Real Estate, Land Use and Environmental Law Blog - Up-to-date information on Real Estate, Land Use and Environmental Law

By Jeffrey Rector 

Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some view this as the beginning of the end of the European Union’s ten-year carbon cap-and-trade experiment. A high profile failure of the EU ETS is likely to provide ammunition to critics California’s cap-and-trade program.

By Whitney Hodges, Randy Visser & Olivier Theard 

The landmark Global Warming Solutions Act of 2006 (“AB 32”) tasked the California Air Resources Board (“ARB”) with reducing greenhouse gas (“GHG”) emissions to 1990 levels by 2020. In adopting a scoping plan assembling a number of differing, but complementary, GHG reduction strategies, the ARB included a “cap-and-trade” program as one such strategy to help satisfy AB 32’s goals while allowing industry flexibility in choosing emissions reduction options (i.e., facilities could choose to buy pollution credits, or could choose to reduce emissions and sell credits on the market). The “cap-and-trade” program was deemed preferable to other potential options such as a carbon tax.

By Meredith Jones-McKeown

The chemical commonly known as “TDCPP” or “Tris” [Tris(1,2-dichloro-2-proply) phosphate)] is commonly used as a flame retardant in home furnishings (couches, chairs, pillows, and ottomans) as well as automotive products (seat padding, overhead liners, foams, and infant car seats). In October 2011, California’s Office of Environmental Health Hazard Assessment (OEHHA) listed TDCPP as a chemical on Proposition 65 list of chemicals.

By Heather Zinkiewicz

On June 18, 2012, Governor Brown directed the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (“Bureau”) to recommend changes to California’s four-decade-old flammability standard for upholstered furniture. Specifically, Governor Brown is seeking to reduce toxic flame retardants in furniture while still providing fire safety. Toxic flame retardants are found in a variety of items, such as high chairs and couches. Evidence suggests that toxic flame retardants harm the environment and are linked to liver and thyroid toxicity, neurological problems, and reproductive issues. The current guideline requires furniture and children’s products to withstand igniting when exposed to an open flame for up to twelve seconds. This standard has long been criticized by environmentalists, who say it leads to the increased use of flame retardant chemicals. Per Governor Brown’s instruction, this guideline will be revised to reflect modern manufacturing methods that can lower the use of harmful chemicals, including flame retardants, while protecting public safety.

By Robert Uram

On March 27, 2012, the comment period will close on a petition filed by the Center for Food Safety that calls for the FDA to issue new regulations requiring labeling of all foods produced using genetic engineering (GE). Docket No. FDA-2011-P-0723 (Filed October 12, 2011). Unlike many other developed countries – such as 15 nations in the European Union, Japan, Australia, Brazil, Russia and even China – the U.S. has no laws requiring labeling of genetically engineered foods.

By Heather Zinkiewicz

The State Water Board has recently released two documents: a "Citizen's Guide to Working with the California Water Boards” and "Annual Budget Pre-Approval Frequently Asked Questions.” The Department of Pesticide Regulation ("DPR”) has recently released "A Guide to Pesticide Regulation in California.” These documents clarify and explain certain water and pesticide regulations, respectively.

By Heather Zinkiewicz

In January, the Attorney General released a guidance document that details what the state will and will not approve in future private Proposition 65 lawsuit settlements[1]. This guidance provides clarity to both plaintiffs and businesses and is intended to limit the scope of any “public interest release” that plaintiffs can offer.

By Olivier Theard

In an effort to protect children (and, to a lesser extent, adults) from toxic exposure, California has banned the use of the controversial chemical Bisphenol A (BPA) in baby bottles and sippy cups, and has eliminated certain loopholes in the existing ban on lead and cadmium in jewelry. These laws follow earlier efforts to ban chemicals potentially injurious to humans. For instance, California banned the use of phthalates (a chemical often found in children’s toys) in 2009.

American Electric Power Co., Inc. v. Connecticut (June 20, 2011, No. 10-174) __ U.S. __

By Robyn Christo & Micah Bobo

In the battle over climate change, the Supreme Court once again set an important precedent in American Electric Power Co., Inc. v. Connecticut (“American Electric Power”). In an 8-0 decision written by Justice Ginsburg (Justice Sotomayor recused herself, presumably because she heard the matter while sitting on the Second Circuit), the Court held that Congress's delegation of the power to regulate greenhouse gasses to the Environmental Protection Agency (“EPA”), "displaces federal common law" relating to the abatement of carbon dioxide ("CO2") emissions.

