Recent Cases – Environmental

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In late June, California’s Fourth District Court of Appeal upheld a Superior Court decision in Save Our Access v. City of San Diego, providing clarity for determining when a “later activity” is beyond the scope of an existing Program Environmental Impact Report (PEIR) under the California Environmental Quality Act (CEQA). Specifically, the Court held that a proposed ballot measure initiated by the City of San Diego to exclude the Midway-Pacific Highway Community Plan area from a voter-enacted height limit did not qualify as a “later activity” within the scope of the existing PEIR for the Community Plan Update because the PEIR relied on the height limit in its analysis of the potential environmental impacts. The Court held that the proper remedy is for the City to conduct further analysis of the potential impact of taller buildings in the Community Plan area in order to comply with CEQA before proceeding with the ballot measure.…

Continue Reading California Court Holds Proposed Ballot Measure Excluding Community Plan Area from Height Limit Is Not a “Later Activity” For Purposes of a Within-the-Scope Analysis

In a long-anticipated decision on the reach of the Clean Water Act (“CWA”), the Supreme Court significantly narrowed the scope of the wetlands and other waters subject to the CWA’s protections. The Court’s opinion in Sackett v. Environmental Protection Agency, released May 25, 2023, limits waters of the United States (“WOTUS”) to “relatively permanent” water bodies such as streams, oceans, rivers and lakes, and to wetlands with a “continuous surface connection” to those water bodies. The Court’s holding removes a wide swath of previously-protected wetlands from the CWA’s permitting requirements, likely eliminates jurisdiction for many ephemeral and intermittent streams, and spells all but certain doom for the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency’s recent rulemaking adopting a new definition of WOTUS for CWA purposes.…

Continue Reading Supreme Court Narrows Scope of Waters Protected by the Clean Water Act in Sackett v. EPA

Last week, in California Restaurant Association v. City of Berkeley, the Ninth Circuit ruled the federal Energy Policy and Conservation Act (EPCA) preempts local bans on the installation of natural gas infrastructure in new construction. Specifically, the Ninth Circuit held that EPCA’s preemption of local efforts to regulate the energy use of natural gas appliances is to be construed broadly, applying equally to regulations that affect the use of such appliances. In other words, because the City of Berkeley’s ban on natural gas pipes in new construction “render[ed] the gas appliances useless,” it had improperly infringed on the federal government’s exclusive power to regulate the use of gas appliances.…

Continue Reading Ninth Circuit Strikes Down Berkeley’s Ban on Natural Gas in New Construction, Dealing Blow to California’s Electrification Efforts