were not addressed in the 1994 EIR.   A GHG analysis was not required because it was not new information that could not have been known in 1994 when the EIR was certified.  The Court found that GHG impacts were known as early as the 1970s.  The Court also found that the City properly incorporated and approved a new water supply assessment in the Addendum.  The opinion also provides good guidance on the requirement to present issues with specificity before the agency as a prerequisite for raising the issues in court (the exhaustion of administrative remedies doctrine).  Click here for a more detailed analysis of the case.

EPA Has Exclusive Authority to Regulate Greenhouse Gas Emissions

Attorney Authors: 

On June 20, 2011, in American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law public nuisance claims for abatement of carbon dioxide emissions are barred because the Clean Air Act authorizes the U.S. Environmental Protection Agency to set greenhouse gas emission standards. 

Proposed Law Would Require Cities and Counties to Provide On-Line Building Permit Applications for Electric Vehicle Charging Stations

The California Legislature recently introduced S.B. 730, a bill that would mandate cities and counties to provide on-line building permit applications for electric vehicle charging stations.

S.B. 730 would amend Section 44272 and Section 19830 to the Health and Safety Code, which establish the State's Alternative and Renewable Fuel and Vehicle Technology Program. The Program is administered by the State's Energy Commission, which provides grants, loans, or other financial incentives for the development of innovative technologies that transform California's fuel and vehicle types to help attain the State's climate change goals. In particular, S.B. 730 would require local governments to provide online building permit applications for installation of vehicle charging equipment. In addition, S.B. 730 would require local governments to approve building permits applications for installation of vehicle charging equipment within one business day, and review the work completed under the permit within 7 days of completion of the work.

If signed in to law, S.B. 730 would not only require California's cities and counties to have online building permit applications for installation of vehicle charging equipment, but the bill would also speed up the response time for building permits and inspections for vehicle charging equipment.

The bill is scheduled for a committee hearing on May 2, 2011. You can follow the status of S.B. 730 here.

Solar Development Promoted By Department of Conservation for Williamson Act Land

The California Department of Conservation just issued the opinion "Considerations in Siting Solar Facilities on Land Enrolled in the Williamson Act" ("Opinion"), which provides suggestions to cities and counties for permitting solar development on property under contract of the California Land Conservation Act ("Act"). While the Opinion discusses nonrenewal and cancelling Act contracts as options to permit solar development, the critical part of the Opinion discuses how to determine if solar development is a compatible use for agricultural land under the Act. It provides guidelines and suggestions on the criteria that counties should follow in determining if solar development is a compatible use and suggests that solar development should be approved even if inconsistent with principles of compatibility, so long as certain criteria are met. Ultimately, it opines that the Act should not be an impediment to solar development.

As background, the Act promotes land conservation, with an emphasis on agricultural conservation. (California Government Code Section 51200 et seq.). It provides property tax relief to owners in exchange for an agreement that the land will not be developed or otherwise converted to another use for periods of 9 or 20 years. Currently, approximately 17 percent of California’s total acreage (or approximately 16.6 million acres) is restricted by Williamson Act contracts.

For the full opinion, click here.

Holders of Possessory Interests in Land are not “Owners” Under CERCLA

Attorney Authors: 

The Ninth Circuit held yesterday in City of Los Angeles v. San Pedro Boat Works that permittees, easement holders, licensees and other holders of mere possessory interests are not “owners” for purposes of liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

CERCLA imposes liability for environmental contamination on four classes of persons, including any person who owned or operated the facility at the time the hazardous substances were disposed. In City of Los Angeles, the City sued BCI Coca-Cola Bottling Company of Los Angeles ("BCI") for contamination caused by the operation of a boatworks facility in the Port of Los Angeles. The City alleged that BCI’s predecessor-in-interest was liable as an owner under CERCLA because it had held revocable permits to operate the boatworks facility.

As in past CERCLA cases, the Ninth Circuit looked to common law to determine whether BCI’s predecessor-in-interest was an owner under CERCLA. The Court found that under California common law, the holder of a revocable permit holds merely a possessory interest in real property, similar to that of an easement holder or licensee. Because possessory interests are distinct from ownership interests under common law, the Court held that BCI’s predecessor-in-interest was not a former owner of the boatworks, and BCI was not liable for the City’s cleanup costs under CERCLA.

While it is clear from the Court’s holding that owner liability under CERCLA does not extend to easements, licenses and permits, the Court left open the question as to whether owner liability may extend to leases or other property interests less than fee title.

