The U.S. Supreme Court ruled yesterday that a wetlands jurisdictional determination by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review. Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 578 U.S. ___ (2016). The Supreme Court’s decision resolves a circuit split on
Wetland Jurisdictional Determinations: Reviewable or Not?
Last week, the Supreme Court heard oral arguments in the case of United States Army Corps of Engineers v. Hawkes Co. (Supreme Court Case No. 15-290), which poses the question of whether a determination by the Army Corps that a property contains “waters of the United States” under the Clean Water Act is a final
Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility
The Ninth Circuit has rejected a claim, under the National Environmental Policy Act, that the Navy did not adequately consider the environmental consequences of a potential terrorist threat to the redevelopment of a military complex near downtown San Diego. The opinion upheld the Navy’s Environmental Assessment for the complex, which concluded that the project would not create the potential for a significant impact from a terrorist attack. San Diego Navy Broadway Complex Coalition v. United States Department of Defense, No. 12-57234 (9th Cir. March 30, 2016).
Background
The Navy first approved the redevelopment of the complex in 1991. The project included both military functions and private commercial uses to generate revenue. However, adverse real estate conditions in San Diego delayed the project until the mid-2000s. In 2006, the Navy prepared an EA for the project to supplement its prior NEPA analysis from the early 1990s, and it executed a lease with a private development partner. But a citizens group filed a NEPA lawsuit, and the district court ruled that the Navy had failed to provide adequate public notice for the EA.
In response, the Navy prepared a new EA and reapproved the project in 2009. The new EA included a discussion of a potential terrorist attack, due to the Ninth Circuit’s ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), which had held that a categorical dismissal of the potential impacts from a terrorist attack at an installation built to store spent nuclear fuel rods was unreasonable under NEPA. The Navy’s new EA concluded that a terrorist attack at the complex in San Diego was too speculative and remote to require NEPA analysis, since there was no known specific threat targeting the complex or its location. The EA also explained that anti-terrorism building specifications would be followed to reduce the risks posed by a potential terrorist attack. The EA thus concluded that the project would not place military or civilian personnel in jeopardy and would not result in a significant impact under NEPA.
Continue Reading Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility
CEQA YEAR IN REVIEW 2015
A Summary of Published Appellate Opinions Under the California Environmental Quality Act
In 2015, the California appellate courts continued to chart new ground as they grappled with some of CEQA’s most difficult and controversial questions. The Supreme Court of California led the way, issuing four opinions on hotly contested issues. For the first time, the
Controversial Clean Water Act Rule Published
The Environmental Protection Agency and Army Corps of Engineers published a final rule on May 27, 2015 to redefine the critically important term “Waters of the United States” under the federal Clean Water Act.
- The rule explains the agencies’ jurisdiction with respect to “tributaries” and “adjacent” waters and comes amidst considerable debate over where to
Fish and Wildlife Service Launches Regulatory Initiative on Migratory Bird Incidental Take
For the first time since the Migratory Bird Treaty Act was enacted in 1918, the federal government is proposing a permit system to authorize the incidental take of the more than 1,000 species of migratory birds.
- The Migratory Bird Treaty Act is strict liability criminal law, and it has been the subject of several recent
County’s Application for State Funding Does Not Trigger CEQA
In December 2011, the Orange County Board of Supervisors passed a resolution authorizing the County to submit an application for $100 million in state funding to expand the James A. Musick Jail Facility to add over 500 beds. The City of Irvine, which sits adjacent to the jail, filed a lawsuit alleging that the County
Does An EIR Have To Be Certified By A City’s Decision-Making Body?
Yes, according to a recent decision by a California court of appeal. The court held that CEQA does not allow a city council to delegate certification of an Environmental Impact Report to a planning commission, where the council is the decision-maker on the project. The court further ruled that, where such a delegation occurs, the
Ninth Circuit Rules that Plaintiffs Lack Standing to Compel State Agencies to Regulate Greenhouse Gas Emissions
Do environmental groups have standing to sue to force state agencies to regulate greenhouse gas emissions under the Clean Air Act? In a case decided on October 17, the Ninth Circuit said no. Washington Environmental Councilv. Bellon, No. 12-35323 (9th Cir. Oct. 17, 2013).
The plaintiffs argued that several governmental agencies in Washington State
California Supreme Court Makes It Easier To Challenge Local Affordable Housing Requirements
Under the Mitigation Fee Act, when a city imposes a fee, dedication, reservation or other exaction on a development project, the developer has the right to pay under protest, obtain the necessary project approvals and proceed with construction, while at the same time disputing the legality of the requirement. In Sterling Park v. City of