The California Department of Fish and Wildlife (“CDFW”) announced its annual filing fee increase for all California Environmental Quality Act environmental documents.  The filing fees will be effective starting January 1, 2022. For additional information see CEQA Environmental Document Filing Fees (ca.gov). The 2022 CEQA filing fees are listed below:

CEQA Document Fees Effective
January 1, 2021
Fees Effective
January 1, 2022
Negative Declaration (ND) $2,480.25 $2,548.00
Mitigated Negative Declaration (MND) $2,480.25 $2,548.00
Environmental Impact Report (EIR) $3,445.25 $3,539.25
Environmental Document pursuant to a Certified Regulatory Program (CRP) $1,171.25 $1,203.25
County Clerk Processing Fee $50.00 $50.00

Daniel Cucchi is a Senior Associate and Mariah Ponce is a Law Clerk at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Welcome to Abbott & Kindermann, Inc.’s November Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.

  1. PREVIOUS MONTH’S UPDATE

To read the September 2021 Environmental Action News post, click here:

https://blog.aklandlaw.com/2021/10/articles/water-quality-wetlands-clean-water-act/september-environmental-action-news-2/

  1. SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE

A. WATER RIGHTS AND SUPPLY

  1. State Water Resources Control Board Issues Curtailment Orders Following Drought Conditions In The State.

On April 21, 2021, California Governor Gavin Newsom issued a drought emergency proclamation to include a total of 41 counties that make up 30% of California’s population. On May 10, 2021, Newsom added Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed counties to the list of counties under a drought state of emergency. The proclamation directed the State Water Board (“Board”) to consider modifying requirements for reservoir releases and diversion limitations to conserve water upstream later in the year to maintain water supply, improve water quality and protect cold water pools for salmon and steelhead. The state of emergency also enables flexibilities in regulatory requirements and procurement processes to mitigate drought impacts and directs state water officials to expedite the review and processing of voluntary transfers of water from one water right holder to another. The Board has now issued multiple emergency curtailment orders pursuant to the Governor’s emergency proclamation.

For more information see:

https://www.latimes.com/california/story/2021-05-10/drought-emergency-now-extends-to-4-1-california-counties-newsom-says

https://www.gov.ca.gov/2021/05/10/governor-newsom-expands-drought-emergency-to-klamath-river-sacramento-san-joaquin-delta-and-tulare-lake-watershed-counties/

https://www.gov.ca.gov/wp-content/uploads/2021/05/5.10.2021-Drought-Proclamation.pdf

B. AIR QUALITY AND CLIMATE CHANGE

  1. Supreme Court’s Upcoming Review Of The Environmental Protection Agency’s Greenhouse Gas Emissions Authority Could Change Scope Of EPA’s Ability To Regulate Carbon Emissions.

On October 29, 2021, the U.S. Supreme Court agreed to review a D.C. Circuit decision that vacated the Trump Administration’s Affordable Clean Energy (“ACE”) rule. The ACE rule addressed greenhouse gas (“GHG”) emissions from existing fossil-fired power plants. The D.C. Circuit concluded that the Trump administration erred in concluding that only certain on-site emission-reduction measures can be the “best system of emission reduction” for existing power plants under Section 111(d) of the Clean Air Act. The Trump Administration’s interpretation significantly limited the scope of measures the Administrative Branch of the Federal Government could take to address GHG emissions. The Supreme Court granted review only on statutory and constitutional questions relevant to the scope of measures lawfully considered under Section 111(d). Industry petitioners who argued that coal-fired power plants could not be regulated at all under Section 111(d), because the same sources are regulated under Section 112 of the Clean Air Act, but the court declined to consider this issue. The Supreme Court’s decision in this case could impact the ability of the United States to address climate change by dictating how the EPA can regulate GHG emissions in the power sector.

https://www.law360.com/energy/articles/1436438/high-court-review-puts-epa-in-carbon-regulatory-limbo?nl_pk=174dfb7b-ac16-4f14-9642-69d73ac0d847&utm_source=newsletter&utm_medium=email&utm_campaign=energy

https://eelp.law.harvard.edu/2019/09/epa-voc-and-methane-standards-for-oil-and-gas-facilities/

https://www.natlawreview.com/article/us-supreme-court-agrees-to-review-scope-epa-authority-over-power-plant-greenhouse

  1. 100% Of Companies In California Cap-And-Trade Program Meet 2020 Compliance Obligations.

On November 3, 2021, the California Air Resources Board announced that all businesses covered by California’s cap-and-trade program fully complied with greenhouse gas reduction obligations from 2018-2020. This is significant because the program helped the state meet its 2020 emission reduction targets four years early. Additionally, the rate of reduction will help California meet its ambitious 2030 goal of 40% total reduction in emissions. The cap-and-trade program requires companies to fully account for their GHG emissions by reducing emissions and/or purchasing allowances and turning them in to the state. Companies are also allowed to turn in a limited number of CARB-approved carbon offsets. Since 2013, the Legislature has appropriated $15.4 billion in California Climate Investments funds for projects statewide, $9 billion of which are either underway or completed. A detailed report containing information on each business’s compliance will be available on December 1, 2021.

https://ww2.arb.ca.gov/news/100-companies-cap-and-trade-program-meet-2020-compliance-obligations

C. RENEWABLE ENERGY

  1. California Energy Commission Adopted 2022 Building Energy Efficiency Standards For Newly Constructed And Renovated Buildings.

The California Energy Commission (“CEC”) adopted the 2022 Building Energy Efficiency Standards (“Energy Code”) for newly constructed and renovated buildings. The CEC adopts standards every three years to increase energy efficiency and lower the carbon footprint of buildings. This update will be submitted to the California Building Standards Commission which will consider the update in December 2021. If approved, the 2022 Energy Code will go into effect on January 1, 2023. The 2022 Energy Code focuses on:

  • Encouraging electric heat pump technology for space and water heating, which consumes less energy and produces fewer emissions than gas-powered units.
  • Establishing electric-ready requirements for single-family homes to position owners to use cleaner electric heating, cooking and electric vehicle (EV) charging options whenever they choose to adopt those technologies.
  • Expanding solar photovoltaic (PV) system and battery storage standards to make clean energy available onsite and complement the state’s progress toward a 100 percent clean electricity grid.
  • Strengthening ventilation standards to improve indoor air quality.

For more information see:

https://www.energy.ca.gov/news/2021-08/energy-commission-adopts-updated-building-standards-improve-efficiency-reduce-0

https://www.energy.ca.gov/programs-and-topics/programs/building-energy-efficiency-standards/2022-building-energy-efficiency

D. HAZARDOUS MATERIALS AND REMEDIATION

  1. S. Environmental Protection Agency Sets Toxicity Guidelines For “Forever Chemicals.”

In April of 2021, EPA Administrator Michael Regan established the EPA Council on PFAS and charged it to develop a whole-of-EPA strategy to protect public health and the environment from the impacts of polyfluoroalkyl substances (“PFAS”). The EPA released the PFAS Strategic Roadmap in October of 2021, which outlines specific actions and commitments to protect communities from PFAS contamination. PFAS are widely used, long lasting chemicals, components of which break down very slowly over time. Because of their widespread use and their persistence in the environment, many PFAS are found in the blood of people and animals all over the world and are present at low levels in a variety of food products and in the environment. Scientific studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals. The newly formed EPA Council on PFAS will consider and implement the actions listed in the PFAS Strategic Roadmap. Key actions include:

  • Propose to designate certain PFAS as CERCLA hazardous substances.
  • Enhance PFAS reporting under the Toxics Release Inventory by proposing a rulemaking to remove exemptions and exclusions for toxic chemical reporting.
  • Establish a national primary drinking water regulation for perfluorooctanoic acid (“PFOA”) and perfluorooctanesulphonate (“PFOS”) that would set enforceable limits and require monitoring of public water supplies, while evaluating additional PFAS and groups of PFAS.
  • Restrict PFAS discharges from industrial sources through a multi-faceted Effluent Limitations Guidelines program to proactively establish national technology-based regulatory limits, including progress on the nine industrial categories in the proposed PFAS Action Act of 2021.
  • Build the technical foundation to address PFAS air emissions to identify sources, develop and finalize monitoring approaches for stack emissions and ambient air, develop information on cost-effective mitigation technologies, and increase understanding of the fate and transport of PFAS air emissions—to inform potential regulatory and non-regulatory mitigation options.
  • Use enforcement tools to better identify and address PFAS releases at facilities, as appropriate, to require actions by responsible parties, to limit future releases, and to address existing contamination.
  • Issue an annual public report on progress towards PFAS commitments included in this roadmap, as well as future actions the Agency may take.