By Keith Garner

The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.

Oakland Heritage Alliance v. City of Oakland (May 19, 2011, A126558) __ Cal.App.4th __

By Maria Pracher & Robyn Christo

In this case, the Court of Appeal for the First Appellate District rejected all of petitioner’s arguments regarding the adequacy of the seismic impact analysis and mitigation measures in a revised Environmental Impact Report (“EIR”) prepared for a project that proposed to convert 64 acres of maritime and industrial land along Oakland’s waterfront into residential, retail/commercial, open space and marina uses (“Project”).

By Randolph Visser and Whitney Hodges

Until recently, Association of Irritated Residents v. California Air Resources Board proceeded along the litigation path as smoothly as any environmental challenge might. However, things took an unexpected twist last week that has left unanswered questions and many spectators baffled.

Natural Resources Defense Council v. Los Angeles County, United States Court of Appeals for the Ninth Circuit, Case No. 10-56017 (March 10, 2011)

By Elizabeth Anderson

The Ninth Circuit Court of Appeals held that environmental groups were entitled to summary judgment after presenting evidence that the Los Angeles County Flood Control District ("District") had illegally discharged polluted stormwater into the Los Angeles River and San Gabriel River in violation of the federal Clean Water Act. The District has argued that the evidence did not show it was the source of the pollutants, only that it conveyed polluted stormwater. The Ninth Circuit rejected this argument and decided summary judgment was appropriate because monitoring stations located in a section of the municipal separate storm sewer system ("MS4") owned and operated by the District detected pollutants in excess of the limits set forth in the District's National Pollutant Discharge Elimination System permit ("Permit") and, after the polluted stormwater passes through these monitoring stations, it was discharged into the two rivers, causing or contributing to exceedances of water quality standards.

By Whitney Hodges

On January 21, a San Francisco Superior Court issued a proposed decision that could significantly delay the implementation of the Global Warming Solutions Act of 2006 ("AB 32"). In Association of Irritated Residents, et al. v. California Air Resources Board, Case No. CPF-09-509562, the Court held that the California Air Resources Board (CARB) failed to comply with the California Environmental Quality Act (CEQA). The Court found the CARB to have neglected to conduct a sufficient environmental impact review prior to adopting the State's AB 32 Scoping Plan (Plan).  Specifically, CARB failed to adequately analyze all potential alternatives and prematurely adopted the Plan prior to fully responding to public comment.

California Dep't of Toxic Substances Control v. Hearthside Residential Corp., No. 09-55389 (9th Cir. July 22, 2010)

By Betsy McDaniel and Adam Bailey

On July 22, the Ninth Circuit Court of Appeals held that under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," commonly referred to as the "Superfund" law), the owner of a contaminated site when cleanup costs are incurred is the "current owner" for liability purposes. The decision will provide clarity to state agencies or other entities that engage in the remediation of contaminated lands. In the event that a landowner refuses to accept responsibility for cleanup, the entity that performed the cleanup can easily determine whom to sue for repayment.

Connecticut v. American Electric Power Company Inc., ____F.3d ____, No. 05-5104 (2nd Cir. 2009)

By James Rusk

States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide ("CO₂") emissions that contribute to global warming, the Second Circuit Court of Appeals held this month. Although the 139-page opinion appears to open a new front in the fight over climate change, its full import is uncertain. The court held only that plaintiffs had standing, that they had stated public nuisance claims under the federal common law and that those claims were justiceable. It did not reach the merits of plaintiffs' claims, and it expressly noted that those common law claims could yet be displaced by federal legislative or rulemaking action. With that in mind, the case could prove more significant as an additional impetus for national greenhouse gas regulation than as a tool for judicial control of emissions.

