Recent Cases - Environmental

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By Heather Plocky and Olivier Theard

California’s effort to reduce the carbon footprint of producers and refiners of fuel has hit a snag. Shortly after the passage of the Global Warming Solutions Act (AB32), requiring reduction of greenhouse gases to 1990 levels by 2020, former California Governor Arnold Schwarzenegger signed an Executive Order setting a statewide goal of reducing "the carbon intensity of California’s transportation fuels by at least 10 percent by 2020." Pursuant to this Executive Order, the California Air Resource Board (ARB) adopted the Low Carbon Fuel Standard (LCFS) in June 2007 as an early action measure under AB32. In April 2010, the regulation was formally adopted. On December 29, 2011, District Judge Lawrence O’Neill in the Eastern District of California issued a preliminary injunction blocking ARB from implementing LCFS.…

Continue Reading Enforcement of California Low-Carbon Fuel Standard Blocked

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 (Justice Sotomayor recused herself, presumably because she heard the matter while sitting on the Second Circuit), the Court held that Congress’s delegation of the power to regulate greenhouse gasses to the Environmental Protection Agency (“EPA”), "displaces federal common law" relating to the abatement of carbon dioxide ("CO2") emissions.…

Continue Reading Carbon Dioxide Emissions Not Subject to Federal Common Law Nuisance Claims

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

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 discharged polluted stormwater into the Los Angeles River and San Gabriel River in violation of the federal Clean Water Act. The District has argued that the evidence did not show it was the source of the pollutants, only that it conveyed polluted stormwater. The Ninth Circuit rejected this argument and decided summary judgment was appropriate because monitoring stations located in a section of the municipal separate storm sewer system ("MS4") owned and operated by the District detected pollutants in excess of the limits set forth in the District’s National Pollutant Discharge Elimination System permit ("Permit") and, after the polluted stormwater passes through these monitoring stations, it was discharged into the two rivers, causing or contributing to exceedances of water quality standards.…

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

By Whitney Hodges

On March 18, 2011, Judge Ernest Goldsmith of the San Francisco County Superior Court suspended implementation of AB 32, California’s landmark law to reduce greenhouse gas (“GHG”) emissions. In Association of Irritated Residents v. California Air Resource Board, [Statement of Decision] the Court found the California Air Resource Board (the “ARB”)’s adoption of AB 32’s Climate Change Scoping Plan (the “Scoping Plan”) to be in violation of the California Environmental Quality Act (“CEQA”). The ruling determined that the ARB abused its authority by not adequately analyzing potential alternatives to a carbon “cap-and-trade” program aimed at limiting GHG emissions.…

Continue Reading Final Decision Suspends California’s AB 32 GHG Regulations: What Now?

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 to comply with the California Environmental Quality Act (CEQA). The Court found the CARB to have neglected to conduct a sufficient environmental impact review prior to adopting the State’s AB 32 Scoping Plan (Plan).  Specifically, CARB failed to adequately analyze all potential alternatives and prematurely adopted the Plan prior to fully responding to public comment.…

Continue Reading California Court Issues Tentative Ruling Enjoining AB 32 Implementation