For more information see:

https://www.law360.com/environmental/articles/1434246/epa-sets-toxicity-guideline-for-newer-forever-chemicals-?nl_pk=882d9226-7a00-4b3a-acfb-659fca057be9&utm_source=newsletter&utm_medium=email&utm_campaign=environmental

https://www.epa.gov/pfas/pfas-strategic-roadmap-epas-commitments-action-2021-2024

https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf 

E. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)

  1. The Council On Environmental Quality Filed Notice Of Proposed Rulemaking To Change Procedural Provisions Of NEPA.

The Council on Environmental Quality (“CEQ”) proposed modifications to the procedural provisions of NEPA. The most recent changes to these provisions occurred in 2020 and the CEQ believes the proposed changes better align with NEPA’s statutory text and purpose. The proposed changes generally revert the procedural provisions to the 1978 NEPA Regulations that were in effect for over 40 years. The proposed rule would make the following three important changes to the 2020 NEPA rules:

  1. Eliminate language in the description of purpose and need for a proposed action when it is an agency’s statutory duty to review applications for authorization (40 CFR 1502.13) and make a conforming edit to the definition of “reasonable alternatives” (40 CFR 1508.1(z));
  2. Remove limitations on agency NEPA procedures for implementing CEQ’s NEPA Regulations (40 CFR 1507.3); and
  3. Return to the definitions of “effects” in the prior, longstanding 1978 NEPA Regulations (40 CFR 1508.1(g)).

The Council on Environmental Quality is accepting comments on this proposed rulemaking through November 22, 2021. Comments can be submitted through the Federal Register link below.

For more information see:

https://www.federalregister.gov/documents/2021/10/07/2021-21867/national-environmental-policy-act-implementing-regulations-revisions

https://www.whitehouse.gov/ceq/news-updates/2021/10/06/ceq-proposes-to-restore-basic-community-safeguards-during-federal-environmental-reviews/

https://eelp.law.harvard.edu/2018/08/nepa-environmental-review-requirements/

F. MINING, OIL, AND GAS

  1. S. Environmental Protection Agency Proposed Methane Emissions Control Program That Targets Existing Oil And Gas Sources.

On November 2, 2021, the U.S. Environmental Protection Agency (“EPA”) released its proposed new performance standards and emissions guidelines for new and existing oil and gas facilities. The EPA is issuing the proposal in response to President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The EPA estimates that the proposed rule would reduce 41 million tons of methane emissions from 2023 to 2035, the equivalent of 920 million metric tons of carbon dioxide. The proposal contains updated and broadened methane and smog-forming volatile organic compounds (“VOC”) emission reduction requirements for new, modified, and reconstructed oil and gas sources, including standards that limit emissions from additional types of sources for the first time under the Clean Air Act. The proposal also includes a requirement that states develop plans to limit methane emissions from hundreds of thousands of existing sources nationwide, along with presumptive standards for existing sources to assist in the planning process. Key features of the proposed rule include:

  • a comprehensive monitoring program for new and existing well sites and compressor stations;
  • a compliance option that allows owners and operators the flexibility to use advanced technology that can find major leaks more rapidly and at lower cost than ever before;
  • a zero-emissions standard for new and existing pneumatic controllers (with a limited alternative standard for sites in Alaska), certain types of which account for approximately 30 percent of current methane emissions from the oil and natural gas sector;
  • standards to eliminate venting of associated gas, and require capture and sale of gas where a sales line is available, at new and existing oil wells;
  • proposed performance standards and presumptive standards for other new and existing sources, including storage tanks, pneumatic pumps, and compressors; and
  • a requirement that states meaningfully engage with overburdened and underserved communities, among other stakeholders, in developing state plans. EPA is seeking comment on additional sources of methane to further strengthen emission controls and increase reductions from oil and gas operations.

EPA will take comment on the proposed rule for 60 days after it is published in the Federal Register. For instructions on how to comment, please see the first link below.

For more information see:

https://www.epa.gov/system/files/documents/2021-11/epas-2021-oil-and-gas-proposal.-how-to-comment.pdf

https://www.law360.com/environmental/articles/1436869/epa-targets-methane-from-existing-oil-and-gas-sources?nl_pk=882d9226-7a00-4b3a-acfb-659fca057be9&utm_source=newsletter&utm_medium=email&utm_campaign=environmental

https://eelp.law.harvard.edu/2018/12/new-source-review/

G. ENVIRONMENTAL ENFORCEMENT

  1. S. Environmental Protection Agency and California Environmental Protection Agency Launch Joint Program To Strengthen Environmental Enforcement In Vulnerable Communities.

The U.S. Environmental Protection Agency (“EPA”) and the California Environmental Protection Agency (“CalEPA”) launched a partnership aimed at strengthening environmental enforcement in communities that are overburdened by pollution. This five-year Memorandum of Understanding (“MOU”) to expand joint activities supporting the agencies’ shared goals of reducing pollution burdens, increasing environmental compliance, and improving public health outcomes in overburdened California communities. The MOU creates a framework for a partnership between the two agencies and expands collaborative activities related to enforcement, inspections, compliance assistance, communication, community engagement, and training to benefit public health and the environment in overburdened communities.

Under the MOU, the agencies intend to:

  • Enhance existing collaborations by increasing joint inspections in overburdened communities; sharing or jointly developing metrics for determining pollution burdens and vulnerability; and collaborating on staff training.
  • Promote coordination of enforcement responses, including joint judicial enforcement actions in overburdened communities.
  • Expand engagement with overburdened communities to ensure that targeting of enforcement resources, and compliance-related activities are fully informed by the knowledge and lived experience of these communities.
  • Improve communication and transparency by collaborating on an annual workplan and annual report to highlight achievements under the MOU.

https://calepa.ca.gov/2021/09/10/press-release-u-s-epa-calepa-launch-joint-effort-to-strengthen-environmental-enforcement-in-communities-overburdened-by-pollution/

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

In January and February of 2022, Abbott & Kindermann, Inc. will present its 21st annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry. Links to registration will be released very soon.

A summary of 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY & CLIMATE CHANGE
  • RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

REGISTRATION

In-Person Registration Information:

  • January 21, 2022
  • Hilton Sacramento – 2200 Harvard St, Sacramento, CA 95815

FREE Continental Breakfast Included!

  • Registration: 8:00-9:00 A.M.
  • Conference: 9:00-12:00 P.M.
  • Registration Fee: $95.00

Virtual Registration Information:

  • February 10, 2022   3:00-5:00 P.M.   or

February 11, 2022     10:00-12:00 P.M.