By Randolph C. Visser, Jeffrey W. Forrest, & Michael Hansen

On May 4, the U.S. Supreme Court handed down its 8 to 1 decision in the much anticipated case of Burlington Northern & Santa Fe Railway Co., et al v. United States et al. (556 U.S.___ (2009)), which challenged the traditional notion of joint and several liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund") and challenged a new, expansive notion of arranger liability under CERCLA. The Supreme Court overturned the Ninth Circuit Court of Appeals' broad interpretation of arranger liability and may have lowered the bar for how Potentially Responsible Parties ("PRPs") can demonstrate apportionment liability, therefore avoiding CERCLA's expansive joint and several liability scheme.

By Kyndra Joy Casper

On February 19, 2009, California legislators ended a three-month-long stalemate and passed a budget designed to meet the $41 billion budget shortfall through 2010. A major provision in the bill package adopted as part of the proposed budget would delay the retrofitting of heavy diesel equipment, which would save the construction industry millions of dollars but hurt efforts to reduce harmful emissions.

By Misti Schmidt and Aaron Foxworthy

On August 4, 2008, San Francisco Mayor Gavin Newsom signed a new Green Building Ordinance (“Ordinance”) into law, amending the existing Building Code by inserting Chapter 13C. The goal of the Ordinance is to reduce the city’s carbon emissions to 20% below 1990 levels by 2012. The Ordinance aims to achieve that goal by phasing in more stringent building requirements over the next four years. The Ordinance provides that it will take effect 90 days from its adoption by the City (November 2, 2008), if the California Energy Commission (“CEC”) approves it by that time.[1]

By Olivier Theard

Summary

Two new rules promulgated by the South Coast Air Quality Management District (AQMD) that were designed to encourage development of newer, cleaner electric power plants by replacing older, more-polluting ones were recently vacated in a case pending in the Superior Court in Los Angeles.  The court decided that, in implementing the rules, the AQMD, which has broad jurisdiction to control air pollution in most of Southern California, violated the California Environmental Quality Act (CEQA) by failing to analyze the rules’ health and environmental impacts prior to their adoption.

Northwest Environmental Advocates, et al. v. United States Environmental Protection Agency (July 23, 2008, 9^th Cir. Case Nos. 03-5760, 06-17187, and 06-17188) __ F.3d ___

By Misty Calder

Plaintiffs Northwest Environmental Advocates, San Francisco Baykeepers, and The Ocean Conservancy (“plaintiffs”) challenged a regulation originally promulgated by the Environmental Protection Agency (“EPA”) in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (“CWA”).  That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits pursuant to the National Pollutant Discharge Elimination System (“NPDES”):  (1) discharge of effluent from properly functioning marine engines; (2) discharge of laundry, shower, and galley sink wastes from vessels; and (3) any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water.  The Ninth Circuit Court of Appeal upheld the ruling of the District Court that the regulation exempting the discharges was invalid.

By Kyndra Casper and Olivier Theard

On July 11, 2008 the U.S. Environmental Protection Agency (EPA) released an Advance Notice of Proposed Rulemaking (ANPR) in response to the U.S. Supreme Court’s April 2007 decision in Massachusetts v. EPA, 549 U.S. 497 (2007).  In Massachusetts, the Court ruled that greenhouse gases (carbon dioxide, methane, nitrous oxide and hydrofluorocarbons) satisfy the Clean Air Act’s (CAA) definition of “air pollutant,” and thus can be regulated under the CAA if the EPA finds that greenhouse gas emissions constitute an “endangerment” to public health or welfare.

By Kyndra Joy Casper

On July 10 the Air Resources Board (ARB) released information about its revised draft regulation that will require retrofits and engine replacements on diesel-powered trucks and buses traversing California roadways beginning in 2012.  In contrast to the January, 2008 proposal to have fleets replace trucks twice in a nine-year span, the revised proposal will heavily rely on retrofitting during the first two years and will thereafter require only one truck replacement over eleven years.  This revised proposal will preserve important public health benefits at a lower cost.

By Randolph C. Visser and Kyndra Joy Casper

The Global Warming Solutions Act of 2006 (AB 32) requires the California Air Resources Board (ARB) to prepare a Scoping Plan to achieve reductions in greenhouse gas (GHG) emissions in California.  The AB 32  Draft Scoping Plan contains the main strategies California will use to reduce the GHGs that cause climate change.  On June 26, 2008 the ARB presented the initial Draft Scoping Plan to the ARB Board for review.

