Ninth Circuit Vacates Condition Registration for Nanosilver-containing Pesticide Due to Lack of Evidence that its Use is in The Public Interest

Natural Resources Defense Council v. E.P.A., __ F.3d ___, 2017 WL 2324714 (9th Cir. May 30, 2017). The Ninth Circuit Court has vacated the conditional registration of the pesticide NSPWL30SS (“NSPW”)—an antimicrobial materials preservative that uses nanosilver as its active ingredient—on the grounds that the Environmental Protection Agency (“EPA”) failed to provide substantial evidence that the use of the ingredient was in the public interest. Id. at *2. Continue Reading

Ninth Circuit Affirms Forest Service’s Authority to “Choose Jobs Over Wolves”

In re Big Thorne Project and 2008 Tongass Forest Plan, __ F.3d __, 2017 WL 2233755 (9th Cir. May 23, 2017). Plaintiffs, environmental conservation and activist organizations, brought suit against the U.S. Forest Service and Department of Agriculture (collectively, “Forest Service”) on behalf of individuals who fish, hunt, and “enjoy” Alaska’s Tongass National Forest. Id. at *3. Plaintiffs alleged that the Forest Service violated the National Forest Management Act (the “Act”) by approving either the 2008 Tongass Forest Plan or the Big Thorne logging project. Id. at *2. The Ninth Circuit affirmed the district court’s summary judgment in favor of the Forest Service, holding that the Forest Service’s approval was neither arbitrary nor capricious because the Act expressly grants the Forest Service discretion to balance competing interests, and the Forest Service reached its determination after a thorough analysis rationally supported by the evidence. Id. at *5. Continue Reading

Oklahoma Court Dismisses Fracking Earthquake Case Due to Court’s Lack of Scientific Expertise

Sierra Club v. Chesapeake Operating LLC et al., __ F. Supp. 3d ___, 2017 WL 1287546 (W.D. Okla. 2017). The Sierra Club filed a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) against Chesapeake Operating LLC, Devon Energy Production Co. LP, Sandridge Exploration and Production LLC, and New Dominion LLC (collectively, “defendants”), alleging that the defendants’ fracking activities increased the number and severity of earthquakes in Oklahoma. Id. at *1. The Sierra Club sought declaratory and injunctive relief from the court requiring the defendants to reduce their wastewater disposal volume, reinforce structures vulnerable to earthquakes, and establish an earthquake monitoring center. Id. The defendants moved to dismiss the complaint, contending that the court should decline to exercise jurisdiction under the Burford abstention and primary jurisdiction doctrines because the  (“OCC”) has implemented new regulations and water disposal directives in response to increased seismic activity. Id. at *2. The district court granted the defendants’ motion to dismiss, deferring to the OCC expertise on both grounds. Id. at *10. Continue Reading

Faceoff with Federal Government Possibly Looming Following California Supreme Court CEQA Ruling; Cal High Speed Rail Project Also Vulnerable

In July 2017, the California Supreme Court determined the federal Interstate Commerce Commission Termination Act of 1995 (49 U.S.C. § 10101 et seq.) (“ICCTA”) does not preempt the application of the California Environmental Quality Act of 1970 (Pub. Res. Code § 21000 et seq.) (“CEQA”), a state statute, to a state public entity railroad project on a rail line owned by that same entity, the North Coast Rail Authority (“NCRA”). Friends of the Eel River resolves a split among the California Courts of Appeal.[1] However, the decision may conflict with federal precedent and could eventually reach the Supreme Court. As the majority opinion and the dissent both emphasize, the decision creates a direct conflict with the federal Surface Transportation Board’s (“STB”) determination that ICCTA preempts any application of CEQA to California’s state-owned, high-speed rail project.[2] Thus, the dispute over CEQA’s application to High-Speed Rail may need to be resolved by the U.S. Supreme Court. Additionally, Friends of the Eel River introduces more legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco, as it appears to require that project to comply with CEQA, which could lead to additional litigation. Continue Reading

Corps and EPA Solicit Public Comment on Restoring Pre-Clean Water Rule Regulations

On July 27, 2017, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their proposed rule to rescind the Clean Water Rule. This is the same rule that was released in pre-publication form in June, which we described in a previous entry. Continue Reading

California Proposes New Permitting Procedures for Impacts to Wetlands and Waters of the State

On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017. Continue Reading

High Court Upholds Long-Term GHG Emissions Analysis, But Warns Agencies to Keep Pace with Regulatory Advancements: Lessons from Cleveland National Forest Foundation v. SANDAG

Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603

Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum.  The California Supreme Court recently upheld the San Diego Association of Government’s (“SANDAG”) determination that the year 2050 statewide GHG reduction goals set forth in Executive Order S-3-05 (“Executive Order”) issued in 2005 did not create a CEQA threshold of significance an agency must follow.  However, the court did so for reasons different than SANDAG stated in the response to comments on the Environmental Impact Report (“EIR”) on proposed amendments to its Regional Transportation Plan (“RTP”).  In Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603, the court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance because the Executive Order does not specify any plan or implementation measure to achieve its goal.”  The EIR’s long-term GHG analysis adequately informed the public and agency, in part, because SANDAG summarized the Executive Order in the EIR’s regulatory framework section and disclosed the increase in GHG emissions in 2050 compared to the 2010 baseline.  An analysis of “Lessons Learned and Reaffirmed” by the case appears at the end of this post.

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Are You Sure You Want to Challenge That Permit Condition?

Barbara Lynch et al. v. California Coastal Commission, Case No. S221980

The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their objections to final judgment before accepting the benefits of the permit. Though the case involved a Coastal Commission permit, it has broader implications discussed below.

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EPA, Corps Propose Rescinding Clean Water Rule

The Environmental Protection Agency and Army Corps of Engineers on Tuesday announced a proposed rulemaking that would rescind the “Clean Water Rule” — which the agencies finalized in 2015 to revise the definition of “waters of the United States” subject to federal jurisdiction under the Clean Water Act — and recodify the prior regulatory definition of such waters. The action essentially would maintain the status quo, since the Sixth Circuit had already enjoined implementation of the Clean Water Rule nationwide pending the outcome of a legal challenge. But the agencies also said they intend to conduct a separate rulemaking to promulgate a new definition of waters of the United States that will consider the principles outlined in Justice Scalia’s plurality opinion for the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006). Both the repeal and the new definition would be consistent with direction given in an executive order signed by President Trump on February 28, 2017. Continue Reading

City of Los Angeles Releases Draft Hollywood Community Plan Update

On June 13, 2017, the City of Los Angeles released its new Hollywood Community Plan (“Plan”) draft. The current plan dates back to 1988. In 2012, the City adopted an update to the community plan that was subsequently litigated and then rescinded by a Superior Court ruling. Thus, for the last several years, the City has used the 1988 community plan to guide land use decisions in Hollywood while adjusting to modern development trends in the area. Continue Reading

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