  • Registration Fee: $40.00
  • Registration capped at 100 participants
  • Registrants receive email with a link to the pre-recorded session(s) two weeks before Q&A live panel sessions begin
  • Pre-recorded sessions held open one month after the Q&A live panel sessions end
  • Q&A live panel sessions where each attorney will answer questions
  • Registrants receive an email with password to live Zoom two days prior to chosen Q&A live panel sessions

Virtual Materials Included: 

  • Downloadable outline of case law and legislation for all 2021 topics available two weeks prior to event
  • Downloadable quick reference cards of practice tips and case law
  • List of upcoming classes

Please register early to reserve your spot. MCLE and AICP CM credits are available (approval pending). We hope you can join us and we look forward to engaging with you in one of our live sessions.

Please call Jeaninne Jenna-Budowich at (916) 456-9595 with any questions.

Costco Wholesale Corporation (“Costco”) applied to the City of Tustin (the “City”) for a conditional use permit and design review approval to build a new 32-pump gas station project next to an existing Costco warehouse. The project site was located within an existing shopping center and surrounded by commercial uses. The project consisted of two components which totaled 2.38 acres of development and included: (1) 1.74 acres for the gas station and ancillary facilities, and (2) 0.64 acres which included demolition of an existing Goodyear Tire Center and development of parking spaces. Original planning and environmental assessment documents listed the project site size as nearly 12 acres, which was the total size of the existing shopping center. The City’s planning commission determined that the project was categorically exempt from environmental review under the California Environmental Quality Act (“CEQA”) pursuant to the Class 32, Infill Development Projects exemption. (CEQA Guidelines § 15332). Appellants appealed the planning commission’s decision, and the city council adopted a resolution affirming the categorical exemption and concluded that the unusual circumstances exception does not apply to the infill exemption. The appellant filed a petition for writ of mandate and argued that the project did not qualify for the infill exemption because (1) the 12-acre project site listed in the original documents exceeded the project size criterion available under the exemption, and (2) the project fell within the scope of the unusual circumstances exception. The trial court denied the writ petition, and following appeal the Court of Appeal affirmed the trial court’s decision.

For a project to qualify for an infill exemption, five criteria must be met: (1) the project must be consistent with the applicable general plan and zoning, (2) development must occur within city limits on a project site of no more than five acres substantially surrounded by urban uses, (3) the site must not be habitat for endangered, rare, or threatened species, (4) project approval must not result in significant effects to traffic, noise, air quality, or water quality, and (5) the site must be adequately served by utilities and public services. Here, Appellants argued that the project site exceeded the five acres permitted under the infill exemption. However, the Court of Appeal found that the administrative record contained substantial evidence confirming that development for the project was limited to 2.38 acres of the total 12-acre shopping center, including language within the revised environmental assessment form, technical documents, maps, and staff reports that specified the area of work. As to application of the unusual circumstances exception, a categorical exemption cannot be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. ((CEQA Guidelines § 15300.2(c)). Here, the appellant argued that the unusual circumstances applied because of (1) potential soil contamination from the former operations of the Goodyear Service Center, (2) unusually large number of fueling pumps, and (3) the efforts required to reroute traffic. However, the Court of Appeal found that substantial evidence supported the City’s conclusion that the project was not unusual in size compared to other developments that qualified for the infill exemption nor was the project unusual as to the zoning and land use conditions within the vicinity of the project. Therefore, the Court of Appeal found that the City correctly applied the infill exemption.

William Abbott is Of Counsel and Mariah Ponce is a Law Clerk at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Welcome to Abbott & Kindermann’s 2021 3rd Quarter cumulative CEQA update. This summary provides links to more in-depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

2020 CEQA UPDATE

To read the 2020 cumulative CEQA review, click here: https://blog.aklandlaw.com/2021/01/articles/ceqa/2020-ceqa-4th-quarter-review/

CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is 1 CEQA case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

UPDATE

Ministerial Review

Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.

In the first published opinion interpreting Senate Bill 35 (“SB 35”), a statutory process to streamline review of eligible residential and mixed-use development projects, the developer filed suit challenging the City of Berkeley’s decision to deny the developer’s request to apply the SB 35 process to a mixed-use infill development on an existing parking lot. The City argued the project was ineligible for the following reasons: (1) the project violated the City’s requirements that projects meet certain performance standards for off-site impacts and not exceed certain amount and intensity of use requirements; (2) the project was located within a three-block area designated as a City Landmark for the state-listed historical resource known as the West Berkeley Shellmound (“Shellmound”), and would have, thus, violated the City’s Landmark Preservation Ordinance; and (3) applying SB 35’s requirements to the Project in light of the reasons above would violate the City’s rights as a charter city. The trial court agreed with the City and the developer appealed.

The First District Court of Appeal reversed, holding that the Project, pursuant to SB 35 was eligible for ministerial review and approval, and to do so does not violate the City’s charter authority. The court first held that applying SB 35 to the project would not violate the “home rule” doctrine regarding charter cities, reasoning that the Legislature may infringe on the City’s authority when it sufficiently articulates a statewide interest, such as was done in the adoption of SB 35 to “address[] the crisis level statewide lack of affordable housing by eliminating local discretion to deny approval where specified objective planning criteria are met.” As to the objective criteria under SB 35 regarding historical structures, the court held the Project was consistent because: (1) the Shellmound was not a structure as defined in SB 35 and was, thus, inapplicable; and (2) evidence in the record from a 2015 Draft EIR demonstrated that impacts on the Shellmound could be reduced to a less-than-significant level with mitigation.

Exemptions

Los Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018.

Petitioner challenged the County’s use of the commonsense exemption (CEQA Guidelines §15061(b)(3)), and the existing facilities exemption (CEQA Guidelines §15301) to support its condemnation proceedings to acquire fee simple title to three sites that the County currently leases and uses for landfills and the County’s continued operation of the landfills. In its decision certified for partial publication, the Fifth District Court of Appeal affirmed the trial court decision that: (1) no exhaustion was required because the County failed to give adequate notice that CEQA exemptions would be considered at the public hearing by the board of supervisors; and (2) that “facilities” in Section 15301 does not include the operation of unlined landfills.

Regarding exhaustion, the court reasoned that because the County’s hearing notice did not provide any notice of the CEQA grounds it would used to comply with CEQA, as stated in Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, issue exhaustion under Public Resources Code section 21177, subdivision (e), does not apply to petitioner’s claims when there is inadequate notice necessary to provide an “opportunity for members of the public to raise…objections” to those claims.

Regarding the application of “facilities” to unlined landfills, the court, relying on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 [“Azusa”], which held that the existing facilities exemption “should not be construed to include a large municipal waste landfill” affirmed the trial court’s rejection of the County’s use of Section 15301 because (1) the 1998 amendments to the CEQA Guidelines did not modify Section 15301 to include landfills despite the agency’s awareness of Azusa, and (2) the finding in Public Resources Code section 40000, subdivision (b), which states that “Over 90% of California’s solid waste currently is disposed of in landfills, some of which pose a threat to groundwater, air quality, and public health,” justifies the conclusion that “some” landfills, such as unlined landfills, are not a suitable class for a categorical exemption.

Mitigated Negative Declarations

Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th 771.

