Client Alerts

The California state legislature and courts as well as local governments are continuously changing the legal landscape.  Staying abreast of new laws, regulations and other legal developments, and analyzing their impact on local governments is what makes our attorneys some of the best in the state. In addition, we write timely alerts to keep our clients informed of developing legal news and analysis.

Client e-Alerts are emailed to our clients, and they can also be viewed on our website.  If you are interested in receiving our Client Alerts via email, please complete the subscription information in the left column.
Some of our most recent alerts are presented below grouped by their practice area. Older alerts are available in the Archives, which can be accessed via the links in the left column.

Construction and Facilities

New Legislation to Affect Public Contracting and Prevailing Wage Laws

July 18, 2014, Richard Pio Roda

The Governor has recently signed into law SB 854, which mandates several changes in public contracting and prevailing wage laws. SB 854 took effect immediately; however, its provisions affecting public entities apply only as of 2015.

Environmental Law

Ninth Circuit Expands Judicial Scrutiny of CERCLA Settlement

August 8, 2014, Gregory J. Newmark, Lauren E. Quint

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. 

In a dissent, Judge Consuelo Callahan stated that the majority ignores "the critical role that Congress envisioned for the states under CERCLA and expands the level of scrutiny required for state-sponsored CERCLA settlements.... The decision will ultimately make it more difficult for states to...remediat[e] the numerous polluted sites that blight our nation."  Judge Callahan asserted that state environmental agencies, like U.S. EPA, should be entitled to significant deference in light of the agencies' expertise, CERCLA's policy encouraging settlements, and a recognition that settlements are generally negotiated at arms-length by a party acting in the public interest.

The majority therefore established a standard of review for district court consent decree approval.  A district court must "explain in a reasoned disposition why the evidence indicates that the consent decrees are procedurally and substantively 'fair, reasonable, and consistent with CERCLA's objectives.'"  To fulfill this responsibility, the district court must, inter alia, engage in a comparative analysis of the proposed settlement amounts and find that liability is properly apportioned among the settling parties based upon an acceptable measure of comparative fault.  Failure to perform this comparative analysis is an abuse of discretion.

The question now becomes whether expanding the level of judicial scrutiny for CERCLA consent decrees will discourage early settlement, especially in the case of de minimis parties.  If other parties oppose entry of the consent decree, it may be challenging for plaintiff state agencies and settling parties to efficiently and economically meet the Ninth Circuit's standard.

First Amendment

Ninth Circuit Upholds Reasonable Restrictions on Solicitation of Funds at LAX

August 27, 2014, Jennifer E. Faught, Margaret Rosequist

Last week, the Ninth Circuit decided the final piece of a decades-old solicitation case, International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, 2014 WL 4086794. The religious society, referred to as "ISKCON" by the Court, had challenged, under both the First Amendment and the California Constitution, the Los Angeles airport's ban on the continuous or repetitive requests for the immediate receipt of funds in the airport terminals, parking lots, and on the sidewalks adjacent to both areas. The Ninth Circuit affirmed the lower court's ruling that the ordinance in question was a reasonable, viewpoint-neutral restriction on expressive activity at LAX under the First Amendment. Key to the Court's finding was the fact that the parties agreed that the forum at issue was a nonpublic forum. ISKCON likely did not challenge the classification of the forum given the Supreme Court's decision in International Society for Krishna Consciousness v. Lee (1992) 505 U.S. 672, in which the Court found that airport terminal buildings were a nonpublic forum.   

Land Use

Supreme Court Holds Projects Approved By Council-Adopted Initiative Are Exempt From CEQA

August 8, 2014, Edward Grutzmacher, Amrit S. Kulkarni

The California Supreme Court ruled yesterday in Tuolomne Jobs & Small Business Alliance v. Superior Court (Walmart) that when a city council receives a voter initiative petition to approve a project and decides to adopt the initiative measure without alteration, its decision is not subject to the requirements of the California Environmental Quality Act (“CEQA”), and therefore does not require an Environmental Impact Report or other CEQA document for the action proposed in the initiative measure.

Proposed OEHHA Changes Could Dramatically Increase Number of Projects with Significant Health Risk Impacts

July 30, 2014, Peter S. Hayes, Amrit S. Kulkarni

The Office of Environmental Health Hazard Assessment (“OEHHA”) has proposed sweeping changes to its Air Toxics Hot Spots Program Guidance Manual for the Preparation of Risk Assessments—more commonly known as Health Risk Assessments or “HRAs.”

Municipal and Special District Law

Supreme Court to Review Decision on Whether Messages on Private Devices and Accounts are Public Records

July 7, 2014, Nicholaus W. Norvell, Ruthann G. Ziegler

The California Supreme Court will review a lower court decision that e-mails and other messages sent or received by public agency officers and employees on private electronic devices or accounts are not "public records" under the California Public Records Act   Last week, the Court decided it would review the California Court of Appeal's decision in City of San Jose v. Superior Court (Smith) (Mar. 27, 2014, H039498).

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