Apply Now: EPA is Selecting Communities for Sustainability Technical Assistance

The EPA recently announced the Building Blocks Program, designed to help interested communities adopt sustainable planning methods and a collaborative effort between the U.S. Department of Housing and Urban Development, the U.S. Department of Transportation, and the U.S. Environmental Protection Agency (EPA). Chosen communities will receive technical assistance for the implementation of development approaches that “protect the environment, improve public health, create jobs, expand economic opportunity, and improve overall quality of life.” Technical assistance may include a memorandum including specific steps for the community to take towards sustainable development approaches, public engagement through a workshop, and/or consultation with city decisionmakers. The knowledge gained through the program may assist cities in implementing general plan updates or local climate action plans. Interested communities should submit a letter of interest that requests one of the listed technical tools by February 23, 2011.

Court Invalidates EIR’s Use of Post-Approval “Future” Baseline For Analysis of Project Impacts

The California Environmental Quality Act, or CEQA, requires agencies to compare the potentially significant impacts of proposed projects to an “environmental baseline” – which CEQA provides shall “normally” consist of environmental conditions as they exist when environmental review is commenced. The California Court of Appeal, Sixth District, has ruled that an Environmental Impact Report (“EIR”) may not compare impacts to a baseline consisting of projected future conditions when the project is expected to be complete. The ruling, in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, is important, since comparison to a “future” baseline had become a widespread “industry practice,” particularly for analysis of traffic and circulation impacts.

The City of Sunnyvale prepared an EIR for the proposed Mary Avenue Extension, consisting of a new bridge to be constructed over two freeways and light rail tracks. The EIR compared traffic impacts of the project, and noise and air quality impacts associated with traffic, to a baseline consisting of forecasted traffic conditions -- without the project -- in the year 2020, the year in which the City expected the project to be complete and in use. The EIR’s baseline included future traffic levels based on build-out under the City general plan, along with numerous roadway improvements planned to be in place by 2020. In response to comments criticizing the traffic analysis, city staff reported that it had been prepared consistent with impact-analysis guidelines of the Santa Clara Valley Transportation Authority, as part of that Authority’s responsibilities under the state’s Congestion Management Law.

In court, the petitioners attacked use of a future baseline. The petitioners cited CEQA Guideline section 15125, which requires an EIR to describe physical environmental conditions in the vicinity of a project “as they exist at the time the notice of preparation [of the EIR] is published or . . . , at the time environmental analysis is commenced, . . .” and which further provides that “[t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.”

In defense of its future baseline, the City cited Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, which the City argued gave it discretion to use a future baseline. In Save Our Peninsula, the court had stated that “. . . where the issue involves an impact on traffic levels, the EIR might necessarily take into account the normal increase in traffic over time. Since the environmental review process can take a number of years, traffic levels as of the time the project is approved may be a more accurate representation of the existing baseline against which to measure the impact of the project.” (Id. at 125 – 126.) Some agencies and legal practitioners had interpreted Save Our Peninsula to allow an agency with knowledge that environmental conditions would either improve or degrade by the time a project is constructed to select a future baseline, so long as the agency was careful to summarize the evidence supporting its selection of the future baseline.

Sunnyvale West Neighborhood Assn significantly narrows that interpretation. The decision acknowledges that the California Supreme Court, in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, endorsed Save Our Peninsula’s holding. But Sunnyvale West Neighborhood Assn further notes that the Supreme Court “never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the ‘baseline’ for assessing a project’s environmental consequences.” Therefore, Sunnyvale West Neighborhood Assn. invalidated the EIR’s use of a future baseline consisting of projected conditions in 2020 -- more than a decade after proposed project approval.

Sunnyvale West Neighborhood further holds that use of a post-approval future baseline is a “failure to proceed in a manner required by law,” and that agencies lack discretion to select such a baseline, regardless of whether they determine that a post-approval future baseline is supported by “substantial evidence.” The decision alternatively holds that, even if the City had possessed discretion to select a post-approval future baseline, the Santa Clara Valley Transportation Authority guidelines for traffic impact analysis under the Congestion Management Act would not provide an adequate basis for selecting a post-approval future baseline under CEQA. Finally, the court rejected an argument that the EIR’s use of a future baseline consisting of traffic conditions expected to be much worse than presently exist resulted in a “more conservative and realistic” impact assessment and was, therefore, not reversible “prejudicial” error. The court, after acknowledging that this argument had “some surface appeal,” held that use of a post-approval future baseline improperly “obscures the existence and severity of adverse impacts that would be attributable solely to the project under the existing conditions without the other assumed roadway improvements.”