Petitioner, Newtown Preservation Society, challenged the County of El Dorado’s (the “County”) adoption of a mitigated negative declaration (“MND”) for its approval of the Newtown Road bridge replacement project in a rural, fire prone area of the County. At issue was the adequacy of the hazards analysis evaluating whether the bridge replacement project would: (i) “impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan,” or (ii) “expose people or structures, either directly or indirectly, to a significant risk of loss, injury, or death involving wildland fires.” The County found the impacts to be less-than-significant, as a result of the various temporary evacuation routes that could be employed under different scenarios and testimony from the County Sheriff’s Emergency Services Office and the County’s Fire Protection District, which had concluded that the available evacuation options, including a potential temporary emergency access easement that would bypass the bridge construction and re-connect Newtown Road, were sufficient to manage an evacuation in the event of a fire incident in the area during the construction of the new bridge. Petitioners relied primarily on testimony from community members, including several that had extensive wildfire firefighting experience and asserted that they believed the plans were insufficient to protect lives in an emergency situation. The trial court upheld the County’s adoption of the MND for the project, and petitioners appealed.

The Third District Court of Appeal affirmed. Petitioners argued that the record contained substantial evidence of a fair argument that the project would have a significant safety impact and that an EIR was required. They pointed to a litany of comments from neighbors, including experienced wildland firefighters who provided opinion testimony as to the significant impacts on resident safety and emergency evacuation caused by the project. The appellate court rejected the assertion. First, relying on California Building Industry Assn. v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the court noted that CEQA requires a focus on the projects impact on the environment, not the environment’s impact on the project to conclude that petitioners had improperly framed the fair argument test. Instead, it held that the proper question was whether there was “substantial evidence supporting a fair argument that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.” For that reason, the court found that the testimony provided by the community was focused on concerns about the existing hazards affecting their community and not on any potential impacts caused by or exacerbated by the project. Furthermore, the court reasoned that none of the commenters with wildland firefighting experience had any “experience in determining, directing, or effecting evacuation routes.” Thus, it held the testimony amounted to non-expert opinion unsupported by a factual foundation, and therefore did not constitute substantial evidence.

Environmental Impact Reports

Central Delta Water Agency v. Dept. of Water Resources, (Sept. 22, 2021) 2021 Cal.App.LEXIS 781.

In the latest of a nearly three decades long dispute over water through the State Water Project and the Monterey Agreements, the Third District Court of Appeal consolidated three appeals involving the Monterey Agreement, the Monterey Amendment, and the Monterey Plus EIR between the Department of Water Resources and petitioners Central Delta Water Agency (“CDWA”), Center for Biological Diversity (“CBD”), and Center for Food Safety (“CFS”), respectively. Each petitioner appealed the trial court’s decision as follows: (1) CDWA appealed the court’s denial of its claim that DWR improperly assumed the Agreement and the Amendment remained in place as part of its project description and that the EIR failed to consider a “no project” alternative that assumed the Amendment was not operative; (2) CBD appealed the court’s denial of its motion for attorneys fees for the failure to file within the 30-day statute of limitations under validation causes of action; and (3) CFS appealed the court’s denial of its claim regarding the inadequacy of the EIR’s analysis of water supply impacts resulting from crop conversions from annual crops to permanent crops. The Appellate Court affirmed each of the trial court’s decisions:

  • As to CDWA, the Court reasoned that under Public Resources Code section 21168.9 the trial court had the discretion to leave the contracts in place while CEQA review was undertaken. Thus, it concluded that the trial court’s reasoning that the unusual nature of a previous Settlement Agreement and its express intent to allow DWR to “study and consider the impacts of the changes in SWP operations resulting from implementation of the Amendment” provided sufficient support for leaving the contracts in place. As a result, the Court also reasoned that the “no project” alternative sought by CDWA was properly rejected because it failed to meet the project’s primary objective which was the negotiated compromise of claims relating to the prior operation of the SWP.
  • As to CBD, the Court held that the trial court properly rejected the motion for attorneys fees despite its success on the merits under CEQA because it was untimely. It reasoned that because the claims involved both CEQA claims, which allow for a 60-day deadline for motions for attorneys fees, and a reverse validation claim, which allows for a 30-day deadline for motions for attorneys fees, the shorter validation claim deadline applies as a result of the final judgment rule.
  • As to CFS, the Court held that the EIR’s analysis of crop conversion and findings that such conversions were not caused by the project was sufficiently supported by substantial evidence. It reasoned that the EIR analyzed crop conversion trends both inside the project boundary and outside the area and found the trends were not unique to the project area and were most likely the result of higher commodity prices, not water supply reliability.

Sierra Watch v. County of Placer, (Aug. 24, 2021) 2021 Cal.App.LEXIS 783.

In a partially published opinion, the Third District Court of Appeal reversed the trial court’s decision rejecting petitioner Sierra Watch’s claims challenging the County of Placer’s EIR in support of the development of a resort project on about 94 acres in Olympic Valley, the site of the 1960 Winter Olympics. The project would include an 85-acre parcel for up to 850 lodging units, nearly 300,000 square feet of commercial space, and over 3,000 parking spaces called the Village, and an 8.8-acre parcel to house up to 300 employees called the East Parcel. The trial court rejected all of petitioner’s claims, and petitioner appealed. In the published portion of the decision, the appellate court considered the adequacy of the description of the environmental setting, and the adequacy of the analysis as to construction noise impacts.

Regarding the environmental setting, the court held that the description failed to meaningfully acknowledge the project’s location and potential effects on Lake Tahoe, particularly as to water quality and air quality impacts. As for water quality, the court reasoned that the failure to sufficiently acknowledge the project’s regional relationship with Lake Tahoe led to the failure to adequately consider the regional VMT effects on lake clarity due to tailpipe emissions and crushed abrasives which were only acknowledged after the FEIR was released and six days prior to the County’s approval of the project. Similarly, the court held that the EIR was defective because it failed to adequately disclose its analytic route to its air quality impact conclusions. It reasoned that the County’s discussion of Lake Tahoe Basin air quality impacts from VMT was confusing because it both considered various Tahoe Regional Planning Agency thresholds used in prior EIRs, concluding that the project would exceed the project-level threshold, but no the cumulative threshold for the Basin, then “simply declared that TRPA’s thresholds were inapplicable because the project is not located in the basin.” It further explained that despite this conclusion, the EIR never explained what standard did apply, nor provided any clear conclusion as to the significance of the impact from project traffic on Lake Tahoe and the basin, and it only belatedly acknowledged its underestimation of cumulative VMT in the basin that failed to account for additional VMT from other anticipated projects in the same acknowledgement six days prior to project approval.

Regarding construction noise, the court rejected petitioner’s claims regarding the County’s failure to disclose the duration of construction of the Village, reasoning that the EIR adequately explained the reasons why specific details were not possible because the Village construction was expected to occur over 25 years, there was no specific plan as to where buildings would be located, and that construction was likely to be sporadic, to conclude that an EIR need not speculate as to project impacts, citing CEQA Guidelines section 15145. The court did, however, agree with petitioner’s claim that the EIR erroneously limited its impact analysis on nearby sensitive receptors located within 50 feet of expected construction activity. It reasoned that though the EIR thoroughly evaluated those impacts at 50 feet, the failure to consider any sensitive receptors located further than 50 feet was arbitrary and unsupported. Finally, the court also agreed with petitioner’s claim that certain noise mitigation measures was inadequate because it failed to include adequate performance standards. It reasoned that a requirement that “operations and techniques shall be replaced with quieter procedures…where feasible” was nothing more than “tell[ing] contractors to be quieter than normal, when they can” leaving the determination of which procedures can be changed and they can be made quieter to a later time without any standards or instructions.

Save Our Access v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8.

