Category Archives: Environmental

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Recent Water and Pesticide Regulatory Guidance

By Heather Plocky The State Water Board has recently released two documents: a "Citizen’s Guide to Working with the California Water Boards” and "Annual Budget Pre-Approval Frequently Asked Questions.” The Department of Pesticide Regulation ("DPR”) has recently released "A Guide to Pesticide Regulation in California.” These documents clarify and explain certain water and pesticide regulations, … Continue Reading

Proposition 65 Private Party Settlement Guidance Provides Clarity and a Limitation on Releases in the Public Interest

By Heather Plocky In January, the Attorney General released a guidance document that details what the state will and will not approve in future private Proposition 65 lawsuit settlements[1]. This guidance provides clarity to both plaintiffs and businesses and is intended to limit the scope of any “public interest release” that plaintiffs can offer.… Continue Reading

Governor Brown Signs Two Bills Intended to Protect Children From Toxic Exposures

By Olivier Theard In an effort to protect children (and, to a lesser extent, adults) from toxic exposure, California has banned the use of the controversial chemical Bisphenol A (BPA) in baby bottles and sippy cups, and has eliminated certain loopholes in the existing ban on lead and cadmium in jewelry. These laws follow earlier … Continue Reading

Carbon Dioxide Emissions Not Subject to Federal Common Law Nuisance Claims

American Electric Power Co., Inc. v. Connecticut (June 20, 2011, No. 10-174) __ U.S. __ By Robyn Christo & Micah Bobo In the battle over climate change, the Supreme Court once again set an important precedent in American Electric Power Co., Inc. v. Connecticut (“American Electric Power”). In an 8-0 decision written by Justice Ginsburg … Continue Reading

U.S. Supreme Court to Review Two Cases With Potentially Significant Consequences for Wetlands and Waterways

By Keith Garner The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.… Continue Reading

Reliance on Statutory Requirements to Mitigate Environmental Impacts Proper Under CEQA

Oakland Heritage Alliance v. City of Oakland (May 19, 2011, A126558) __ Cal.App.4th __ By Maria Pracher & Robyn Christo In this case, the Court of Appeal for the First Appellate District rejected all of petitioner’s arguments regarding the adequacy of the seismic impact analysis and mitigation measures in a revised Environmental Impact Report (“EIR”) prepared … Continue Reading

Superior Court’s Injunction Preventing California’s Cap and Trade Program Has Been Stayed…Right?

By Randolph C. Visser and Whitney Hodges Until recently, Association of Irritated Residents v. California Air Resources Board proceeded along the litigation path as smoothly as any environmental challenge might. However, things took an unexpected twist last week that has left unanswered questions and many spectators baffled.… Continue Reading

Municipalities Are Responsible For Discharges Of Stormwater Regardless Of The Ultimate Source Of Pollution

Natural Resources Defense Council v. Los Angeles County, United States Court of Appeals for the Ninth Circuit, Case No. 10-56017 (March 10, 2011) By Elizabeth Anderson The Ninth Circuit Court of Appeals held that environmental groups were entitled to summary judgment after presenting evidence that the Los Angeles County Flood Control District ("District") had illegally … Continue Reading

California Court Issues Tentative Ruling Enjoining AB 32 Implementation

By Whitney Hodges On January 21, a San Francisco Superior Court issued a proposed decision that could significantly delay the implementation of the Global Warming Solutions Act of 2006 (“AB 32”). In Association of Irritated Residents, et al. v. California Air Resources Board, Case No. CPF-09-509562, the Court held that the California Air Resources Board (CARB) failed … Continue Reading

Under CERCLA, “Owner” Means Owner When Cleanup Costs Are Incurred, Not When Reimbursement Is Sought

California Dep’t of Toxic Substances Control v. Hearthside Residential Corp., No. 09-55389 (9th Cir. July 22, 2010) By Betsy McDaniel and Adam Bailey On July 22, the Ninth Circuit Court of Appeals held that under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," commonly referred to as the "Superfund" law), the owner of a … Continue Reading

2nd Circuit Allows Public Nuisance Suit Against Greenhouse Gas Emitters

Connecticut v. American Electric Power Company Inc., ____F.3d ____, No. 05-5104 (2nd Cir. 2009) By James Rusk States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide ("CO2") emissions that contribute to global warming, the Second Circuit Court of Appeals held this month. Although the 139-page opinion appears … Continue Reading

U.S. Supreme Court Holds Superfund’s Traditional Joint and Several Liability and Arranger Liability Have Their Limits: Bar May Be Lowered For Demonstrating Apportionment Liability

By Randolph C. Visser, Jeffrey W. Forrest, & Michael Hansen On May 4, the U.S. Supreme Court handed down its 8 to 1 decision in the much anticipated case of Burlington Northern & Santa Fe Railway Co., et al v. United States et al. (556 U.S.___ (2009)), which challenged the traditional notion of joint and several … Continue Reading

California Budget Plan Will Delay Off-Road Diesel Emissions Regulations

On February 19, 2009, California legislators ended a three-month-long stalemate and passed a budget designed to meet the $41 billion budget shortfall through 2010. A major provision in the bill package adopted as part of the proposed budget would delay the retrofitting of heavy diesel equipment, which would save the construction industry millions of dollars … Continue Reading

