The Federal Court of Appeals for the Ninth Circuit recently affirmed a district court order requiring that the National Marine Fisheries Service, the Corps of Engineers, and the Bureau of Reclamation conduct spill operations and monitoring at dams and related facilities in the Federal Columbia River Power System in order to protect migrating salmon and

In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017). First, the court approved the use of 2007 operating data for the

In November 2014, we reported on the controversial court of appeal decision that overturned the environmental impact report for the San Diego Association of Governments’ 2050 Regional Transportation Plan and Sustainable Communities Strategy.  The court faulted the EIR for failing to assess the plan’s consistency with the 2050 greenhouse gas emissions reduction goal contained in

In 2013, the fifth district court of appeal ruled that the California Air Resources Board violated CEQA when it adopted its 2009 Low Carbon Fuel Standard regulations, and the court directed issuance of a writ of mandate requiring that CARB take corrective action.  The court allowed the LCFS regulations to remain in effect while CARB completed a new CEQA analysis, concluding that leaving the regulations in place would provide more protection for the environment than suspending their operation.   (See our post analyzing the court’s 2013 decision here.)  CARB then completed a further CEQA analysis and adopted revised regulations.  Now, the same court has held that the CARB’s new analysis failed to comply with CEQA or its prior decision.   POET, LLC v. State Air Resources Board, 5th Dist. No. F073340 (May 30, 2017).  This time, the court provided specific suggestions for further CEQA review, but it again allowed the revised regulations to remain in place while CARB takes further action to comply.

The Challenge to CARB’s Revised CEQA Review

The challenger, the largest U.S. ethanol producer, again contested CARB’s analysis of the environmental effects of the biodiesel portion of CARB’s LCFS regulations. Biodiesel combustion emits reduced greenhouse gases compared to other fuels, but increases NOx emissions, which have local and regional air quality impacts.  The challenge attacked the Board’s decisions to: 1) limit its CEQA analysis to the impact of its new biodiesel regulations rather than including the effects of its original 2009 regulations; and 2) use 2014 statewide biodiesel emissions as the baseline for CEQA analysis.

The Board Did Not Comply with the Writ of Mandate or CEQA

First, the court of appeal held that CARB had not complied with the writ of mandate because it still had not analyzed the environmental impacts of its original biodiesel regulations, adopted in 2009.  Instead, the CARB analyzed only the impacts of the new regulations it adopted in 2015, and compared biodiesel use under those regulations to statewide biodiesel use in 2014. The court held that the original 2009 regulations and its impacts were part of the “project” CARB was required to analyze.
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In a 2-1 decision, the Court of Appeal upheld the California Air Resources Board’s cap-and-trade program for greenhouse gas allowances. California Chamber of Commerce v. State Air Resources Board,  No. C075954 (3rd Dist., April 6, 2017). In upholding the validity of the auction used by the California Air Resources Board to distribute a portion of the greenhouse gas allowances auction, the opinion created an important new test for assessing whether the auction should be considered a tax. The majority found that the allowance auction was not compulsory and provided a valuable commodity to the purchaser, and thus was not a tax requiring supermajority approval under Proposition 13.

Background on CARB’s GHG Cap-and-Trade Program

In 2006, California enacted AB 32 with the goal of reducing greenhouse gas (GHG) emissions to 1990 levels by the year 2020. The California Air Resources Board (CARB) is the designated state agency charged with regulating sources of GHG emissions under AB 32. AB 32 directed CARB to adopt rules and regulations to achieve the maximum technologically feasible and cost-effective reductions in GHG emissions.

Smoking power plantPursuant to AB 32’s directives, CARB promulgated regulations that created a cap-and-trade-program. The program sets an aggregate emissions “cap” on covered entities and enforces the cap by issuing a limited number of allowances, the total value of which is equal to the cap. Covered entities must demonstrate compliance with the program by surrendering allowances that correspond to that entity’s emissions requirements.

Emissions allowances can be obtained in three ways: 1) Some allowances are distributed by CARB for free; 2) allowances are distributed by CARB through an auction; and 3) allowances can be obtained by trading on the secondary market.

CARB’s allowance auction takes place through a single round of sealed bidding, and winners pay the market clearing price. In 2012, the state legislature passed four bills specifying how the auction proceeds would be used to support the regulatory purposes of AB 32.

Several corporations and industry groups challenged the auction mechanism as exceeding CARB’s statutory authority under AB 32 and as an unconstitutional tax that violated the supermajority requirements of Proposition 13.
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Governor Jerry Brown has signed two related bills that will tighten greenhouse gas limits and increase legislative oversight over the California Air Resources Board, SB 32 and AB 197. Some of the key components of the two bills include:

  • New state-wide target for reductions in GHG emissions. SB 32 requires CARB to reduce statewide

The First District Court of Appeal has upheld the San Francisco Bay Area’s Sustainable Communities Strategy.  The court rejected  the claim that such strategies  must account for the effects of statewide greenhouse gas reduction mandates. Bay Area Citizens v. Association of Bay Area Governments, 248 Cal. App. 4th 966 (2016).

The Sustainable Communities and

Newhall Ranch, a proposed mega-development in Los Angeles County, can’t seem to catch a break: besieged by setbacks since Newhall Land first filed an application to develop the land in 1994, the project has been the subject of over twenty-one public hearings and several law suits over its more than twenty year history. In Center