Petitioner filed suit challenging the adequacy of an EIR prepared by the defendant Watershed Conservation Authority (“Authority”) to “expand recreational access, increase investments in restoring landscapes, and protect resources important to the history and heritage of the United States” within a 198-acre portion of the San Gabriel Mountains National Monument near the East Fork of the San Gabriel River. More specifically at issue in the litigation, the project proposed to make parking improvements, including expanding the paved parking areas numbering 48 spaces in total to be able to accommodate a total of 270 cars and three buses, and eliminate undesignated parking areas along the shoulders and other wide spots along the side of the roads. Defendant estimated this would represent a reduction in total parking spaces from an estimated 417 available parking spaces to 273. Petitioner claimed the baseline number was 473. Despite the difference in spaces, the Authority had argued that the impacts of reduced parking were minimal because visitors would likely seek out one of the other eight recreational facilities available within 25 miles of the project site. The trial found the EIR failed to support its parking baseline determination with substantial evidence, thus undermining its conclusion that the direct or secondary impacts due to the reduction in parking were insignificant, but rejected all of petitioner’s other claims. Both parties cross-appealed. The appellate reversed as to the parking-related claims.

Citing San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656, the appellate court held that inadequate parking is primarily a social impact and that petitioner failed to adequately identify substantial evidence of any potential secondary effects on the environment resulting from defendant’s failure to adequately disclose “baseline parking conditions.” It reasoned that though both parties failed to support their baseline figures with substantial evidence, the minimal difference between 417 spaces and 473 spaces as compared to the large number of major recreational facilities available in the area made it “irrational to conclude there would be any significant deterioration of the other recreation facilities.”

The court also rejected petitioner’s claim that the EIR violated CEQA when it only considered the “no project” alternative. It reasoned that the alternatives proposed by the public were properly rejected because they would not feasibly accomplish most of the basic project objectives, and that the analysis of only a “no project” is permissible under the facts of this case as stated in San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.

Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444.

In a partially published decision, the First District Court of Appeal reaffirmed prior rulings regarding administrative exhaustion under CEQA, and deference to an agency’s general plan consistency determinations. As to exhaustion, the court, citing Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, held that Petitioner failed to meet its burden of showing compliance with the County’s local procedures which required Petitioners “to show it timely filed a notice of intent to appeal and timely submitted an appeal packet which specifically identified the grounds it raise[d] in this court action.” It reasoned that because Petitioners have the burden to demonstrate exhaustion, “a list of string-cites to the administrative record without explanation as to how each supports the assertions the public agency was ‘fairly appraised’ of the asserted noncompliance with CEQA, is not sufficient.” As for challenges to the County’s general plan consistency determination, the appellate court pointed to several instances in the record where County decisionmakers evaluated and considered potential project inconsistencies with the general plan and ultimately concluded that the project was consistent. Thus, it found that the Board’s decision was entitled to substantial deference.

Santa Clara Valley Water Dist. v. San Francisco Bay Reg’l Water Quality Control Bd. (2020) 59 Cal.App.5th 199.

Petitioner, Santa Clara Valley Water District (“District”), filed suit challenging the San Francisco Bay Regional Water Quality Board’s (the “Board”) addition of new mitigation requirements when issuing an order adopting Waste Discharge Requirements (“WDRs”) for the District’s flood control project. The District argued the Board’s action was unlawful, because the District had already completed CEQA review with its approval, and the Board had been an active participant as a responsible agency. As a responsible agency, the District argued CEQA Guidelines section 15096, subdivision (e), required the Board to either accept the adequacy of the EIR as-is, or take one of three actions: (i) file suit challenging the EIR, (ii) prepare a subsequent EIR, if allowed under CEQA Guidelines section 15162, or (iii) assume the lead agency role of the original EIR. The First District Court of Appeal upheld the Board’s imposition of additional mitigation requirements under the WDR. It reasoned that despite the limitations imposed on responsible agencies under CEQA Guidelines section 15096, the Savings Clause in Public Resources Code section 21174 (“No provision of this division is a limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer….”), supported its conclusion that “nothing in CEQA, including CEQA Guidelines section 15096, subdivision (e), or the statutes on which it is based, bars the Board from fulfilling its independent obligation to enforce the Porter-Cologne Act.”

Subsequent Review

California Coastkeeper Alliance v. State Lands Commission (2021) 64 Cal.App.5th 36.

In a case certified for partial publication, Petitioner, California Coastkeeper Alliance (“Coastkeeper”), filed suit challenging the State Lands Commission’s (the “Commission”) adoption of a Supplemental EIR as a responsible agency in support of the proposed changes to the Poseidon desalination plant located in Huntington Beach as part of Poseidon’s proposed lease modification with the Commission. Specifically, Coastkeeper argued the Commission was required to take on the lead agency status and perform the related obligations that status would impose. The trial court denied Coastkeeper’s claims and Coastkeeper appealed. The appellate court affirmed.

To address the question posed by Coastkeeper’s lead agency status claim, the court first looked to the legal adequacy of the Commission’s decision to prepare a Supplemental EIR, rather than a Subsequent EIR. Relying on Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, the appellate court found that the Commission properly relied on substantial evidence to conclude: (1) the prior environmental documents still retained relevance in light of the proposed project changes through the lease modifications; (2) the prior documents continue to have informational value; and (3) that the minor changes to the project would necessitate “only minor additions or changes…to make the previous EIR adequately apply to the changed situation.”

Next, the court addressed Coastkeeper’s claim that CEQA required the Commission to take on lead agency status to do so. Coastkeeper relied on CEQA Guidelines section 15052, which describes the situations where a responsible agency should assume the role of lead agency, to contend that the Commission was required to assume lead agency status to adopt the Supplemental EIR. Coastkeeper argued that Public Resources Code section 21166 establishes the same test for when “no subsequent or supplemental environmental impact report” is required, and thus, whether a subsequent or supplemental EIR is ultimately prepared the element at issue in CEQA Guidelines section 15052(a)(2)(A) (“A subsequent EIR is required pursuant to Section 15162;”) has been met. The court rejected the claim and held that this requirement is only applicable to the preparation of subsequent EIRs. It reasoned that the plain language in CEQA Guidelines section 15052(a)(2)(A) (“A subsequent EIR is required pursuant to Section 15162;”) expressly distinguished between subsequent EIRs and supplemental EIRs because subsequent EIRs fall under section 15162, while supplemental EIRs fall under section 15163.

CEQA Litigation

Pacific Merchant Shipping Assn. v. Newsom (2021) 67 Cal.App.5th 711.

In 2018, the Legislature adopted Assembly Bill 734 (“AB 734”), a special statute similar in nature to Assembly Bill 900 (“AB 900”) adopted in 2011 for expedited judicial review of “Environmental Leadership Development Projects” under CEQA. AB 900 has been used over the years to benefit certain very large, environmentally beneficial, jobs producing projects, including mixed-use developments with a major sports venue component. Under AB 900, the Governor was required to certify the project’s compliance with a laundry list of requirements by January 1, 2020, and was set to fully expire on January 1, 2021. AB 734 was designed to assist the development of a new Oakland A’s stadium, along with mixed-use, including residential, retail, and commercial uses at Howard Terminal (“Howard Terminal Project”). AB 734 expressly relied on the Governor’s AB 900 guidelines for the “implementation” of AB 734 “to the extent the guidelines are applicable and do not conflict with specific requirements” of AB 734. Pursuant to the statute’s requirements, the A’s submitted an application for certification in March 2019, In August 2020, the California Air Resources Board made its required finding that the project would meet strict greenhouse gas emission reduction targets identified in AB 734, and Governor Newsom certified the Howard Terminal project in February 2021. Petitioners filed suit alleging that the Governor’s certification was invalid because under AB 734 his authority to certify expired along with AB 900 on January 1, 2020. The trial court rejected petitioners’ claims and petitioners appealed.