By Olivier F. Theard and Kyndra Joy Casper

In an effort to reduce airborne diesel pollution, the California Air Resources Board has adopted a "no idling" rule for in-use off-road diesel-fueled vehicles, limiting idling for such vehicles to no more than 5 minutes.  The new rule will go into effect June 16, 2008.  This rule adds to a host of other off-road diesel-fueled vehicle regulations to reduce diesel particulate matter and criteria pollutant emissions.

By James E. Pugh

On April 22, 2008, the City of Los Angeles passed Ordinance No. 179820 and thereby established a city-wide “Green Building Program.”  The program is modeled after the U.S. Green Building Council’s Leadership in Energy and Environmental Design (“LEED”) building standards.  The program addresses five key areas including: (1) site location; (2) water efficiency; (3) energy and atmosphere; (4) materials and resources; and (5) indoor environmental quality.  The new ordinance amends the Los Angeles Municipal Code (“LAMC”) by adding new Sections 16.10 and 16.11, which will likely have a considerable affect on the type of developments the City will approve.

On April 10, 2008, the Army Corps of Engineers ("Corps") and the Environmental Protection Agency ("EPA") issued a final rule governing mitigation requirements for unavoidable impacts to wetlands and other waters of the United States under the section 404 program of the Clean Water Act.  70 Fed. Reg. 19594. This rule is a major change to the Section 404 program.  It was published with nearly 80 pages of preamble in the Federal Register, and the rules itself is more than 30 pages.  It will take some time for the Corps staff and the regulated community to learn the new rule.  The rule is sufficiently complex that it will be many years before the effect of the changes will be fully understood.

California Battles The United States Environmental Protection Agency Over the Right to Curb Greenhouse Gas Emissions From Vehicles

By Olivier Theard

December and January were pivotal months in the continuing struggle over implementation of California's stringent automobile greenhouse gas regulations.  California has tried for some time to impose its limits, adopted as regulations under AB 1493, which would require a 30% reduction in vehicle emissions by 2016, with phased cuts starting in model year 2009.  California's push to cut vehicle emissions is a major component of its mandate under the Global Warming Solutions Act, which requires a reduction in greenhouse gas emissions to 1990 levels by 2020.  However, recent developments at the federal level have undermined California's efforts.  After a whirlwind of court decisions and passage of a federal energy bill, the EPA denied California a waiver under the Clean Air Act that would allow California to implement its laws.  California has sued to reverse the decision.

By Olivier F. Theard and Maria J. Gangemi

I. Introduction

On November 5, California filed suit for an injunction to compel EPA to rule on California's requested waiver from the Clean Air Act's prohibitions of states enforcing their own greenhouse gas emissions standards for automobiles.  Several other states have intervened, seeking to adopt California's standards as well.

Thanks also to LexisNexis for listing this blog as one of its "Top Blogs" on the topic of environmental law and global climate change.

By Randolph Visser and Olivier Theard

I. Businesses in Major Economic Sectors Are Affected by Reporting Requirements

A. Summary of the Proposed Regulations

Pursuant to the Global Warming Solutions Act (which requires that California reduce greenhouse gas emissions to 1990 levels by 2020), the California Air Resources Board (ARB) has issued draft final regulations that will require California businesses across most major economic sectors to account for and report on their greenhouse gas emissions.  Emissions reporting is the first of many significant provisions under the Act that will affect the operation of California businesses, especially those in industries that emit high levels of greenhouse gases.  ARB estimates that the sectors which will be required to report emit 94% of the total greenhouse gases produced in California from industrial and commercial stationary sources.

People of the State of California v. General Motors Corporation et al. (Sept. 17, 2007, C06-05755) ___Cal.App.4^th ___;

By Maria J. Gangemi

Introduction/Holding:

In a major case brought by the State of California seeking to hold automakers liable for global warming, District Judge Martin Jenkins in San Francisco granted defendants' motion to dismiss the State's nuisance causes of action under federal and state law.  The judge determined that it was a non-justiciable political question.

