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

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) addresses a circuit split regarding whether indirect discharges to navigable water via groundwater are subject to the Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program, but it has implications for other types of indirect discharges as well.  Although the Court identified some factors that may help determine when a discharge is the functional equivalent of a direct discharge—especially the time and distance between the discharge of a pollutant from a point source and the pollutant’s arrival in navigable waters—its opinion is likely to create substantial uncertainty for the regulated community as the Environmental Protection Agency (“EPA”), litigants, and the courts attempt to apply the Court’s multi-factor test to a variety of factual scenarios.
Continue Reading Clean Water Act Permit Required for “Functional Equivalent” of Direct Discharge, Supreme Court Says

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, contain acrylamide – a chemical of concern under Prop 65 because of potential cancer risks.  This article discusses the opinions of various research groups regarding the noncarcinogenic nature of acrylamide, as well as a recent lawsuit initiated by the California Chamber of Commerce against the California Attorney General to end the need to warn for acrylamide.
Continue Reading Prop 65 Warnings and Acrylamide in Food – Can I Still Have My Coffee and Drink it Too?

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

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 after a line of U.S. Supreme Court (“Supreme Court”) cases ending with Rapanos v. United States,[2] as well as an Obama-era administrative rule addressing the waterbodies under federal jurisdiction (the “2015 Rule”).[3] Rapanos was the last time the Supreme Court interpreted the term “waters of the United States,” with the intent of curtailing the substantial litigation concerning the meaning of the phrase and defining what “waters of the United States” should be included under federal jurisdiction. The 2015 Rule intended to clarify the definition further and codify the Supreme Court decisions. When effective, the newly issued Navigable Waters Protection Rule will limit the 2015 Rule, attempting again to define what are and what are not “waters of the United States.”
Continue Reading Navigable Waters Protection Rule: How are the “Waters of the United States” Being Defined?

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 consumer product exposure warnings for chemicals listed under Proposition 65. The amendments become effective on April 1, 2020.
Continue Reading Proposition 65: California Clarifies Responsibilities To Warn Amongst Manufacturers, Distributors and Retailers

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 Deal,” to stem the tide of rising air pollution and become the world’s first climate-neutral continent by 2050.
Continue Reading EU is Taking Action: The Fight for Clean Air