The appellate court affirmed. The court first found that whether AB 734 incorporated AB 900’s deadlines was ambiguous, thus requiring the court to consider the legislative history to determine the Legislature’s intent. The Court noted the early records which indicated that AB 734’s author specifically chose a standalone bill because the Project would be unable to meet the AB 900 deadlines, and the Legislature, thus, had to consider whether to extend AB 900’s deadlines or leave AB 734 as a standalone bill. Having reviewed the legislative record, it reasoned that leaving the statute as a standalone bill meant the Legislature did not intend to incorporate AB 900’s deadlines. It further reasoned that the lack of deadlines in AB 734 provided additional support for this conclusion, and that incorporating AB 900’s deadlines would undermine the purpose of AB 734, given the known the project was unlikely to meet those deadlines

Save Lafayette Trees v. East Bay Regional Park District (2021) 66 Cal.App.5th 21.

On March 21, 2017, the East Bay Regional Park District (the “District”) Board of Directors (the “Board”), held a public hearing and approved the acceptance of funding from PG&E for “environmental restoration and maintenance at Briones Regional Park and Lafayette-Moraga Regional Trail.” By March 23, 2017, representatives of the District and PG&E had fully executed a Memorandum of Understanding regarding the “implementation of the Community Pipeline Safety Initiative on [District] property in Contra Costa County” with the approved funding. The District did not file a Notice of Exemption at that time, but did file one on June 27, 2017. Petitioner later entered into a tolling agreement with the District on July 31, 2017, for 60 days, but PG&E was not a party to that agreement. On September 29, 2017, Petitioner filed suit. PG&E filed a demurrer and the trial court sustained without leave to amend holding the claims were time-barred.

The First District Court of Appeal affirmed. It held that Petitioner’s lawsuit failed to meet either the 35-day or 180-day statute of limitations for filing CEQA claims. First, it reasoned that because PG&E was a “necessary party” within the meaning of Code of Civil Procedure section 389, subdivision (a), Petitioner’s tolling agreement with the District was not binding on PG&E because they were not a signatory. Second, Petitioner claimed that the statute of limitations did not run until several weeks after the Board’s action on March 21, 2017, because neither the online agenda notice nor “the accompanying description of the Board Resolution in question mentioned or even implied that any trees would be removed,” and they did not become aware of the tree removals until several weeks later. The court rejected the claim and set the statute of limitations period on March 21, 2017, reasoning that because the staff report for the hearing stated that “245 trees are located too close to the pipeline and will be removed for safety reasons,” Petitioner had constructive notice on that date. As a result, it held that the claims were filed 11 days too late.

Dunning v. Clews (2021) 64 Cal.App.5th 156.

In an unusual case involving a post-CEQA litigation malicious prosecution lawsuit, the real-party-in-interest in the successful CEQA defense (the “Academy”) sought damages against petitioners and their attorneys for their purported “meritless lawsuit” that challenged the County’s adoption of a mitigated negative declaration (“MND”) for a 75-student school proposed to be located adjacent to petitioners’ horse ranch and riding academy. The CEQA claims challenging the MND included potentially significant impacts from wildfire risks, to recreational resources, traffic, and noise, which was supported by a noise study that established that noise generated from the school was expected to be substantially less than ambient conditions and, thus, not a significant impact. (See Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.) Petitioners and their attorneys filed an anti-SLAPP motion to strike the malicious prosecution complaint, and the trial court denied the motion finding that the Academy established a probability of prevailing in its malicious prosecution claim. Petitioners and their attorney defendants appealed.

The appellate court upheld the trial court decision as to the Petitioners, but reversed as to their attorneys. As to the first prong in a malicious prosecution analysis, the court held that the Academy met its burden by establishing that Petitioners and their attorneys did not have probable cause for pursuing its claims of project noise impacts. It reasoned that Petitioners evidence concerned the potential fiscal and operational impacts on the horse ranch and riding academy and not the potential noise impacts on the environment, particularly in light of the noise study prepared by the Academy. As to the second prong requiring the establishment of malice, the court held malice was established as to the Petitioners, but not as to their attorneys. As to Petitioners, it reasoned that bad faith settlement negotiations, and a history of harassment against previous owners of the Academy property demonstrated a prima facie showing of malice. However, as to their attorneys, the court refused to infer the improper motives of their clients due to a lack of substantiating evidence supporting the theory.

Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.

In a case that hinged on the fine line between issue exhaustion and administrative exhaustion, Plaintiffs filed suit challenging the San Francisco (“City”) Historic Preservation Commission’s (“HPC”) decision to authorize the removal of an 1894 monument called “Early Days” and place it in storage, finding the removal was categorically exempt from the California Environmental Quality Act (“CEQA”). Plaintiffs challenged the decision on several grounds, including CEQA. At the trial court, the City filed for demurrer arguing the Plaintiffs had filed to exhaust its administrative remedies when they only appealed the HPC decision to the City’s Board of Appeals, which had no jurisdiction under CEQA, and not to the Board of Supervisors. The trial court granted the motion without leave to amend and Plaintiffs appealed.

The appellate court affirmed. Plaintiffs argued that the exhaustion requirement was excused when the HPC’s hearing notice failed to mention CEQA. Public Resources Code section 21177 requires litigants to raise CEQA issues during the administrative process before filing suit, but that requirement is waived where notice of the hearing is defective. The Court of Appeal agreed the notice was defective, finding that the City failed to provide adequate notice of the HPC hearing as to CEQA, and Plaintiffs’ obligation under section 21177 was waived. However, the Court, relying on Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, drew the distinction between exhaustion of the CEQA issues and the judicially created doctrine requiring litigants to exhaust all administrative procedural options available. Here, the Court held that Plaintiffs’ did not fully exhaust their administrative remedies. It reasoned that an appeal to the Board of Supervisors was required because: (i) Plaintiffs had actual notice of the CEQA determination and raised it at the Board of Appeals hearing; and (ii) the Board of Supervisors was the final arbiter over CEQA determinations.

Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783.

Petitioners challenged the city’s certification of an environmental impact report (“EIR”) for a project to rezone fallow farmland to allow light industrial uses. Petitioners had requested from staff to receive notice of all project including hearing notices and the notice of determination (“NOD”) for the EIR. During the processing of the application, the original applicant sold the property to Microsoft, which took over as the applicant. The EIR was ultimately certified, the project was approved, and the city issued an NOD and sent a copy to Petitioners, though it incorrectly identified the prior owner as the real party in interest. Five days later, a second corrected NOD was properly filed, but no copy was provided to petitioners. Petitioners timely filed suit, naming the prior owner as the real party in interest rather than Microsoft. About two weeks after the 30-day statute of limitations had run, the original owners attorney notified Petitioners that Microsoft was the actual real party and a second NOD had been filed. Approximately a month later, Petitioners filed an amended petition naming Microsoft, more than 70 days after the second NOD was filed. City and Microsoft filed a demurrer arguing the claims were time-barred. The trial court granted the demurrer and dismissed the suit with prejudice. Petitioners appealed.

The appellate court affirmed. Petitioners argued that the city’s failure to provide a copy of the second notice rendered the filing defective which would extend the statute of limitations to 180 days. The Court held that though the city had failed to comply with its obligation to provide notice to Petitioners as required under CEQA, Public Resources Code section 21167, subdivision (f), only extends the statute of limitations when an NOD was materially defective which was not the case, thus, the 30-day deadline was applicable here. Petitioners also argued that the City’s filing of the NOD did not provide actual or constructive notice when it failed to provide a copy to a Petitioner that properly requested it. The Court rejected this argument as well, noting that Petitioners had attended the hearings where Microsoft was properly identified as the real applicant and were, therefore, provided actual notice.

