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

Stockton Citizens for Sensible Planning v. City of Stockton, Super. Ct. No. CV024375 (Nov. 13, 2012)

By James Rusk

A letter of approval finding a project consistent with a City’s Master Development Plan triggers the running of the 90-day statute of limitations under Government Code subsection 65009(c)(1)(E), the Third District Court of Appeal has held. Stockton Citizens for Sensible Planning v. City of Stockton involved the approval of a Wal-Mart store by the City of Stockton’s Community Development Department Director. Plaintiffs argued that the Director’s approval did not fall within the types of actions covered by section 65009 because it did not involve a “variance or permit” and was not made by a legislative body. The Court of Appeal disagreed, holding that section 65009’s short statute of limitations extends to land use approvals issued by zoning administrators and zoning boards exercising delegated authority.Continue Reading Zoning Director Approval Triggers Section 65009 Statute of Limitations

Friends of Aviara v. City of Carlsbad (November 1, 2012, Case No. D060167)

Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the City’s revision of its housing element. The appellate court interpreted Government Code section 65583 to create an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.Continue Reading City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies

Coalition for Clean Air v. City of Visalia (Oct. 4, 2012, No. F062983M)

By James Pugh

The partially published opinion in Coalition for Clean Air v. City of Visalia brightened the line regarding when a California Environmental Quality Act Notice of Exemption (NOE) is valid. In a nutshell, the Fifth District Court of Appeal concluded that an NOE filed before the final approval of a proposed project is invalid and does not trigger the 35-day statute of limitations set forth in CEQA. This is not new law. However, it confirms the principle set forth in the recent California Supreme Court’s Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 decision, which is that a petitioner has 35 days to challenge an NOE that is valid on its face.Continue Reading Further Confirmation Notice of Exemption Filed Before Project Approval is Void