Category Archives: Environmental

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California Housing Legislation 2020

Governor Gavin Newsom just signed a number of housing bills into law that were passed by the Legislature this session ending on August 31, 2020.  Due to the severe scheduling constraints placed on lawmakers by the COVID-19 pandemic among other challenges, the Legislature was only able to pass a small number of bills related to … Continue Reading

Army Corps of Engineers Proposes Revising Broad Range of Clean Water Act Nationwide Permits

On September 15, 2020, the Army Corps of Engineers published proposed revisions to a wide range of Nationwide Permits (NWP) issued under the Clean Water Act.  The revisions respond to Executive Order 13783, directing heads of federal agencies to review existing regulations that potentially burden development or use of domestically produced energy resources.  Accordingly, the … Continue Reading

New Proposed Regulation Provides More Guidance and Some Relief on Prop 65 Warning Requirements for Heat Processed Foods and Acrylamide

The Office of Environmental Health Hazard Assessment (“OEHHA”) recently proposed a regulation that would provide more certainty to businesses regarding the Proposition 65 (“Prop 65”) warning requirements for cooked foods.  The proposed regulation is intended to incentivize businesses to lower the concentration levels in foods, encourage consistency and predictability, and ensure that warnings will be … Continue Reading

California Supreme Courts Holds Categorical Classification of Well Permits As Exclusively “Ministerial” Does Not Hold Water

After a nearly two-year wait, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) __ Cal.5th ____ (POWER), the California Supreme Court unanimously rejected the County of Stanislaus’s (County) bright-line categorization that all groundwater well construction permits are ministerial, and therefore not subject to the California Environmental Quality Act (CEQA).  In an … Continue Reading

Final Revisions to NEPA Regulations: Six Highlights from Major Rule Overhaul

The White House Council on Environmental Quality (CEQ) recently published a final rule (Rule) revising the implementing regulations for the National Environmental Quality Act (42 U.S.C. § 4321 et seq ) (NEPA).  Touted as the first comprehensive revision of CEQ’s NEPA regulations since their creation in 1978, the stated goal of the Rule includes facilitating more … Continue Reading

Clean Water Act Permit Required for “Functional Equivalent” of Direct Discharge, Supreme Court Says

The Clean Water Act sometimes requires a permit for the indirect discharge of pollutants from a point source to navigable waters, but only when the discharge is the “functional equivalent” of a direct discharge, the Supreme Court held on April 23.  The Court’s 6-3 opinion in County of Maui v. Hawaii Wildlife Fund (No. 18-260) … Continue Reading

Prop 65 Warnings and Acrylamide in Food – Can I Still Have My Coffee and Drink it Too?

Many of us think of coffee as a morning essential, however, there has been a long running debate between California regulators, courts, business, and consumer advocates regarding whether coffee must have a Proposition 65 (“Prop 65”) warning for cancer.  The debate stems from the fact that roasted coffee beans, and coffee brewed from those beans, … Continue Reading

CALIFORNIA MANDATORY SOLAR UPDATE: First Community Solar Program Approved by California Energy Commission

On February 20, 2020, the California Energy Commission approved its first community solar system under the 2019 Energy Code, which allows developers of new homes within Sacramento Municipal Utility District (“SMUD”) to meet mandatory solar energy system requirements through solar agreements with SMUD instead of installation of solar panels on new homes.… Continue Reading

Navigable Waters Protection Rule: How are the “Waters of the United States” Being Defined?

On January 23, 2020, the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers issued the Navigable Waters Protection Rule (the “2020 Rule”), which includes a revised definition of the “waters of the United States” subject to federal regulation under the Clean Water Act.[1] The revisions in the 2020 Rule come … Continue Reading

Proposition 65: California Clarifies Responsibilities To Warn Amongst Manufacturers, Distributors and Retailers

The California Office of Environmental Health Hazard Assessment (OEHHA) recently adopted amendments to California Code of Regulations, section 25600.2 – the section titled “Responsibility to Provide Consumer Product Exposure Warnings.”  These amendments provide more specific guidance for manufacturers, retailers and other businesses in the chain of commerce on how to satisfy their responsibilities to provide … Continue Reading

EU is Taking Action: The Fight for Clean Air

Public awareness regarding air pollution in the European Union is at an all-time high and citizens expect authorities to act. In this vein, the European Commission[1] has recently taken a number of direct and indirect actions, including engagement of the Court of Justice of the EU, enforcement measures against car manufacturers and a Europe-specific “Green … Continue Reading