Petitioners then sought to alternatively apply the relation back doctrine which would allow the replacement of a Doe defendant named in the petition to be replaced with Microsoft, but the Court again rejected that option. It reasoned that the relation back doctrine requires Petitioners to be genuinely ignorant of the identity of the defendant, which was not the case here because the second NOD, by law, provided Petitioners with notice of the defendant’s identity. Furthermore, the Court reasoned that Petitioners had actual notice from attending the hearings, and the had delayed filing the amended petition for a period of time longer than the initial limitations period after being notified of the second NOD. Finally, Petitioners argued that Court should apply equitable estoppel principles to allow for the untimely filing due to the failures of the City in providing notice to Petitioners, but the Court rejected that claim as well due to the constructive notice of the properly filed second NOD.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Welcome to Abbott & Kindermann, Inc.’s September Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.

  1. PREVIOUS MONTH’S UPDATE

To read the 2021 Mid-Year Cumulative Environmental Action News Update, click here:

https://blog.aklandlaw.com/2021/09/uncategorized/mid-year-cumulative-environmental-action-news-update/

  1. SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE

A. WATER RIGHTS AND SUPPLY

  1. State Water Resources Control Board Issues Curtailment Orders Following Drought Conditions In The State.

On April 21, 2021, California Governor Gavin Newsom issued a drought emergency proclamation to include a total of 41 counties that make up 30% of California’s population. On May 10, 2021, Newsom added Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed counties to the list of counties under a drought state of emergency. The proclamation directed the State Water Board (“Board”) to consider modifying requirements for reservoir releases and diversion limitations to conserve water upstream later in the year to maintain water supply, improve water quality and protect cold water pools for salmon and steelhead. The state of emergency also enables flexibilities in regulatory requirements and procurement processes to mitigate drought impacts and directs state water officials to expedite the review and processing of voluntary transfers of water from one water right holder to another. The Board has now issued multiple emergency curtailment orders pursuant to the Governor’s emergency proclamation.

For more information see:

https://www.latimes.com/california/story/2021-05-10/drought-emergency-now-extends-to-4-1-california-counties-newsom-says

https://www.gov.ca.gov/2021/05/10/governor-newsom-expands-drought-emergency-to-klamath-river-sacramento-san-joaquin-delta-and-tulare-lake-watershed-counties/

https://www.gov.ca.gov/wp-content/uploads/2021/05/5.10.2021-Drought-Proclamation.pdf

B. WETLANDS

  1. Court Reinstates Pre-2015 Interpretation Of The Clean Water Act’s Definition Of “Waters Of The United States.”

In Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, the U.S. District Court for the District of Arizona halted implementation of the recently created Navigable Waters Protection Rule (“NWPR”). (Pasqua Yaqui Tribe v. United States EPA (2021) U.S.Dist.LEXIS 163921.) The NWPR was issued in 2020 and changed the interpretation of the definition of “waters of the United States” under the Clean Water Act (“CWA”). This departs from a previous U.S. District Court case where the court remanded the rule to the agencies but allowed it to stay in place. Now, agencies must follow the earlier interpretation of waters of the United States. Under this regime:

  • “Waters of the United States” includes ephemeral streams, which the 2020 rule had removed from jurisdiction.
  • The agencies will apply the “significant nexus” test to determine on a fact-specific basis whether wetlands and tributaries are “waters of the United States.” The 2020 rule had limited jurisdiction for wetlands to those with a direct surface water connection to a “water of the United States.” The significant nexus standard allows the agencies to determine whether a wetland or tributary is jurisdictional based on a broader range of potential connections or impacts to downstream or adjacent waters.

https://www.epa.gov/wotus/current-implementation-waters-united-states

https://earthjustice.org/sites/default/files/files/order_remand_and_vacate.pdf

C. AIR QUALITY AND CLIMATE CHANGE

  1. U.S. Environmental Protection Agency Issues Regulation Reducing Use Of Hydrofluorocarbons.

The U.S. Environmental Protection Agency (“EPA”) issued a final rule to address hydrofluorocarbons (“HFC”), a chemical that contributes to climate change. This is the first Biden administration action to directly limit greenhouse gases and is not anticipated to be the last. The regulation would reduce HFCs by 85% over the next 15 years. This will proceed incrementally, starting with a 10% reduction in 2022. The rule will address HFCs in three ways: (1) phasing down production and consumption, (2) maximizing reclamation and minimizing releases from equipment, and (3) facilitating the transition to next-generation technologies through sector-based restrictions. The final rule will establish an allowance allocation and trading program that works like a cap-and-trade program. Surprisingly, industry executives support the measure because it will help domestic manufacturers. Other countries are moving away from HFCs and industry executives see the rule as helping to put all manufacturers on a level playing field and helping support alternatives.

For more information see:

https://www.epa.gov/climate-hfcs-reduction/final-rule-phasedown-hydrofluorocarbons-establishing-allowance-allocation

https://www.epa.gov/system/files/documents/2021-09/hfc-allocation-rule-nprm-fact-sheet-finalrule.pdf

https://www.nytimes.com/2021/09/23/us/politics/epa-hfcs-climate-change.html

D. RENEWABLE ENERGY

  1. U.S. House of Representatives Committee Approved $12 Billion To Help Electrify The Federal Government’s Vehicle Fleet.

The House Committee on Oversight and Reform voted to approve $12 billion to electrify the federal government’s vehicle fleet, including funding for the U.S. Postal Service fleet and to build charging station infrastructure across the nation. This funding will be considered as part of the $3.5 trillion budget reconciliation plan proposed by Democrats. According to a memo released by the committee days before the vote, the funding includes $5 billion that would go toward electrifying the General Services Administration fleet and $2.4 billion that would be provided to USPS. The USPS money would be split in two, with $1.2 billion going toward electric vehicle purchases and the other half going toward support infrastructure. The goal of this legislation is to move the country closer to having a fully electric federal vehicle fleet.

For more information see:

https://www.law360.com/articles/1418823/house-committee-takes-step-to-electrify-us-vehicle-fleet?copied=1

https://oversight.house.gov/news/press-releases/oversight-committee-approves-legislation-to-electrify-government-vehicle-fleets

E. HAZARDOUS MATERIALS AND REMEDIATION

  1. Senate Bipartisan Infrastructure Bill Would Reinstate Tax To Fund Cleanups At Superfund Sites.

The Senate Bipartisan Infrastructure Bill contains a provision that would reinstate an excise tax on chemicals that will fund Superfund site cleanup. This tax would be on chemicals, including benzene, arsenic, and mercury, and possibly on crude oil. The tax expired in 1995 and sends proceeds to a trust fund for cleanups. The provision is slightly different from the previous tax and expands the reach of the tax by applying it to any imported substance in which the taxable chemicals constitute more than 20% of the weight or more than 20% of the value of the imported substance, as opposed to the original threshold of 50%. Superfund sites are cleaned pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) which is enforced by the U.S. Environmental Protection Agency (“EPA”). Funds for cleanups under CERCLA have been inadequate to address all superfund sites. The EPA plans to use any additional money for the Superfund program to (1) eliminate the backlog of remedial projects awaiting funding; (2) accelerate or complete work at ongoing cleanup projects; (3) begin cleanup of additional Superfund projects that are currently in various phases of preconstruction and planning; and (4) ensure those most directly affected by contamination are involved in the cleanup process. If passed, the tax would be imposed until the end of 2031.

