In Save the Hill Group v. City of Livermore et al., the First District Court of Appeal (Div. 5) reversed and remanded the superior court’s decision to uphold the reissued final environmental impact report (RFEIR) for a development project with 44 single-family homes located in a residentially-zoned grassland area, called Garavanta Hills, near the Garaventa Wetlands Preserve.  In doing so, the Court held that the analysis for the “no project” alternative was inadequate because it failed to disclose and evaluate the possibility of using existing mitigation funding to make the no-project alternative feasible.  While the superior court agreed that the analysis of the no-project alternative was insufficient, the superior court found that petitioner Save the Hill Group (Petitioner) had failed to exhaust its administrative remedies on this issue, upholding the RFEIR on this jurisdictional prerequisite.  While the Court of Appeal reversed this particular decision, it did rejected the Petitioner’s remaining claims.
Continue Reading Court of Appeal Holds No-Project Alternative Analysis May Mean More When Conservation is an Option and Reinforces Low Barrier to Entry Under the Exhaustion Doctrine

For many in the cannabis industry, April 1, 2022 is seen as a day of reckoning following the July 2021 passage of Assembly Bill 141 and Senate Bill 160 (collectively, the Cannabis Trailer Bill).  In an attempt to transition to an annual licensure program, April 1st marked the beginning of the end for provisional cannabis licensure.  It also ushered in significant changes to renewal process for previously granted provisional licenses.  These modifications now require applicants to comply with the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (CEQA), a complex statewide policy of environmental protection fraught with potential traps for those unversed in the law, before an operator is eligible to be awarded a cannabis state license.  This requirement alone carries the potential to create a much higher barrier to entrance into the cannabis market.
Continue Reading No April Fools: Starting April 1st, Cannabis Operators Face CEQA Compliance Requirements for State Licenses

In October 2021, Governor Gavin Newsom signed into law a sweeping package of six bills aimed at reducing plastic waste, improving recycling efforts, and clarifying labeling standards for recyclables and compostables.  These new laws will likely mean significant changes for many companies.  They come at a time when multiple states are passing similar environmentally focused bills, signaling a renewed effort to promote recycling and regulate green advertising.

Continue Reading California Passes Sweeping Package of “Green” Bills

Environmental, social, and governance factors (“ESG”) have pushed to the forefront of the SEC’s attention in recent years.  In September, building on prior guidance, the SEC’s Division of Corporate Finance released a sample comment letter that requests additional information from companies related to climate change.  The letter does not create new substantive law, but it illustrates the SEC’s increased interest in ESG and climate-related disclosures under the Biden Administration.

Continue Reading SEC Publishes Sample Letter to Companies on Environmental Disclosures

The U.S. District Court for the District of Arizona on August 30 vacated the 2020 Navigable Waters Protection Rule (NWPR) that redefined “waters of the United States” for purposes of Clean Water Act jurisdiction, effectively reinstating the definition in effect prior to 2015.  Under that prior definition, many ephemeral streams and isolated wetlands that were not subject to federal jurisdiction under the NWPR will again be subject to case-by-case determinations of their status.  The case, Pasqua Yaqui Tribe v. EPA, CV-20-00266-TUC-RM (D. Ariz.), is one of several challenging the NWPR, and the outcome leaves unanswered questions about the scope of the court’s ruling and the potential for inconsistent regulations across the nation.

Continue Reading Uncertainty Over ‘Waters of the U.S.’ Definition Continues, as Federal Court in Arizona Vacates 2020 Rule

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 housing and tenant protections, despite beginning the year with over 100 bills under consideration.  Most notably, some of the most ambitious pieces of legislation including five of the bills in the State Senate’s Housing Production Package all failed to pass before the midnight deadline on August 31, 2020.  We will continue to monitor the Legislature’s efforts to spur additional housing production in California as we head into the Fall recess and the new legislative session starting on December 7, 2020.  Below is a summary of the bills signed by the Governor on August 28, 2020.  These bills take effect on January 1, 2020, unless otherwise noted.
Continue Reading California Housing Legislation 2020

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 proposed revisions affect NWPs commonly utilized by utility-scale wind and solar energy projects throughout the country.  The Corps will accept comments on the proposed revisions until November 16, 2020.  Here are highlights from the proposed revisions.
Continue Reading Army Corps of Engineers Proposes Revising Broad Range of Clean Water Act Nationwide Permits

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 given for the foods causing the highest levels of exposure.
Continue Reading New Proposed Regulation Provides More Guidance and Some Relief on Prop 65 Warning Requirements for Heat Processed Foods and Acrylamide

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 interesting twist, the Supreme Court also rejected the petitioner’s alternative “all or nothing” position that, if the permits are not ministerial, they must be discretionary and conditioned on CEQA compliance.  Instead, the Supreme Court held the decision of whether each permit is ministerial or discretionary hinges on the specific language of the governing ordinance and regulatory controls.[1]
Continue Reading California Supreme Courts Holds Categorical Classification of Well Permits As Exclusively “Ministerial” Does Not Hold Water

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 efficient, effective, and timely NEPA review by federal agencies.
Continue Reading Final Revisions to NEPA Regulations: Six Highlights from Major Rule Overhaul