By Randolph C. Visser and Olivier F. Theard

Pursuant to AB 32 (the Global Warming Solutions Act) the California Air Resources Board (CARB) recently announced that it would go beyond the minimum statutory requirements and has proposed additional “early action measures” designed to help California achieve its statutory goal of reducing greenhouse gas emissions to 1990 levels by the year 2020.  If adopted, the new measures will significantly increase the current list of early action measures which were approved by CARB in June 2007.

By Randolph C. Visser and Olivier F. Theard

Introduction: The California Air Resources Board (ARB) has proposed a new regulation aimed at reducing emissions of diesel particulate matter (PM), oxides of nitrogen and greenhouse gases from in-use, on-road diesel-fueled vehicles.

By Randolph C. Visser and Olivier F. Theard

On July 27, the California Air Resources Board (ARB) passed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from off-road diesel engines.  The regulations require businesses to retrofit or "turn over" their fleets over time.  A summary of these regulations was posted on June 15.  The final version of the regulations contains a few noteworthy revisions, summarized below:

United States v. Atlantic Research Corporation (2007) __ U.S. ___ [http://www.supremecourtus.gov/opinions/06pdf/06-562.pdf].

By Randy Visser and Olivier Theard

In a boon to private parties who undertake to voluntarily clean-up contaminated sites, the Supreme Court in United States v. Atlantic Research Corporation established that parties who undertake clean-up efforts may bring cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against potentially responsible parties (PRPs).  Before this decision, there was a split in the circuit courts regarding whether private parties could recover costs of clean-up, or whether their exclusive remedy was a contribution action which could only be brought after they were sued by the government.  The Supreme Court, in a unanimous opinion by Justice Thomas, ruled that a private party may sue for cost recovery even if that party has not been sued or paid a judgment or settlement to the government.

By Randolph C. Visser and Olivier F. Theard

Recognizing that many industrial businesses in California operate using older, and thus more polluting, off-road diesel vehicle fleets, the California Air Resources Board (CARB) has proposed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from such vehicles and require businesses to retrofit or "turn over" their fleets over time.

By Michael Wilmar and Misti Schmidt

On May 31, the Court of Appeal for the First Appellate District endorsed the State Water Resources Control Board’s four-part test of whether groundwater is a “subterranean stream flowing through known and definite channels.” The Board first used this new test in its 1999 decision, In re Garrapata Water Co., which expanded the Board’s authority over groundwater.

By Michael Wilmar and Jeffrey Forrest

In Citizens For Responsible Equitable Environmental Development (CREED) v. City of San Diego Redevelopment Agency, 2005 Cal. App. LEXIS 1850, the California Court of Appeal, Fourth District, recently rejected the appeal by opponents, CREED, of a hotel development project claiming that the City of San Diego Redevelopment Agency ("City") violated CEQA when the City approved the hotel project without first requiring a project-specific EIR.

The California Court of Appeal, Second District, threw out a jury award of $14,275,237 in damages against Shell Oil Co. in an action by plaintiff Watson Land Company concerning groundwater and soil contamination from a gasoline pipeline leak. The appellate court ruled that the jury erred when it found that Shell derived a $14,275,237 "benefit" from the leak and resulting contamination, and misapplied Civil Code section 3334 in awarding that amount to plaintiff.

By Michael Wilmar

Recently, three separate panels of the California Court of Appeal rendered opinions on the availability of attorneys' fees for plaintiffs who bring CEQA challenges. The decisions make clear that courts have considerable latitude in determining who is the "successful party" and whether there has been a "significant benefit" under the private attorney general statute.

The federal court of the Eastern District of California has published its decision in Kotrous v. Goss-Jewett Co. of Northern California, Inc. (2005 WL 1417152, E.D. Cal. Jun. 16, 2005), concerning whether a potentially responsible party in CERCLA hazardous waste cases may bring a contribution claim.

(July 7, 2004) 04 C.D.O.S. 6060

By Maria Pracher

Introduction

In 2002, the Town of Apple Valley approved a project allowing the construction of a 1.2 million square foot distribution center with related outbuildings on a 300 acre site. The City Council certified an EIR for the project, adopted findings, and adopted a statement of overriding considerations for seven significant unavoidable environmental impacts. Neither the EIR nor the various public notices issued in connection with the EIR and the public hearings on the project revealed that Wal-Mart would be the project's end user.