2013 4th QUARTER ENVIRONMENTAL LAW UPDATE

By Diane Kindermann, William W. Abbott, Glen Hansen and Katherine J. Hart

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With Friends Like This, Who Needs CEQA Enemies?

By William W. Abbott

Friends of Oroville v. Wal-Mart Stores, Inc. (August 19, 2013, C070448) ___ Cal.App.4th ___.

Wal-mart moved several steps closer to a new store as a result of the most recent appellate court decision over a new retail center proposed to be constructed in Oroville, suffering a setback however on greenhouse gas emissions. Friends of Oroville appealed a planning commission approval of a proposed supercenter, intended to replace an existing store. Following the appeal hearing, the City Council approved the new store, and the Friends of Oroville filed a petition for writ of mandate to set aside the approval. The trial court denied the petition, and Friends of Oroville appealed. On appeal, the appellate court affirmed the legal sufficiency of the EIR save one issue (greenhouse gases) and one clarification (payment of traffic fees.) The published portion of the decision pertains to greenhouse gas analysis, and the court ruled as follows.

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Williamson Act Contract Cancellation For Solar Project Upheld Along With Companion Environmental Impact Report

By William W. Abbott

Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.

Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). I wager that few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.

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Federal Courts Continue To Reject Climate Change Lawsuits That Rely On Federal Common Law

By Glen Hansen

In American Electric Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011) (“AEP”), the United States Supreme Court held that the Clean Air Act (“CAA”) and any Environmental Protection Agency action authorized by the CAA displaces any federal common law of interstate nuisance seeking abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Following AEP, several federal courts in 2012 rejected lawsuits based on common law claims that sought to remedy climate change, either by way of damages or injunctive relief.

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Climate Action Team Releases Plan to Deal with Extreme Heat Caused by Global Warming

By Sharon Buckenmeyer

The State’s Climate Action Team just released an Extreme Heat Adaptation Interim Guidance Document to provide direction to State agencies for the incorporation of extreme heat projections into planning and decision making. The guidance document focuses on the health aspects of increasing temperatures in California and provides recommendations to State agencies for strategies for cooling the built environment (buildings, roadways and paved surfaces) and mitigating the effects of urban heat islands. These recommendations include creating heat resilient and cooler communities by identifying opportunities to incorporate strategies to increase urban greening (trees, parks and green roofs), using lighter colored or cooler materials and stream restoration. While this document is prepared as a guideline for State agencies, it is visualized local governments will use it as well. To view the Extreme Heat Adaptation Interim Guidance Document, please click here. Comments on the draft document can be made by the general public online at: climatechange@calepa.ca.gov.

Sharon Buckenmeyer is a paralegal at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

The Commerce Clause As A Sword To Challenge California's Efforts To Curb Greenhouse Gas Emissions

By Glen C. Hansen

As California seeks to reduce greenhouse gas (“GHG”) emissions in the state’s industries in order to implement provisions of California’s Global Warming Solutions Act of 2006 (i.e., AB 32), entities and trade groups both inside and outside the state have looked to the “dormant” Commerce Clause in the U.S. Constitution as a legal means to challenge those efforts. That constitutional argument could be potent. As Professor Deborah A. Sivas of Stanford Law School explains: “It could become impossible for states to do anything for regulating greenhouse gas emissions if there’s an invigorated dormant Commerce Clause, because states can’t really get their arms around emissions unless they look at what other states are doing.” To date, dormant Commerce Clause challenges to California’s GHG-reduction efforts have met with varied success in the federal courts.

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Climate Change: a new perspective on long range planning.