Sunnyvale West Neighborhood does not rule out discussion of foreseeable changes and future conditions in an EIR, and notes that such discussion may be necessary to compliance with CEQA – for example, in discussion of cumulative impacts or the “no project” alternative. Nevertheless, the decision emphasizes the primacy of comparison to an “existing conditions” baseline. “Once a specific roadway project is proposed and becomes the subject of an EIR under CEQA, . . . a straightforward assessment of the impacts produced by the project alone on the existing environment is the foundational information of an EIR even where secondary analyses are included.”

Ninth Circuit Rejects Takings Challenge to Affordable Housing Regulations and Endangered Species Protections

The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City's affordable housing regulations and protections for the endangered California Tiger Salamander ("CTS").

In Mead v. City of Cotati, Ninth Circuit Case No. 09-15005, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission's decision to issue a permit for his project - (1) comply with the City's affordable housing regulations and (2) comply with guidance issued by the wildlife agencies for the protection of the endangered CTS.

The Pacific Legal Foundation argued that both conditions were exactions and therefore should be analyzed under the takings test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). They then argued that equitable relief is an available remedy under the Nollan/Dolan test and asked the court to enjoin the City from enforcing the two conditions. The City, represented by Meyers Nave, disagreed and explained that (1) the issues were not ripe for review, (2) a generally applicable development fee is not a land use exaction, and 3) the proper test to determine whether a taking had occurred was the Penn Central test, not the Nollan/Dolan test.

During the litigation, PLF announced on its website that the lawsuit against the City of Cotati was ground zero in its national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF's entreaties to soften the takings standards for property owners. In reaching its conclusion, the court agreed with the City on all grounds. This decision reaffirms the viability of the ripeness doctrine and the limited application of the Nollan/Dolan takings test in the Ninth Circuit.

Ninth Circuit Clarifies Scope of Owner/Operator Liability Under CERCLA

Attorney Authors: 

On July 22, 2010, in State of California Department of Toxic Substances Control v. Hearthside Residential Corporation, the Ninth Circuit held that owner liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is measured from the date cleanup costs are incurred rather than the date the lawsuit seeking reimbursement for cleanup costs is filed.

In this case, Hearthside Residential Corporation (Hearthside) purchased an undeveloped tract of wetlands in 1999 that it knew was contaminated with polychlorinated biphenyls (PCBs). Two years later, Hearthside entered into a consent order with the State of California Department of Toxic Substances Control (DTSC) under which it agreed to remediate its property. Hearthside, however, refused to remediate adjacent residential parcels that DTSC believed had been contaminated by the PCBs on Hearthside’s property. As a result, DTSC contracted to clean up the adjacent parcels itself and incurred cleanup costs between July 2002 and October 2003.

Hearthside completed the remediation of its property in December 2005, and then sold it to the California State Lands Commission that same month. In 2006, DTSC filed a lawsuit against Hearthside under CERCLA seeking reimbursement for the cleanup costs DTSC had incurred to remediate the adjacent parcels. DTSC alleged that Hearthside was liable as an “owner” under CERCLA because Hearthside’s former property was the source of the contamination and Hearthside owned the source property at the time DTSC incurred cleanup costs. Hearthside denied liability, arguing that it was not an “owner” under CERCLA because ownership status is determined at the time the lawsuit is filed, and Hearthside was not the owner of the source property at the time DTSC filed its complaint.

CERCLA is silent as to the date from which ownership is measured. Therefore, the Ninth Circuit looked to CERCLA’s statute of limitations and purpose to determine how ownership should be measured . The Ninth Circuit concluded that measuring ownership at the time cleanup costs are incurred is most consistent with CERCLA’s statute of limitations, which accrues from the time a removal action is completed or a remedial action is initiated on a site, and with CERCLA’s purposes of encouraging responsible parties to clean up property quickly and to achieve an early settlement with environmental regulators.

Since 2001, former property owners were deemed responsible parties under CERCLA only if they owned the property at the time the contamination occurred. Now, under the Ninth Circuit’s holding, former property owners may also be responsible parties if they owned the property at the time cleanup costs were incurred.

