On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017. Continue Reading
Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum. The California Supreme Court recently upheld the San Diego Association of Government’s (“SANDAG”) determination that the year 2050 statewide GHG reduction goals set forth in Executive Order S-3-05 (“Executive Order”) issued in 2005 did not create a CEQA threshold of significance an agency must follow. However, the court did so for reasons different than SANDAG stated in the response to comments on the Environmental Impact Report (“EIR”) on proposed amendments to its Regional Transportation Plan (“RTP”). In Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603, the court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance because the Executive Order does not specify any plan or implementation measure to achieve its goal.” The EIR’s long-term GHG analysis adequately informed the public and agency, in part, because SANDAG summarized the Executive Order in the EIR’s regulatory framework section and disclosed the increase in GHG emissions in 2050 compared to the 2010 baseline. An analysis of “Lessons Learned and Reaffirmed” by the case appears at the end of this post.
The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their objections to final judgment before accepting the benefits of the permit. Though the case involved a Coastal Commission permit, it has broader implications discussed below.
The Environmental Protection Agency and Army Corps of Engineers on Tuesday announced a proposed rulemaking that would rescind the “Clean Water Rule” — which the agencies finalized in 2015 to revise the definition of “waters of the United States” subject to federal jurisdiction under the Clean Water Act — and recodify the prior regulatory definition of such waters. The action essentially would maintain the status quo, since the Sixth Circuit had already enjoined implementation of the Clean Water Rule nationwide pending the outcome of a legal challenge. But the agencies also said they intend to conduct a separate rulemaking to promulgate a new definition of waters of the United States that will consider the principles outlined in Justice Scalia’s plurality opinion for the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006). Both the repeal and the new definition would be consistent with direction given in an executive order signed by President Trump on February 28, 2017. Continue Reading
On June 13, 2017, the City of Los Angeles released its new Hollywood Community Plan (“Plan”) draft. The current plan dates back to 1988. In 2012, the City adopted an update to the community plan that was subsequently litigated and then rescinded by a Superior Court ruling. Thus, for the last several years, the City has used the 1988 community plan to guide land use decisions in Hollywood while adjusting to modern development trends in the area. Continue Reading
The City of Los Angeles continues to move toward the adoption of an ordinance that establishes an Affordable Housing Linkage Fee (Ordinance). As currently proposed, the key provisions of the Ordinance are as follows:
- It applies to any new building permit or entitlement application submitted on or after 180 days after the Ordinance’s formal adoption date. Any such application submitted before that will not be subject to the Ordinance.
- If the project does not qualify under any of the available exemptions, the Ordinance mandates a “linkage fee” of $5.00 per square foot for non-residential uses, $12.00 per square foot for residential uses with 6 or more units, and $1.00 per square foot for residential uses with 5 or less units. Note that the applicable deductions/credits may reduce such fees.
- It provides exemptions and deductions/credits for certain projects. In particular, no linkage fee would be required with respect to affordable units that meet specified requirements. Also, the first 25,000 square feet of nonresidential floor area in a mixed-use building would be excluded from the fee obligation.
- The linkage fee would be annually adjusted for inflation.