While CEQA predominates many local government discussions of climate change, the state has taken a longer view as well, seeking input on strategies for local adaption to climate change. The draft handbook can be found at http://resources.ca.gov/climate_adaptation/docs/APG_-_PUBLIC_DRAFT_4.9.12_small.pdf. A state sponsored webinar will take place on May 15, and comments can be submitted electronically at http://resources.ca.gov/climate_adaptation/local_government/adaptation_policy_guide.html

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Cap and Trade Regulations Approved and Transmitted; Preliminary List of Covered Entities Now Available

By Leslie Z. Walker

On December 13, the Office of Administrative Law (“OAL”) approved and transmitted to the Secretary of State the regulations for the California Cap on Greenhouse Gas Emissions and Market-Based Compliance Mechanisms (Cal. Code Regs., tit 17, §§ 95800 et seq.), (“Cap and Trade Regulations”) including Compliance Offset Protocols (“Offset Protocol”). One day later, OAL approved and filed with the Secretary of State revisions to Mandatory Reporting Requirements initially enacted in 2007 (“MRR”). The Cap and Trade Regulations, Compliance Offset Protocol, and MMR are central to implementing California’s Global Warming Solutions Act (AB 32, Health & Saf. Code, § 38500 et seq.) and will take effect on January 1, 2012.

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2nd Appellate District Again Holds That For The Purposes Of CEQA, It Is The Impact Of The Project On The Environment, Not The Other Way Around

By William W. Abbott

The Second Appellate District tackled several technical, but important legal considerations in a newly published decision, including whether the lead agency must analyze the impact of the environment on the project. (Ballona Wetlands Land Trust v. City of Los Angeles (December 2, 2011, B231965) ___ Cal.App.4th ___) This case involves the aftermath to an earlier court decision finding the EIR for the Playa Vista project to be deficient, and directing the City of vacate the approvals and correct certain EIR deficiencies. Consistent with the court’s earlier ruling, the City and developer went back to work on a revised EIR, and as a result of amendments to the CEQA Guidelines, included an analysis of greenhouse gas emissions, and re-approved the project, with mitigation measures. Opponents filed an opposition to the return to the writ, as well as a new petition. The trial court consolidated the two actions, denied the petition, then discharged the writ, following which the opponents appealed. The issues on appeal included sufficiency of analysis and disclosure of archaeological resources and mitigation, sufficiency of analysis of GHG as it related to coastal flooding; and whether the opponents could renew a challenge to the project description.

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Attorney General Comments on Draft EIR for First SB 375 Sustainable Communities Strategy

By Leslie Z. Walker

San Diego Association of Governments has prepared the first draft Regional Transportation Plan (“RTP”) to include a Sustainable Communities Strategy (“SCS”), as required by Senate Bill 375. As drafted, the SCS will achieve the California Air Resources Board’s (“CARB”) 2020 and 2035 greenhouse gas emission reduction targets. CARB staff reviewed the draft RTP/SCS and the quantification of the greenhouse gas reductions expected from implementation of the plan in an Informational Report. The report found that the RTP/SCS would meet the 2020 target of a 7 percent per capita reduction and would just meet the 2035 target of a 13 percent per capita reduction.

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Lead Agencies Are Not Always Required to Explain Why Every Proposed Mitigation Measure is Infeasible

By Leslie Z. Walker

In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (June 30, 2011, No. B224242) __ Cal.App.4th ___, the Court of Appeal for the Second Appellate district held that an agency does not necessarily have to explain why it has not adopted each mitigation measure on the Attorney General’s list of proposed greenhouse gas mitigation measures. The City of Santa Clarita approved a Master Plan for the expansion of a hospital and medical facilities (Project) by adopting a statement of overriding considerations and certifying the final environmental impact report (EIR) for the Project, adopting a development agreement between the city and the real parties in interest, and adopting the Master Plan (Approvals). The Project would expand the amount of hospital and medical office space on the existing site from its current size of 340,071 square feet to 667,434 square feet and would add nine proposed structures over the 15-year period of the Project.

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Implicit Approval of Using AB 32 Reduction Goals to Establish GHG Thresholds

By Leslie Z. Walker

In Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (July 8, 2011, D057779) ____ Cal.App.4th ____, the Court of Appeal for the Fourth Appellate District found substantial evidence of a fair argument that the development of a Target store would have a significant environmental impact by disturbing contaminated soil, but rejected challenges based on air pollution and greenhouse gas impacts.

