District Court Enjoins Federal Regulations Revising Scope of Clean Water Act Jurisdiction

North Dakota v. U.S. Environmental Protection Agency, No. 3:15-cv-00059 (D.N.D. Aug. 27, 2015)

A federal judge, Ralph R. Erickson, in North Dakota yesterday granted several states’ request for a preliminary injunction to halt implementation of the Environmental Protection Agency and U.S. Army Corps of Engineers’ new rulemaking redefining the scope of their jurisdiction under the Clean Water Act.  District Judge Ralph Erickson found “it appears likely” that, in promulgating the rule, the EPA both exceeded the authority Congress delegated to it, and violated the Administrative Procedure Act.  The court’s ruling comes one day before the new rule, which redefines “waters of the United States,” was set to take effect.

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EPA and the Army Corps Seeking to Consolidate Challenges to Recently Issued “Waters of the United States” Rule

Since the EPA and the Army Corps published the final Clean Water Act rule defining “waters of the United States” on June 29, 2015, 72 plaintiffs have filed ten separate complaints in eight federal district courts challenging the final rule. Additional district court actions raising facial challenges to the rule are expected to be filed in the near future. Plaintiffs in some of these cases have already filed motions for preliminary injunctions seeking to bar application of the rule.

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Commercial Lease Guaranties From Foreign Entities: What You Need to Know to Safeguard Your Security

In connection with a commercial lease with an international company, a commercial landlord is often asked to accept U.S.-based subsidiary as the tenant entity.  The U.S. subsidiary often does not have independent financials or credit history, leading the landlord to request additional lease security.  In this context, the landlord may be offered a guaranty from a foreign-based parent company.  Although it may seem prudent to accept a guaranty from an international entity with substantial assets, these guaranties present certain challenges.  Even if the foreign guarantor has significant financial strength, a guaranty may prove worthless if the landlord cannot collect on a judgment against the guarantor.   Continue Reading

Upcoming Speaking Engagement

Fourth Annual California EB-5 Conference Featuring Keynote Speaker Congressman Bob Goodlatte.

Sheppard Mullin is proud to announce that both John Tishler and Michael Gibson will be participating as panelists at the event, which is designed for an array of attendees, including those interested in the EB-5 program for project finance or immigration purposes. The 2015 California EB-5 Conference will offer attendees access to both advanced and introductory level panels on pertinent EB-5 program topics, ranging from EB-5 financing for real estate development to complex immigration legal issues, all of which will be discussed in detail by expert EB-5 industry speakers. Continue Reading

Changing Protected Status of Land Requires CEQA Compliance

Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (6/19/2015, 4th Civil No. B253935) (opn. modified on denial of rehearing, http://www.courts.ca.gov/opinions/documents/E059133M.PDF.)

In Paulek v. Western Riverside County Regional Conservation Authority, the California Court of Appeals, Fourth District, held that removal of the protected status from a parcel of land still needs to comply with the environmental review requirement of the California Environmental Quality Act (CEQA).  In doing so, the court concluded that the Western Riverside County Regional Conservation Authority’s (“Conservation Authority”) re-classification of land was a fundamental land use decision, akin to a change in zoning laws or a municipal general plan.   Continue Reading

High Standard for Invoking Equitable Estoppel Against the Government Reaffirmed

Schafer v. City of Los Angeles; Triangle Center, LLC, Real Party in Interest (6/17/2015, 3d Civil No. E059133)

The California Court of Appeal, Second District, recently re-affirmed the heightened standard for invoking equitable estoppel against the government.  In Schafer v. City of Los Angeles, the court rejected a claim that the City was estopped from requiring a property owner to abate a long‑standing parking lot use in violation of the City’s zoning code. Continue Reading

EPA and Corps Issue Rule Defining “Waters of the U.S.”

On June 29, 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) published a final rule defining “waters of the United States.” The rule becomes effective on August 28, 2015.  Because the Clean Water Act (“CWA”) grants regulatory authority only to areas under federal jurisdiction, the new rule will play a central role in determining when and to what extent the Corps and EPA will be involved in land use decisions.  It will affect many industries, including agriculture, energy development and transmission, transportation, and housing.
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California Supreme Court Upholds San Jose’s Inclusionary Housing Ordinance

In California Building Industry Association v. City of San Jose (Case No. S212072, filed June 15, 2015), the California Supreme Court upheld an inclusionary housing ordinance imposing affordable housing requirements as a valid exercise of a municipality’s police power, rather than an exaction subject to a constitutional takings analysis. Continue Reading

Abuse of Discretion Not Shown By Court’s Failure To “Show Its Arithmetic” in Significantly Reducing Claimed Attorney Fees in CEQA Litigation

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __  Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision to significantly reduce plaintiff Save Our Rural Community Environment’s (SOURCE) claim for attorney fees[1] from $231,098 to $19,176.  The Fourth District found that the court’s failure to provide an explicit analysis of its decision was not enough to indicate an abuse of discretion by the trial court.  The court determined reversal of the attorney fees award would require that the record contain some indication that the trial court had considered improper factors, or some evidence that the award had been snatched from “thin air.” Continue Reading

CEQA “Common Sense” Exemption Upheld; Environmental Baseline for Project Following Improvements Pursuant to an Emergency Exemption Clarified

CREED-21 v. City of San Diego (2/18/2015, 4th Civil No. D064186)

The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego’s approval of a project comprising emergency storm drainage repair and site revegetation. The decision addressed various CEQA issues, including the environmental baseline determination, the “common sense” exemption, and the “unusual circumstances” exception. Continue Reading

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