Fall Season Results in California Coastal Commission Victories

This Fall, the California Coastal Commission (“Commission”) was handed down two significant victories, further cementing its authority and jurisdiction within California coastal zones. These cases demonstrate that, in certain instances, compliance with the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (“CEQA”) and local regulations may not be enough to secure development rights … Continue Reading

EPA and Army Repeal Clean Water Rule and Move Forward with Plan to Redefine Waters Subject to Federal Regulation under Clean Water Act

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a rule on October 23, 2019, repealing the Clean Water Rule promulgated by the Obama administration in 2015. The rule, which goes into effect on December 23, 2019, puts the pre-2015 regulations governing areas subject to federal jurisdiction under the … Continue Reading

Politics Trumps Economics? Trump’s Revocation of California’s Waiver Under the Clean Air Act

Today President Trump announced on Twitter that the U.S. was revoking California’s waiver under the Clean Air Act (CAA) which allowed it to impose stricter tailpipe emission standards than the federal ones. California’s Governor Newsom and Attorney General Becerra immediately announced that the state would file suit to challenge the revocation. While the revocation has … Continue Reading

Endangered Species Act Rulemakings Face Immediate Challenge

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26: Eliminate the automatic extension of … Continue Reading

Bifacial Solar Modules Now Exempt from Section 201 Tariff

On June 13, 2019, the Office of the United States Trade Representative ruled that bifacial solar modules are exempt from the Section 201 tariffs on solar cell and module imports. This exemption applies to articles imported on or after June 13, 2019, and creates an opportunity for cost savings over traditional monofacial solar modules. Developers … Continue Reading

D.C. Circuit Says NEPA Requires FERC To Inquire Into Up and Downstream Effects of Pipeline Project

In a recent opinion, the D.C. Circuit suggested the Federal Energy Regulatory Commission (FERC) must attempt to obtain information necessary to evaluate the environmental effects of a proposed interstate pipeline project due to the project’s effect on natural gas production and consumption. In Birckhead v. FERC, USCA Case No. 18-1218 (D.C. Cir. 2019), the court … Continue Reading

FERC Holds the Line on One-Year Limit for State Review of Clean Water Act Certifications for Interstate Natural Gas Pipelines

On April 2, 2019, the Federal Energy Regulatory Commission (“FERC” or “Commission”) determined that the one-year statutory limit on state review of interstate natural gas pipeline company applications for water quality certification was a bright-line deadline that could not be extended by private agreement.[1] FERC found that the New York State Department of Environmental Conservation’s … Continue Reading

District Court Provides Guidance On Climate Change Analysis Under NEPA

A federal district court has ruled that the Bureau of Land Management (“BLM”) failed to adequately consider climate change when approving a set of oil and gas leases on public lands in Wyoming. The ruling should be of broader interest to developers and energy companies because it offers guidance on how to properly analyze a … Continue Reading

On Repeat: Courts Again Uphold Low Carbon Fuel Standard Programs

The Ninth Circuit Court of Appeals recently upheld – for the second time – California’s Low Carbon Fuel Standard (“LCFS”) against constitutional challenges brought by industry groups. The case, Rocky Mountain Farmers Union v. Corey (9th Cir. 2019) (No. 17-16881) (“Rocky Mountain II”), considered the groups’ claims that all 3 historical versions of the LCFS violate … Continue Reading

Ninth Circuit Determines That George Costanza Was Right!—In Limited Circumstances, Whales And Seals Are Fish (Not Mammals)

Makah Indian Tribe, et al. v. Quileute Indian Tribe et al., 813 F.3d 1157 (9th Cir. 2017). Defying the universal notion that whales and seals are, in fact, mammals, the Ninth Circuit recently affirmed in part, and reversed in part, the Western District Court of Washington’s judgment determining that such species qualify as fish in … Continue Reading

Ninth Circuit Finds District Court Sharply Deviated from Existing Authority on CERCLA Cleanup Costs Between Military Contractor and U.S. Government When it Allocated 100 Percent of Liability to Military Contractor

TDY Holdings v. United States, et al., 872 F.3d 1004 (9th Cir. 2017). TDY brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial … Continue Reading

Ninth Circuit Holds National Park Service Has the Authority to Regulate Navigable Waters in Alaska’s National Parks and Prohibit the Use of Hovercraft (Again)

Sturgeon v. Frost, et al., 872 F.3d 927 (9th Cir. 2017). In September 2011, moose hunter John Sturgeon brought an action against the National Park Service (“Park Service”), alleging it inappropriately banned him from using a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve (“National Preserve”). Id. at 929. … Continue Reading

Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)

If your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65. Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to … Continue Reading
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