What You Need To Know About SF’s Green Building Ordinance

By Misti Schmidt and Aaron Foxworthy On August 4, 2008, San Francisco Mayor Gavin Newsom signed a new Green Building Ordinance (“Ordinance”) into law, amending the existing Building Code by inserting Chapter 13C. The goal of the Ordinance is to reduce the city’s carbon emissions to 20% below 1990 levels by 2012. The Ordinance aims … Continue Reading

Loss of Power? AQMD rules Designed to Spur Development of Newer, Cleaner Electrical Power Plants Recently Vacated in LA Superior Court

By Olivier Theard Summary Two new rules promulgated by the South Coast Air Quality Management District (AQMD) that were designed to encourage development of newer, cleaner electric power plants by replacing older, more-polluting ones were recently vacated in a case pending in the Superior Court in Los Angeles.  The court decided that, in implementing the … Continue Reading

Ninth Circuit Says EPA Must Regulate Marine Discharges, Including Ballast Water

Northwest Environmental Advocates, et al. v. United States Environmental Protection Agency (July 23, 2008, 9th Cir. Case Nos. 03-5760, 06-17187, and 06-17188) __ F.3d ___ By Misty Calder Plaintiffs Northwest Environmental Advocates, San Francisco Baykeepers, and The Ocean Conservancy (“plaintiffs”) challenged a regulation originally promulgated by the Environmental Protection Agency (“EPA”) in 1973 exempting certain … Continue Reading

EPA Releases Advance Notice Of Proposed Rulemaking Regarding Regulation Of Greenhouse Gas Emissions Under Clean Air Act

By Olivier Theard On July 11, 2008 the U.S. Environmental Protection Agency (EPA) released an Advance Notice of Proposed Rulemaking (ANPR) in response to the U.S. Supreme Court’s April 2007 decision in Massachusetts v. EPA, 549 U.S. 497 (2007).  In Massachusetts, the Court ruled that greenhouse gases (carbon dioxide, methane, nitrous oxide and hydrofluorocarbons) satisfy the … Continue Reading

Update On Proposed Draft Regulation To Reduce Emissions Of Diesel Particulate Matter, And Other Pollutants From In Use On Road Heavy Duty Diesel-Fueled Engines

On July 10 the Air Resources Board (ARB) released information about its revised draft regulation that will require retrofits and engine replacements on diesel-powered trucks and buses traversing California roadways beginning in 2012.  In contrast to the January, 2008 proposal to have fleets replace trucks twice in a nine-year span, the revised proposal will heavily … Continue Reading

Reducing Greenhouse Gas Emissions: California Air Resources Board Releases Draft AB 32 Scoping Plan

By Randolph C. Visser The Global Warming Solutions Act of 2006 (AB 32) requires the California Air Resources Board (ARB) to prepare a Scoping Plan to achieve reductions in greenhouse gas (GHG) emissions in California.  The AB 32  Draft Scoping Plan contains the main strategies California will use to reduce the GHGs that cause climate change.  … Continue Reading

No Idling: California Air Resources Board Adopts New Off-Road Diesel Rule

By Olivier F. Theard In an effort to reduce airborne diesel pollution, the California Air Resources Board has adopted a “no idling” rule for in-use off-road diesel-fueled vehicles, limiting idling for such vehicles to no more than 5 minutes.  The new rule will go into effect June 16, 2008.  This rule adds to a host … Continue Reading

City of Los Angeles Adopts Green Building Ordinance on Earth Day

By James E. Pugh On April 22, 2008, the City of Los Angeles passed Ordinance No. 179820 and thereby established a city-wide “Green Building Program.”  The program is modeled after the U.S. Green Building Council’s Leadership in Energy and Environmental Design (“LEED”) building standards.  The program addresses five key areas including: (1) site location; (2) … Continue Reading

Corps And EPA Issue Important New Mitigation Rule

On April 10, 2008, the Army Corps of Engineers ("Corps") and the Environmental Protection Agency ("EPA") issued a final rule governing mitigation requirements for unavoidable impacts to wetlands and other waters of the United States under the section 404 program of the Clean Water Act.  70 Fed. Reg. 19594. This rule is a major change … Continue Reading

Clash of the Titans

California Battles The United States Environmental Protection Agency Over the Right to Curb Greenhouse Gas Emissions From Vehicles By Olivier Theard December and January were pivotal months in the continuing struggle over implementation of California’s stringent automobile greenhouse gas regulations.  California has tried for some time to impose its limits, adopted as regulations under AB … Continue Reading

California Sues U.S. Environmental Protection Agency, Seeks Permission To Enforce Own Standards Regulating Greenhouse Gas Emissions

By Olivier F. Theard and Maria J. Gangemi I. Introduction On November 5, California filed suit for an injunction to compel EPA to rule on California’s requested waiver from the Clean Air Act’s prohibitions of states enforcing their own greenhouse gas emissions standards for automobiles.  Several other states have intervened, seeking to adopt California’s standards … Continue Reading

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