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Petitioners Be Forewarned: Massive Document "Dumps" May Not Suffice To Exhaust Administrative Remedies; Water Supply Assessments May Be Approved Via Certification Of An EIR.

By Katherine J. Hart

In the recent opinion of CREED v. City of San Diego (2011 Cal. App. LEXIS 720, Court of Appeal, Fourth Appellate District) petitioners are cautioned not to rely on massive, unorganized, last minute submittals of documents and data without clarifying and outlining their specific concerns in order to provide an agency with an opportunity to respond. The court of appeal also held that water supply assessments (WSAs) can be approved by a CEQA lead agency that also serves as the water supplier for the project area by including the WSA analysis in the environmental document and certifying that environmental document (e.g., no separate WSA approval is necessary).

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2011 CEQA MID-YEAR UPDATE

By Leslie Z. Walker, William W. Abbott, Cori M. Badgley and Katherine J. Hart

In the first six months of 2011, the appellate courts have issued eight opinions and the results are a mixed bag. On the one hand, the Sixth Appellate District gave cities and project proponents a strategy to deal with Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150); the First Appellate District gave more clarity on deferred mitigation in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884; and the Fourth District held that petitioners failed to exhaust their administrative remedies when they did not fairly present evidence to the City (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032). On the other hand however, the Fifth Appellate District held that project components not properly documented for CEQA purposes cannot be severed from the balance of the approval and a project found to partially violate CEQA, must be set aside in its entirety (Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675.)

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AB 32 Scoping Plan Enjoined

By Leslie Z. Walker

San Francisco Superior Court enjoined the implementation of the Air Resources Board’s Climate Change Scoping Plan, finding the alternatives analysis and public review process violated both CEQA and the Air Resources Board’s certified regulatory program.

The Scoping Plan is the strategy for achieving the Greenhouse Gas (“GHG”) reductions mandated by the Global Warming Solutions Act of 2006 (Health & Saf. Code, 38500 et seq., “AB 32”). AB 32 directed the Air Resources Board (“ARB”) to prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions by 2020. (Health & Saf. Code, § 38561.) ARB adopted the Climate Change Scoping Plan including the functional equivalent document (“FED”) on December 12, 2008. Petitioners challenged both the Scoping Plan and the FED, claiming the former violated AB 32 and the latter violated CEQA and ARB’s certified regulatory program (Cal. Code Regs., tit. 17, 60005-60007). The court found the plan violated CEQA and the certified regulatory program, but not AB 32.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

CARB Adopts SB 375 Targets for GHG Reductions Despite Economic Concerns

By Leslie Z. Walker

The alliances between homebuilders and conservation groups forged during the drafting of Senate Bill 375 unraveled around the Regional Greenhouse Gas Emission Reduction Targets for Automobiles and Light Trucks (“Targets”) adopted today by the California Air Resources Board ("CARB"). Despite the suffering building industry’s claims that the Targets are too ambitious, CARB unanimously voted to adopt the Targets. The Sustainable Communities and Climate Protection Act of 2008, Senate Bill 375, requires CARB to set targets for GHG reduction for 2020 and 2035 and further requires the 18 Metropolitan Planning Organizations (“MPOs”) include Sustainable Communities Strategies (“SCS”) to achieve these Targets in their Regional Transportation Plans.

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Sacramento County Climate Action Plan - Part Two

By Emilio Camacho & Leslie Walker

The County of Sacramento kicked off Phase 2 of the Climate Action Plan development at a workshop on Wednesday, August 25, 2010. Phase 2 will develop strategies to implement the Climate Action Plan (CAP), a comprehensive plan for becoming more resource efficient and reducing greenhouse gas (GHG) emissions, originally released in May 2009. 

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Sacramento County Climate Action Plan Information Workshop

Sacramento County released the general strategy component of its Climate Action Plan (“CAP”) in May of 2009. A workshop on Wednesday August 25, 2010 will focus on strategies for the implementation component of the CAP. The workshop will take place on August 25, 2010 at 3:00 p.m. in the Board of Supervisors Chambers at 700 H Street, Sacramento, California 95814. More information is available on Sacramento County’s Sustainability Web Page.