Citizens for Odor Nuisance Abatement v. City of San Diego, 8 Cal. App. 5th 350 (Cal. Ct. App. 2017). The Fourth Appellate District of the California Court of Appeal concluded that the City of San Diego could not be held liable for public nuisance associated with the stench created by sea lions because the City did not create the nuisance. Continue Reading
Asarco LLC v. Noranda Mining, Inc., 844 F.3d 1201 (10th Cir. 2017). In a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution action, the Tenth Circuit ruled that a mining company, whose liability for a contaminated site had been resolved in a settlement agreement approved by the bankruptcy court, could still seek contribution against other potentially responsible parties (PRPs), claiming that it overpaid its fair share of cleanup costs for the site. Id. at 1208. The Tenth Circuit also determined that contribution claims are permitted even against a party to a prior consent decree so long as the claims were not specifically resolved by the consent decree. Id. at 1211–12. Continue Reading
On April 6, the California Court of Appeal for the Third District issued its long-awaited decision in the consolidated lawsuits challenging the greenhouse gas (“GHG”) emission allowance auctions, which are a key component of the California Air Resources Board’s (“CARB”) Cap-and-Trade Program. The court held that CARB has the authority to establish the auctions and that they do not constitute an illegal tax. The second holding is key and breaks new legal ground; it also was made over a strong dissent. As the court put it, “the hallmarks of a tax are: 1) that it is compulsory; and 2) that the payor receives nothing of particular value for payment of the tax.” (Op. at 5.) The auction system is not a tax because 1) “the purchase of allowances is a voluntary decision driven by business judgments as to whether it is more beneficial to the company to make the purchase than to reduce emissions,” and 2) “the allowances are valuable, tradable commodities, conferring on the holder the privilege to pollute.” (Id.) This is a major victory for the Program and the State’s efforts to address climate change by reducing GHG emissions. However, there is a question whether the decision will stand. There was a strong dissent, and the decision is sure to be appealed to the California Supreme Court. Meanwhile, the Legislature is currently at work on crafting legislation aimed at determining how the existing ambitious emission reduction mandates will be met. The court’s decision will factor into those critical legislative deliberations, which will resume later this month after the spring recess. Continue Reading
NINTH CIRCUIT FINDS “THREATENED” DESIGNATION FOR BEARDED SEALS PROPER BASED ON NEW LONG-TERM PROJECTIONS
Alaska Oil and Gas Ass’n et al. v. Pritzker et al., 840 F.3d 671, 2016 U.S. App. LEXIS 19084 (9th Cir. 2016). Plaintiffs Alaska Oil and Gas Association, the state of Alaska, and North Slope Borough (collectively, Plaintiffs) challenged the National Marine Fisheries Service’s (the Service) determination that a subspecies of Pacific bearded seal, known as the “Beringia distinct population segment” (Beringia DPS), is threatened and entitled to protection under the Endangered Species Act (the Act). The state of Alaska also claimed the Service failed to adequately respond to its public comments, as required by the Act’s state cooperation provisions. The Ninth Circuit rejected Plaintiffs’ claims, finding that the Service’s decision to list the Beringia DPS as threatened was not arbitrary, capricious, or otherwise in contravention of the applicable law, and that the Service complied with its obligations to respond to the state of Alaska’s public comments.
DISTRICT COURT FINDS CLEAN WATER ACT LAWSUIT MAY PROCEED FOR DISCHARGES TO WATERWAYS FROM PASSING RAIL CARS
Sierra Club et al. v. BNSF Railway Co., 2016 U.S. Dist. LEXIS 147786 (W.D. Wash. Oct. 25, 2016). Environmental advocacy organizations (collectively, Plaintiffs) brought a Clean Water Act citizen suit against BNSF Railway Co. (BNSF) seeking relief for BNSF’s alleged unpermitted discharge of coal pollutants from its railcars into protected waterways. Plaintiffs alleged that “each time a BNSF train carrying coal travels through the state of Washington it discharges coal pollutants ‘through holes in the bottoms and sides of the rail cars and by spillage or ejection from the open tops of the rail cars and trains.’” Id. at *3–4. Both sides sought summary judgment, which the court denied. Id. at *2. The court rejected BNSF’s argument that Plaintiffs lacked standing, and determined that there were disputed issues of fact as to whether BNSF had committed Clean Water Act violations.
CALIFORNIA COURT OF APPEAL HOLDS ORDINANCE REGULATING MARIJUANA DISPENSARIES NOT SUBJECT TO ENVIRONMENTAL QUALITY ACT REVIEW
Union of Medical Marijuana Patients, Inc. v. City of San Diego, 4 Cal. App. 4th 103 (2016). The Union of Medical Marijuana Patients, Inc. (UMMP) brought a petition for writ of mandate against the City of San Diego (City), claiming the City failed to comply with the California Environmental Quality Act (CEQA) when it enacted an Ordinance (No. O20356) regulating the establishment and location of medical marijuana cooperatives within the City. UMMP argued that the Ordinance was a project under CEQA as a matter of law, and that the City failed to consider the reasonably foreseeable environmental impacts of the Ordinance prior to its adoption. The court of appeal rejected UMMP’s arguments, finding that the Ordinance was not a project under CEQA and that the alleged environmental impacts were not reasonably foreseeable.