Affordable Housing Regulations Survive Another Challenge

The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City’s affordable housing regulations and protections for the endangered California Tiger Salamander. (Click link to read the opinion in Mead v. City of Cotati, Ninth Circuit Case No. 09-15005.) In 2008, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission’s decision to issue a permit for his project – comply with the City’s affordable housing regulations and comply with guidance issued by the wildlife agencies for the protection of the endangered California Tiger Salamander ("CTS"). On PLF’s website they announced that the lawsuit against the City was ground zero in their national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF’s entreaties to soften the takings standards for property owners. Not surprisingly, this case no longer appears as the poster child on PLF's website.

Home on the Range: Ninth Circuit Affirms U.S. Fish and Wildlife Service’s Significant Discretion in Designating Critical Habitat for Endangered Species

The U.S. Fish and Wildlife Service ("Service") is often beset with litigation when it designates critical habitat for a species listed as endangered or threatened under the Endangered Species Act (“ESA”)--by environmentalists who feel the designation is insufficient, and by industry representatives who argue that it is too broad. In Arizona Cattle Growers' Association v.

Protected Delta Fish Relieved That State Agencies are People Too

The Department of Water Resources ("DWR"), a state agency, operates a pumping system in the Sacramento -San Joaquin Delta that results in the taking of three fish species listed as threatened or endangered under the California Endangered Species Act ("CESA"). DWR was sued by Watershed Enforcers, a nonprofit corporation, to stop DWR from pumping unless and until it obtained a permit authorizing the take of the listed fish species under CESA. Three local water agencies intervened in the lawsuit arguing that DWR is not a "person" as that term is defined in CESA.

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”). AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt.

CEQA Greenhouse Gas Guidelines Effective Today

Today the Greenhouse Gas Amendments to the CEQA Guidelines, which were mandated by Senate Bill 97 and codified in Public Resources Code section 21083.05, are effective. The Natural Resources Agency adopted Amendments to the CEQA Guidelines for greenhouse gas emissions back in December of 2009. These Amendments require the quantification and mitigation of greenhouse gas emissions. For more information click here.

CEQA Analyses of New Projects and Projects that Significantly Expand Existing Operations Need to Use Actual Physical Conditions as Environmental Baseline, Not Maximum Permitted Conditions

In Communities for a Better Environment v. South Coast Air Quality Management District, the California Supreme Court held that the California Environmental Quality Act (Pub. Resources Code, §§ 21000, et seq. (“CEQA”) requires an agency analyzing the “worst case” emission impacts of a new refinery project to analyze emission impacts of a new refinery project against the existing facility’s actual current emissions, and not with the facility’s maximum permitted emission levels. The Court reasoned that the refinery project differed from proposals in past cases that simply modified a previously analyzed project or continued operation without significant expansion. The Court’s decision is an important clarification of CEQA baseline principles. Projects that involve more than a mere modification of a previously analyzed project, or involve significant expansion of existing operations, need to be analyzed against actual physical conditions, not maximum permitted conditions.

Defendant South Coast Air Quality Management District (“District”) had prepared a negative declaration analyzing the impacts of ConocoPhillips’s proposal for an ultra-low-sulfur diesel fuel project, and concluded that the project would not adversely affect the environment. The District acknowledged that, in a “worst-case scenario,” the project would create hundreds of pounds of additional nitrogen oxide (NOx) emissions per day (in excess of the District’s 55 pounds per day standard). However the District did not consider the emissions to be part of the project because the emissions did not exceed the maximum levels allowed under existing permits. The Court found this to be an improper application of the general rule that the “physical environmental conditions,” as they exist at the time environmental analysis begins, “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” (CEQA Guidelines, § 15125(a).) Accordingly, the Court concluded that it was inconsistent with established CEQA principles to compare the proposed project to what could lawfully happen under the existing permits, rather than to what was actually happening.

The Supreme Court distinguished the matter from a line of cases that relied on maximum operational levels allowed under existing permits. In each case, the Court noted, the subject project was “merely a modification of a previously analyzed project and hence requiring only limited CEQA review ... or as merely the continued operation of an existing facility without significant expansion of use and hence exempt from CEQA review.” The same could not be said for the ultra-low-sulfur diesel fuel project, as it was adding a new refinery to the facility and would require increase operation of other equipment. Finally, the Court concluded that the record—specifically the data in the negative declaration—supported a fair argument that the project will have a significant adverse effect on the environment. The Court thus affirmed the Court of Appeal’s direction to prepare an EIR.