. . . And the Number is . . . Five to Ten Percent Reduction Target for 2020

By Leslie Z. Walker

As mandated by SB 375 (Stats 2008, Ch.728) the California Air Resources Board (CARB) is required to set passenger vehicle greenhouse gas emission (GHG) reduction targets for 2020 and 2035 for each of the 18 Metropolitan Planning Organization (MPO) regions in California. CARB must set the targets by September 30, 2010. (Gov. Code, § 65080 subd. (b)(2)(A).)

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898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change

 By Leslie Z. Walker

The City of Richmond (“City”) and Chevron Products Company (“Chevron”) gave the First District Court of Appeals the opportunity to deliver the first ever appellate court decision on an Environmental Impact Report’s (“EIR”) treatment of greenhouse gas emissions (“GHG”). On April 26, 2010, the Appellate Court found in Communities for a Better Environment v. City of Richmond, (April 26, 2010, A125618) __Cal.App.4th__ the EIR prepared for the construction of an Energy and Hydrogen Renewal Project (“Project”) inadequate in its project description and mitigation of GHG. The factors that likely influenced the appellate court’s decision included: the deal struck between the applicant and the City whereby Chevron would pay the City $61 million dollars to fund civic improvement and the City would fast track the additional permits required for the project; the fact that the project as described in its Security and Exchange Commission documentation, made under oath, contradicted the Project description in the EIR; the City’s delay in concluding the Project’s GHG emissions would create a significant impact on the environment, and the plan for mitigating this contribution would not be developed until up to one year after the issuance of the conditional use permit for the Project.

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CEQA Guidelines for Greenhouse Gas Emissions Become Law Today

By Leslie Z. Walker

Almost three years after Attorney General Edmund G. Brown, Jr. filed suit against the County of San Bernardino for failing to consider the impacts of the County’s General Plan on Global Warming, the Amendments to the CEQA Guidelines Addressing Greenhouse Gas Emissions mandated by Senate Bill 97 (Chapter 185, Statues 2007; Pub. Resources Code, § 21083.05), take effect today. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

30 Days Left: CEQA Guideline Amendments for Greenhouse Gas Emissions to Become Law on March 18, 2010

By Leslie Z. Walker

Today, February 16, 2010, the Office of Administrative Law filed the Amendments to the CEQA Guidelines addressing greenhouse gas emissions (“Amendments”) with the Secretary of State. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) The Amendments will become effective on March 18, 2010. Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

 

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Bay Area Air Quality Management District Defers Adoption of Greenhouse Gas Thresholds

By Leslie Z. Walker

The Bay Area Air Quality Management District (“BAAQMD”) was scheduled to be the first air district in the state to adopt quantitative as well as qualitative thresholds of significance for greenhouse gas emissions in January of 2010, but instead has delayed the decision until April of 2010. According to BAAQMD, the delay is to “provide more time for staff to meet with local governments, further develop analysis tools, and conduct trainings on applying the CEQA Guidelines.”

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2009's Top 10: Legislation, Regulations, & Cases

From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!

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Greenhouse Gas Guidelines and Thresholds: Science Required

By Leslie Z. Walker

In the last weeks of 2009, the Natural Resources Agency adopted CEQA Guidelines Amendments for the mitigation of greenhouse gas emissions (“Amendments”), while the San Joaquin Valley Air Quality Management District (“SQAQMD”) became the first air district in the state to adopt thresholds of significance, which will likely face challenge from the California Attorney General.

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Reminder! Save the Date

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 21, 2010
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 12, 2010
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

 

CEQA: 2009 Year in Review

This article highlights the 2009 CEQA court decisions along with the proposed changes to the CEQA guidelines. Many of the highlights are linked to more detailed analyses prepared by the attorneys at Abbott & Kindermann, LLP.

