Taxpayers for Accountable School Bond Spending v. San Diego Unified School DistrictNo. D060999 (4th Dist. Div. 1, April 25, 2013) 

By Claudia Gutierrez 

In Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999) the Court of Appeal for the 4th District held that the San Diego Unified School District (the “District”) must prepare an environmental impact report (“EIR”) on installation of new stadium field lighting and other improvements at Hoover High School to permit nighttime events because there was a fair argument that impacts on neighborhood parking could be significant. The court specifically declined to follow earlier case law to the contrary. The court also held that the District was prohibited from using proceeds of a school bond other than for the purposes specifically listed.

Continue Reading Bright Lights Not a Significant Impact; Lack of Parking May Be

By Claudia Gutierrez

In Golden Gate Land Holdings, LLC v. East Bay Regional Park District, the California Court of Appeals considered whether an Environmental Impact Report (“EIR”) must be prepared where the California Environmental Quality Act (“CEQA”) and eminent domain law intersect. Golden Gate Land Holdings, LLC, the owner of the property in question, argued that the East Bay Regional Park District, tasked by the California Legislature to complete the Eastshore State Park (“Eastshore Park”), had to complete environmental review prior to taking any action, including adoption of the resolution of necessity for the condemnation of a portion of Golden Gate’s property. The court sided with the District holding that commencement of the eminent domain proceedings prior to completion of the EIR did not violate CEQA.

Continue Reading EIR Not Needed Before Starting Eminent Domain Proceeding

By Claudia Gutierrez

In MHC Limited Financing v. City of San Rafael, the Court of Appeals for the 9th Circuit considered, among other things, whether the City of San Rafael’s mobilehome rent control ordinance (the “Ordinance”) constituted either a regulatory taking under Penn Central Transportation Co. v. New York City or an impermissible “private” taking in violation of the Fifth Amendment, which prohibits the taking of private property for public use without just compensation. With respect to Penn Central, the court held that economic impact, investment-backed expectations, and the character of the Ordinance all led to the conclusion that the Ordinance did not constitute a taking. The court also rejected plaintiff’s “private taking” theory, novel in this context, in which MHC argued that the Ordinance did not qualify as a “public” use and therefore the taking was prohibited, regardless of compensation.

Continue Reading Déjà Vu All Over Again: Ninth Circuit Rejects Yet Another Challenge To Rent Control, Including “Private Takings” Argument

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.

Continue Reading Can California Cap and Trade if Brussels Stumbles?

By Daniel Bane 

Alliance for the Protection of the Auburn Community Environment, et al. v. County of Placer, SCV0028200 (3rd Dist., February 18, 2013)

In Alliance for the Protection of the Auburn Community Environment v. County of Placer, the California Court of Appeal for the Third District considered plaintiff and appellant Alliance for the Protection of the Auburn Community Environment’s ("Alliance") appeal from trial court’s granting of real party in interest Bohemia Properties, LLC’s ("Bohemia") demurrer, which was sustained without leave to amend, and the trial court’s concurrent denial of Alliance’s motion seeking relief on the grounds of mistake or excusable neglect under Code of Civil Procedure ("CCP") Section 473, subdivision (b) ("Section 473").

Continue Reading No Relief Under CCP Section 473 For Missed Filing Deadline In CEQA Challenge

Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir., Filed April 3, 2013)

By Robert Uram, Keith Garner, and Alex Merritt

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act.

Plaintiff environmental group brought a suit alleging that the defendant utility companies treated their utility poles with a wood preservative containing a biocide and other chemicals. Plaintiff further alleged that the utility poles discharge the wood preservative into the environment in violation of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA). The Ninth Circuit rejected both claims in an unanimous decision.

Continue Reading Utility Pole Not A Point Source Under The Clean Water Act

By Michael Hansen 

On February 22, California State Assembly Member Toni Atkins, D-San Diego, introduced a bill, AB 1229, to restore the ability of California cities and counties to require affordable housing as part of market-rate housing developments. The bill would override a notable 2009 court decision, Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal.App.4th 1396 (“Palmer”), that rendered many inclusionary housing requirements unenforceable under California law.

Continue Reading Bill Introduced to Restore Cities’ Ability to Require Affordable Housing

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __ (2013)

By James Rusk

The flow of polluted water from a concrete-lined portion of a river into a downstream portion of the same river does not involve a “discharge” for purposes of the Clean Water Act (“CWA”) and thus involves no CWA violation, the Supreme Court held in an opinion filed January 8. The Court’s opinion reverses a Ninth Circuit judgment that held the Los Angeles County Flood Control District (“District”) liable for CWA violations based on sampling data that showed polluted water leaving portions of the Los Angeles and San Gabriel Rivers controlled by the District and entering downstream portions of the same rivers. The opinion addresses only a very narrow issue that is controlled by the Court’s prior decision in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004), and does not reach larger questions about the scope of liability for operators of municipal separate storm sewer systems (“MS4”).

Continue Reading Conveyance of Polluted Water Within River Involves No ‘Discharge’ Under Clean Water Act

By Whitney HodgesRandy 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.

Continue Reading What Will It Cost for California to Save the World? California Conducts its First Greenhouse Gas Cap-and-Trade Auction