Federal Government Stalls Clean Air Act Greenhouse Gas Regulation While California Forges Forward

California has been forging ahead with many types of climate change regulations that address Greenhouse Gas (GHG) emissions from land uses, vehicle use, construction and stationary sources. For example, the State has regulated GHGs through California Environmental Quality Act (CEQA) in accordance with SB 97, and regulated the interaction between vehicle use and land use development in accordance with SB 375. Most of these State regulations originate from AB 32, which requires the State to reduce GHG emissions to 1990 levels by no later than 2002. AB 32 also required the creation of a GHG registry for stationary sources (industry). Recently, the Bay Area Air Quality Management District issued mandatory GHG requirements in an air pollution permit for a local power plant.

In contrast to the State, federal regulation of GHGs emissions from stationary sources through the Clean Air Act (CAA) has stalled. You may recall that over two years ago the Supreme Court ruled that carbon dioxide is a pollutant subject to Environmental Protection Agency (EPA) regulation under the Clean Air Act. Environmental advocates have been criticizing the EPA for delaying GHG regulations of stationary sources at the federal level, according to the New York Times. Now, federal legislators are also attempting to delay EPA regulations for a set amount of time. Both Senator Jay Rockefeller (D, W. Va.) and Representative Nick Randall (D, Wa.) have introduced legislation in the Senate and the House, respectively, that would delay the EPA from regulating GHGs emitted from stationary sources (such as coal-fired power plants) for two years. But not all legislators are in support of such bills. The Washington Post recently reported that Robert C. Byrd, a democrat of West Virginia and colleague of Jay Rockefeller, will not support Rockefeller’s proposed bill. Byrd believes that EPA Administrator Lisa Jackson's recent letter stating that the EPA will delay, for a year, the application of stronger standards requiring increased efficiency or reduced pollution at large power plants and factories is enough. The proposed Senate and House bills are likely an attempt to delay EPA regulations that would require major GHG stationary sources to implement "best available control technology” pollution control measures, even if these measures would render construction of new plants cost-prohibitive.

Despite California's progress in regulating GHGs, it also faces a potential suspension of GHG regulation through an initiative measure to suspend AB 32, as we discussed in this post. Proponents of the legislation stalling GHG regulation at the Federal level and the initiative stalling it at the state level both cite to economic concerns as the purpose of these delays.

Mitigation Measures May Survive Expired Approval

The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area. Even though the previous approvals had expired, the court in Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation. Read more here.

Departments Revoke Recent Changes To Endangered Species Act, Section 7 Consultation Requirements

The Departments of Commerce and the Interior revoked an Endangered Species Act (ESA) rule previously enacted by the Bush administration. The Rule had expanded the circumstances in which an agency may determine not to engage in Section 7 consultations prior to undertaking an action that may affect threatened or endangered species. In revoking the rule, the Departments were responding to a March 2009 Executive Order in which President Obama requested that the Departments to formally reconsider this rule.

Now that the rule is revoked, federal agencies must complete the requisite Section 7 consultations with the U.S. Fish and Wildlife Service and National Oceanic Atmospheric Administration before taking actions that may affect threatened or endangered species.

The Department of the Interior press release announcing this decision is available here.

Agencies Must Either First Complete CEQA Review or Retain Discretion to Modify or Cancel Contracts Subject to CEQA Until Environmental Review is Complete

The Fourth District Court of Appeal ("Court") recently set aside a water supply agreement between a water district and a developer because the agreement improperly committed the water district to a definite course of action without adequate review under the California Environmental Quality Act (CEQA) in the case Riverwatch et. at. v. Olivenhain Municipal Water District. Click here to read on.

City of Cotati Defends Affordable Housing and the California Tiger Salamander

The Pacific Legal Foundation ("PLF") recently filed a lawsuit in federal court against the City of Cotati's inclusionary housing ordinance which requires new development to set aside affordable housing units or pay a fee to finance affordable housing. PLF, who represents the plaintiff developer, claims that the City is trying to force the developer to subsidize affordable housing, thus creating an unlawful taking. Additionally, PLF alleges that a condition imposed on the development project for mitigation of impacts on an endangered species, the California Tiger Salamander, is an unlawful taking. In response to PLF's lawsuit, the City filed a motion to dismiss for failure to state a claim for which relief can be granted. The City is represented by Meyers Nave.

Trial Court Rules Global Warming Analysis Not Required Under CEQA

A Riverside County Superior Court judge ruled that there was no legal requirement to analyze greenhouse gases (GHGs) and global warming impacts under the California Environmental Quality Act (CEQA) (Highland Springs v. City of Banning, Case No. 460950 (Riverside County Superior Court, January 29, 2008)).

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