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Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 21, 2010
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 12, 2010
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

CEQA Guidelines on Greenhouse Gases One Step Closer to Law

By Leslie Z. Walker

On July 3, 2009, the Natural Resources Agency issued a notice of proposed action (“Notice”) for the adoption of CEQA guidelines addressing the evaluation and mitigation of greenhouse gas emissions.  Public Resources Code section 21083.05 requires that the Governor’s Office of Planning and Research (“OPR”) “prepare, develop, and transmit to the Resources Agency guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions,” by July 1, 2009. OPR transmitted these in April of 2009, ahead of schedule.  See OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency. The Resources Agency has noticed its intent to adopt the guidelines, as proposed by the OPR.  The Notice commenced the rulemaking process for the guidelines.

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US EPA Grants California Waiver to of Clean Air Act Preemption to Enforce Greenhouse Gas Emission Standards

By Leslie Z. Walker

More than three years after the State’s initial request, the United States Environmental Protection Agency (“US EPA”) granted California’s request for a waiver to allow the state to enforce its greenhouse gas (“GHG”) emission standards for new motor vehicles.  The waiver, coincidentally granted as the nation’s largest automaker works its way through bankruptcy court, allows the regulations developed by the California Air Resources Board (“CARB”) in response to Assembly Bill 1493 (Chapter 200, Statutes 2002) to take effect.  The regulations add four GHGs to California’s existing regulations and phase in emission standards for those gases.

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Update: House Passes Climate Change Bill

The House of Representatives voted on the American Clean Energy and Security Act, known as the Waxman-Markey or Cap and Trade bill. The House passed the bill by a vote of 219 to 212. The bill now moves to the Senate.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

House Slated to Vote on Climate Change Bill Today

By Leslie Z. Walker

The House of Representatives is expected to vote on the American Clean Energy and Security Act (H.R. 2454), known as the Waxman-Markey or Cap and Trade bill, today.  Under the bill, the Administrator of the Environmental Protection Agency would be required to promulgate regulations to cap and reduce Green House Gas emissions (“GHG”) annually, so that GHG emissions from capped sources are reduced by 3 percent (from 2005 levels) by 2012, 17 percent by 2020, and 42 percent by 2030.  (H.R. 2454, § 703.) Sources able to meet and surpass their reduction requirements will be allowed to sell their excess reduction credits while sources unable to meet their targets may purchase offsets in order to obtain compliance. Abbott & Kindermann, LLP will keep you posted on the status of the bill.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Attorney General Sues Pleasanton Over Illegal Housing Cap

By Cori Badgley

The Attorney General’s Office declared in a press release on June 24, 2009 that it intervened in a suit against the City of Pleasanton to remove the City’s “draconian and illegal” housing cap.  The housing cap, which was instituted in 1996 through Measure GG, limits housing to 29,000 units throughout the City.  The City can only accommodate another 2,000 units, if the housing cap remains in place.  According to the Attorney General, the job growth over the past 10 years has nearly doubled from 31,683 to more than 58,000, while the available housing has only increased by 7,000 units.  The draft General Plan Update predicts the creation of 45,000 more jobs over the next 15 years.  In addition to not meeting the City’s fair share regional housing needs, the Attorney General asserts that the housing cap will lead to increased traffic congestion, urban sprawl, greenhouse gas emissions and an increased dependence on foreign oil.  As the case progresses, Abbott & Kindermann, LLP will provide further updates.

Cori M. Badgley is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency

By Leslie Z. Walker

Two months ahead of the deadline mandated by SB 97 (Chapter 185, Statutes 2007; Public Resources Code section 21083.05), the Governor’s Office of Planning and Research (“OPR”) proposed amendments to the CEQA Guidelines for the mitigation of greenhouse gas emissions (“Proposed Guidelines”) and transmitted them to the Resources Agency for rulemaking on Monday, April 13, 2009.

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EPA Issues Proposed Endangerment Finding for Greenhouse Gas Emissions

By Leslie Z. Walker

On April 17, 2009, the U.S. Environmental Protection Agency (“EPA”) released a proposed finding under Section 202 of the Clean Air Act (42 U.S.C. § 7521(a)(1)) that greenhouse gases in the atmosphere endanger the public health and welfare. (See Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act.)

