Category: Environmental Regulation

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Municipal Regulation of Telecommunications Equipment In Public Right Of Way Based On Aesthetic Considerations Not Preempted

The California Court of Appeal has upheld municipal regulation of telecommunications equipment in the public right-of-way against the argument that such regulations are preempted by state law. T-Mobile West LLC v. City and County of San Francisco, No. A144252 (1st Dist., Sept. 15, 2016). At issue was a San Francisco ordinance passed in 2011 that … Continue Reading

Bay Area Air Quality Management District’s CEQA Guidelines on Pollution Impacts to Project Occupants and Users Are Invalid

The significance thresholds for exposure of receptors to harmful air pollution in the Bay Area Air Quality Management District’s CEQA Guidelines cannot provide the basis for requiring an EIR or mitigation measures, when used to measure the impact of existing air pollution on future occupants or users of a project. As a result, the District’s … Continue Reading

Agency’s CEQA Analysis Must Consider the Project’s Long-Term Impacts

The Third Appellate District’s opinion in North Coast Rivers Alliance v. A.G. Kawamura (January 4, 2016) has left some practitioners scratching their heads trying to decipher the court’s holdings regarding CEQA requirements for projects that might continue operating past their initial termination date, project objectives, alternatives and cumulative impacts. The California Department of Food and … Continue Reading

Complex New Requirements for CEQA Analysis of Greenhouse Gas Emissions Set by Supreme Court

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 … Continue Reading

Court of Appeals Issues Nationwide Stay of New Clean Water Act Rules

A federal court of appeals has blocked implementation of new Clean Water Act rules adopted by the EPA and Army Corps of Engineers. U.S. Environmental Protection Agency v. Ohio et. al., No. 15-3751 (6th Cir. Oct. 9, 2015).  In issuing the stay pending full consideration of the case, the court concluded there was a substantial … Continue Reading

Ninth Circuit Blocks EPA Approval of Controversial Pesticide

A federal appellate court has invalidated the U.S. EPA’s approval of a new pesticide, sulfoxaflor, concluding that the agency’s decision was based on “flawed and limited data” and was unsupported by substantial evidence. Pollinator Stewardship Council v. United States Environmental Protection Agency, No. 13-722346 (9th Cir., Sept. 10, 2015). Sulfoxaflor is part of a subclass of … Continue Reading

Federal Court Blocks Enforcement of New Clean Water Act Rule

The U.S. District Court for the District of North Dakota yesterday issued a preliminary injunction that bars the EPA and the Army Corps of Engineers from enforcing a new rule defining federal jurisdiction under the Clean Water Act in 13 states.  North Dakota v. U.S. Environmental Protection Agency, 3:15-cv-00059 (D.N.D. Aug. 27, 2015).  The injunction … Continue Reading

The Importance of Independence: The Ninth Circuit Provides Helpful Clarification on Connected Actions in the Energy Project Development Context

The Ninth Circuit Court of Appeals has held that a right-of-way for an access road over Bureau of Land Management (BLM) land to connect a wind project to a state highway did not trigger formal consultation under the Endangered Species Act because the proposed access road would not have significant impacts to the environment. Sierra … Continue Reading

Supreme Court Invalidates EPA Pollution Standards

The Supreme Court has struck down the Environmental Protection Agency’s rule limiting the amount of mercury and air toxics emitted by coal- and oil-fired power plants, finding that the agency acted unreasonably in failing to consider the cost of the regulation.  Michigan v. Environmental Protection Agency, No. 14–46 (June 29, 2015).  The Court ruled that … Continue Reading

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 … Continue Reading

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 … Continue Reading

California Department of Fish and Wildlife’s EIR for Fish-Stocking and Hatchery Program Upheld

A court of appeal has held that the first-ever environmental impact report for the state’s fish hatchery and stocking programs complies with CEQA, but also found that three of the EIR’s mitigation measures constituted “underground regulations” in violation of the Administrative Procedure Act. Center for Biological Diversity v. California Department of Fish and Wildlife, Third … Continue Reading

California Adopts Emergency Water Curtailment Regulations

It is now clear that the present drought requires that there be curtailment of the exercise of some existing water rights due to the lack of sufficient surface water.  On January 17, 2014—the same day as the Governor’s Proclamation of a drought state of emergency—the State Water Resources Control Board issued a “Notice of Surface Water … Continue Reading

State Water Resources Control Board May Weigh the Use of Water for Public Purposes Against Commercial Use by Riparian Users and Early Appropriators in Determining Reasonableness of Commercial Use

A court of appeal, for the first time, has upheld the  State Water Resources Control Board’s authority to restrict valid pre-1914 and riparian water rights on the ground that their exercise has become an unreasonable use of water under current circumstances. While it has long been accepted that California law requires that water be put to … Continue Reading

Santa Cruz Becomes First County to Ban Fracking

Santa Cruz County has become the first California county to permanently ban the controversial oil and gas drilling technique known as fracking. By a 5-0 vote, the Board of Supervisors this week amended its General Plan to prohibit all facilities for oil and gas exploration and development within the unincorporated County. The ban replaces a … Continue Reading

EPA and Army Corps of Engineers Release Proposed Rule on the Scope of Waters Covered Under the Clean Water Act

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule defining waters that fall under the jurisdiction of the Clean Water Act as “waters of the United States.”  The wide sweep of the coverage afforded by the proposed rule, if finalized, would represent a significant … Continue Reading

Existing Contamination On A Development Site Does Not Necessarily Trigger Preparation Of An EIR

Proposals to redevelop infill sites can often present difficult issues relating to how the potential effects of preexisting contamination should be evaluated under CEQA.  In a recently published opinion, the court in Parker Shattuck Neighbors v Berkeley made it clear that, in the absence of real evidence a significant environmental impact might occur,  the fact … Continue Reading

Criminal Penalties for Bird Deaths Caused by Wind Projects

In the first criminal case ever prosecuted under the Migratory Bird Treaty Act, the U.S. Fish and Wildlife Service and Department of Justice filed misdemeanor charges against Duke Energy for more than 163 migratory bird deaths, including golden eagles, at its wind power projects near Casper, Wyoming.  On November 22, 2013, the case was resolved by … Continue Reading

Comment Periods Open on New Fracking Regulations and Scope of Statewide EIR

In the face of mounting public pressure to address the potential perils of hydraulic fracturing, California has embarked upon a multi-faceted program to strengthen its oil and gas regulations, perform comprehensive environmental studies, and increase public disclosure.  On November 15, 2013, the Department of Conservation published two notices seeking comments on steps it is taking to … Continue Reading

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 were required … Continue Reading

EPA Publishes Draft Scientific Report To Support Significant Expansion of Clean Water Act Jurisdiction

On September 17, 2013, the Environmental Protection Agency announced the release of a draft scientific report that is widely seen as a prelude to upcoming regulations that would significantly expand federal permitting jurisdiction under the Clean Water Act. See our update for more information about the draft report, which is titled “Connectivity of Streams and … Continue Reading

Ninth Circuit Moves Low Carbon Fuel Regulations Closer to Validation

Many CEQA and NEPA analyses of greenhouse gas impacts assume implementation of the Low Carbon Fuel Standard adopted by the California Air Resources Board. In a boost to the credibility of these analyses, the Ninth Circuit has dissolved a pending injunction and rejected multiple challenges to the Low Carbon Fuel Standard. Rocky Mountain Farmers Union … Continue Reading