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No Surprises in Draft CEQA Guidelines for Greenhouse Gas Emissions

By Leslie Z. Walker

Six months after releasing its Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review (see OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat), the Governor’s Office of Planning and Research issued Preliminary Draft CEQA Guideline Amendments for Greenhouse Gas Emissions on January 8, 2009.The Guideline amendments were developed in response to Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) which directs OPR to develop draft CEQA Guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions by July 1, 2009.

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ARB Adopts Scoping Plan Implementing AB 32

By William Abbott

Not one to shy away from controversy, the Air Resources Board (“ARB” or “Board”), finally launched California into a new era of thinking by adopting the Climate Change Scoping Plan (“Plan”). The sacred cows were not spared as the Board took swift action to push forward the implementation of Greenhouse Gas (“GHG”) reduction strategies called for in AB 32.

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Update on ARB Guidance on CEQA Thresholds: One Plan, Many Voices, Dissidents Abound

By Michelle Engel

The Air Resources Board (“ARB” or “Board”) has their hands full. A question and answer session, with more questions than answers, commenced on December 9, when the ARB Staff Project Team held their second public meeting to discuss the development of recommended approaches for setting thresholds for greenhouse gases (“GHG”) under the California Environmental Quality Act (“CEQA”).   The task assigned to ARB has been criticized as being “impossible to achieve” given the lack of experience the ARB Staff has with local government and in dealing with CEQA.

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ARB in the Hot Seat on Climate Change: On Thursday, December 11, the Board is Scheduled to Take Action on the Climate Change Proposed Scoping Plan

By Michelle Engel

The Air Resources Board (“ARB” or “Board”) finds itself at ground zero of California’s strategy to address climate change. The Climate Change Proposed Scoping Plan (“Plan”), dated October 2008, has been praised and panned and with the guiding philosophy that you haven’t done your job unless you make everyone unhappy, perhaps the Plan is close to the mark.

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SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm

By Leslie Z. Walker and Cori M. Badgley

California’s land use planning structure has long been governed by a philosophy of home rule. Periodically, the legislature has identified specific typical areas for state intrusion: housing policy and airport land use planning are two examples. Among other provisions, SB 375 (Chapter 728, Statutes 2008) reflects a new area of state intervention, brought on by the rising concern over global warming. This time, it is through the regional transportation planning process, with the apparent thinking that once you control the purse strings, local governments will fall into line. SB 375’s major elements are:

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ARB Guidance on CEQA Thresholds: Not Every Bit Counts, and CEQA Exemptions Apply

By Leslie Z. Walker

For the two years following passage of Assembly Bill 32 (Chapter 488, Statutes 2006), practitioners have wrestled with establishing the level at which a project’s contribution to global climate change is considered to be significant for the purposes of the California Environmental Quality Act (“CEQA”).

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Leslie Walker's Global Climate Change Article Published in Public Law Journal

The Public Law Journal, Summer 2008 issue, Vol. 31 No. 3, features an article on Global Climate Change from Abbott & Kindermann’s own Leslie Z. Walker. The article, Warming Up to Global Climate Change, can be viewed here. Members of the Public Law Journal can view the entire periodical by logging onto the State Bar of California Public Law Section website.

Ms. Walker, an associate at the firm, primarily practices in the areas of land use and environmental law with a particular focus on climate change. She is a member of the State Bar of California, the Environmental and Real Property Sections of the Sacramento County Bar Association, and admitted to practice before the state courts in California and the U.S. District Court, Eastern District of California.

 

Ms. Walker is a Building Industry Association, BUILD (Building Universal Industry Leadership & Development) Recruit and a member of the American Planning Association Sacramento Chapter, and the Urban Land Institute.

Mid Year Heat Up: Climate Change January-July 2008

By Leslie Walker

For the general public, the most exciting events so far this year on the climate change front have been at the national level. The Secretary of the Interior announced that the Polar Bear is a threatened species under the Endangered Species Act (16 U.S.C. § 1531 et seq.) because reduced sea ice coverage threatens its habitat; and Congress hotly debated, and then rejected, a bill to reduce greenhouse gas emissions to 66% below 2005 levels by 2050.

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Local Government Responsible for 1% of Statewide GHG Emission Reduction According to ARB Draft Plan

By Leslie Z. Walker

On June 26, 2008, the California Air Resources Board (“ARB”) released a draft of the scoping plan required under Assembly Bill 32 (Chapter 488, Statutes 2006), the Global Warming Solutions Act of 2006 (“AB 32”). AB 32 requires greenhouse gas (“GHG”) emissions be reduced to 1990 levels by 2020. (Health & Saf. Code, § 38550.) In order to accomplish this, ARB had to determine, by January 1, 2008, what the statewide greenhouse gas emission level was in 1990. (Id.) By January 1, 2009, ARB must prepare and adopt a scoping plan which achieves required reductions in greenhouse gas emissions by 2020. (Health & Saf. Code, § 38561.) A draft of this scoping plan was released on June 26, 2006.

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OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat

By Leslie Z. Walker

CEQA practitioners have spent the last year anxiously anticipating the Governor’s Office of Planning and Research (OPR) advice to local agencies on the evaluation of greenhouse gas (GHG) emissions and their effect on climate change in the CEQA process. On June 19, 2008, OPR offered a peek at its perspective by issuing the Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review.

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1,100 Lawyers Looking for Someone to Sue on Global Warming

Attorney General Jerry Brown has “1,100 lawyers standing by and they’re looking for someone to sue,” according to the Sacramento Bee. A March 31, 2008 article quoted the Attorney General discussing “his determination to go to court to enforce California laws to cut pollutants blamed for global warming.”

See Abbott & Kindermann’s review of the first of the Attorney General’s five conferences entitled CEQA and Climate Change: Partnering with Local Agencies to Combat Global Warming.

Leslie Walker is an associate with Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Attorney General's Conference on Climate Change: Many Methods, No Answers

By Leslie Z. Walker

The California Attorney General and the Local Government Commission hosted the first of five statewide workshops, CEQA and Climate Change: Partnering with Local Agencies to Combat Global Warming, on Thursday, March 20, 2008. In his invitation to cities and counties across the state, the Attorney General explained that planning for Climate Change should not await the 2012 implementation of binding Greenhouse Gas (“GHG”) emission limits and emission reduction measures required by AB 32. At the workshop, the Attorney General reiterated his position that CEQA requires GHG analysis. The line-up of morning speakers, who discussed thresholds, modeling emissions and mitigation measures, suggested that since tools exist to measure and mitigate GHGs, agencies are required to do so.

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Trial Court Rules CEQA Did Not Require Global Warming Analysis

By Leslie Z. Walker

On January 29, 2008, Judge Thomas Cahraman of the Riverside Superior Court ruled that CEQA did not require the Banning City Council to consider the Global Warming impacts of a project approved prior to the enactment of AB 32.

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Attorney General Criticizes San Diego's Smart Growth Strategy for Failure to Fully Address Global Warming Impacts

By Leslie Z. Walker

On November 30, 2007 the San Diego Association of Governments (“SANDAG”) adopted its 2030 Regional Transportation Plan (“RTP”) over Attorney General Jerry Brown’s criticism that the Environmental Impact Report (“EIR”) for the RTP “does not fully address the impacts on global warming of the project.” 

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SB 97 Provides CEQA Guidance

By Leslie Z. Walker

Governor Schwarzenegger signed SB 97 (Chapter 185, Statutes 2007) Senator Dutton’s CEQA and greenhouse gas emission bill, into law on August 24.  The legislation provides partial guidance on how greenhouse gases (“GHGs”) should be addressed in certain CEQA documents.

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Landmark Settlement in Global Warming Case

By Leslie Z. Walker

Attorney General Jerry Brown and the County of San Bernardino have reached a landmark settlement in the state’s global warming suit against the County. 

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