For more information see:

https://www.law360.com/energy/articles/1423801/superfund-tax-would-boost-cleanups-at-polluted-sites?nl_pk=174dfb7b-ac16-4f14-9642-69d73ac0d847&utm_source=newsletter&utm_medium=email&utm_campaign=energy

F. MINING, OIL, AND GAS

  1. PennEast Pipeline Co., LLC v. New Jersey (2021) ___U.S.___ [141 S.Ct. 2244, 28 Fla.L.Weekly Fed.S. 1025].

In PennEast Pipeline Co., LLC v. New Jersey, the Supreme Court held that the Natural Gas Act authorizes Federal Energy Regulatory Commission (“FERC”) certificate holders to condemn all necessary rights-of-way, whether owned by private parties or States. The Supreme Court granted certiorari to determine whether the Natural Gas Act authorizes FERC to condemn land in which a State claims an interest. In a 5-4 decision, the court held that section 717f(h) of the Natural Gas Act delegated federal eminent domain power to private parties and therefore those parties could initiate condemnation proceedings, even against state-owned property. The majority reasoned that this decision does not offend state sovereignty because, at the founding of the United States, the States consented to the exercise of federal eminent domain power.

  1. Los Angeles County Board of Supervisors Voted To Ban New Oil Wells.

The Los Angeles County Board of Supervisors (“Board”) voted to ban new oil wells and evaluate the status of existing ones while changing their zoning to nonconforming. The Board pointed to environmental justice reasons for banning new wells. In LA County, 73% of residents who live near an oil well are people of color. State law precludes existing oil wells from being shut down until the owners recuperate the cost of drilling. By labeling existing wells as nonconforming uses, the county will be allowed to revoke drilling permits. Opponents of the move say that all the county is doing is choosing imported oil over the jobs of local workers. However, the Board passed another motion to help fossil fuel workers find new jobs.

For more information see:

https://www.latimes.com/california/story/2021-09-16/l-a-county-takes-first-steps-to-end-oil-drilling

G. FOREST RESOURCES

  1. California Legislature Approves Controlled Burn Bill.

In early September, the California Legislature passed SB 332, a controlled burn bill. This bill reduces potential liability for fire suppression costs that are incurred fighting a fire if those fires are sparked by controlled burns intended to reduce wildfire hazard. This law works to promote controlled burns by reducing liability for those performing controlled burns. Under state law, people are liable for fire suppression costs if they negligently set a fire that escapes and grows. SB 332 changes the liability threshold to gross negligence for those performing controlled burns. The bill also exempts cultural fire practitioners from specific requirements needed to meet baseline liability standards when they have written permission from a landowner or approval of a Native American tribe to burn. The legislature hopes to promote the use of controlled burns to reduce the buildup of fuel for fires. SB 332 received unanimous, bipartisan support.

For more information see:

https://www.law360.com/articles/1418956/calif-legislature-approves-controlled-burn-bill

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB332

H. CULTURAL RESOURCES MANAGEMENT

  1. City of L.A. v. Dickson (9th Cir. July 8, 2021, No. 19-71581) 2021 U.S. App. LEXIS 20248.

In City of L.A. v. Dickson, the Ninth Circuit Court of Appeals held that the Federal Aviation Administration’s (“FAA”) application of a categorical exemption to the National Historic Preservation Act (“NHPA”) was arbitrary and capricious because the FAA failed to consult with the City of Los Angeles or Culver City. The court stated that even if the FAA properly determined that there would be no adverse impact on the historic properties, the FAA violated the NHPA by failing to consult. Although the court referred to FAA’s failure to consult as a “serious error,” the court decided not to vacate the decision because of the disruptive consequences of doing so. However, the FAA must still undertake a proper NHPA consultation with the City of Los Angeles or Culver City.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Welcome to Abbott & Kindermann, Inc.’s Mid-Year Cumulative Environmental Action News Update. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021. Bolded titles indicate new updates.

  1. PREVIOUS UPDATES

To read the June 2021 Environmental Action News post, click here:

https://blog.aklandlaw.com/2021/07/articles/ak-news/june-environmental-action-news/

To read the May 2021 Environmental Action News post, click here:

https://blog.aklandlaw.com/2021/06/articles/ak-news/may-environmental-action-news/

To read the March 2021 Environmental Action News post, click here:

https://blog.aklandlaw.com/2021/03/articles/ak-news/march-environmental-action-news/

  1. SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE

A. WATER RIGHTS AND SUPPLY

  1. Antelope Valley Groundwater Cases (2021) 63 Cal.App.5th 17 – California Appellate Court Upheld Use Of Equitable Apportionment Principles In Approving A Physical Solution To An Overdrafted Basin.

In Antelope Valley Groundwater Cases, the appellate court found that adopting a physical solution to an overdrafted groundwater basin comports with California water rights priorities because the physical solution comports with California law governing water priorities and the constitutional “reasonable and beneficial use” requirement. This case is part of a comprehensive groundwater adjudication involving roughly 70,000 landowners in the overdrafted Antelope Valley Groundwater Basin (“basin”). A vast majority of parties settled their competing groundwater rights claims and agreed to support a proposed plan (“Physical Solution”) to bring the basin into hydrological balance with the available “native safe yield” (“NSY”). In this case, the plaintiff Tapia was not one of the parties to the settlement agreement. Before approving the Physical Solution, the trial court conducted a separate trial on Tapia’s unsettled claims and defenses and found that the public water suppliers had established prescriptive rights in the NSY as to Tapia, and that Tapia had not adequately shown a basis for his requested allocation of water under the Physical Solution. In a separate trial, the court approved the Physical Solution.

On appeal, Tapia raised three claims: (1) the Physical Solution violates California water rights priorities because it allocates portions of the NSY to the public water suppliers (“PWS”) while denying Tapia his claimed allocation of that NSY; (2) the Physical Solution is inequitable because overlying owners with demonstrable existing pumping were allocated proportionate shares of the remaining NSY while Tapia, despite similarly showing existing pumping, did not receive a proportionate share; and (3) the Physical Solution violates the constitutional requirement that available water be applied to reasonable and beneficial uses. The appellate court found that substantial evidence supported the trial court’s decision as to the prescriptive rights because the trial court considered Tapia’s evidence but made a credibility determination based upon other evidence that Tapia’s claimed water use far exceeded the amount required on the land under cultivation. Therefore, to the extent the PWS’s uses of the groundwater had ripened into a prescriptive interest in the available groundwater, the PWS’s water use was transformed from an appropriative use into rights entitled to equivalent priority with the rights of overliers. As to Tapia’s second claim, the appellate court held that when apportioning water in an overdrafted basin among correlative rights holders, a court may employ equitable apportionment principles to the extent necessary to reach a practical apportionment of the available water among parties holding equivalent priorities. Finally, the appellate court held that when apportioning water in an overdrafted basin among correlative rights holders, a court may employ equitable apportionment principles to the extent necessary to reach a practical apportionment of the available water among parties holding equivalent priorities.

  1. State Water Resources Control Board Issued Curtailment Orders To All 861 Water Right Holders In The Upper Russian River.

In response to the water level in Lake Mendocino dropping below minimum storage levels, the State Water Resources Control Board (“SWRCB” or “Board”) issued curtailment orders to all 861 water right holders in the Upper Russian River. The orders make it illegal to draw or divert water from the Upper Russian River, except as needed to ensure human health and safety. SWRCB also released an analysis of the Lower Russian River demonstrating that approximately 222 right holders need to be curtailed to meet demands on the river and that the Board anticipates issuing orders to these right holders next week. These orders were made possible after the Board adopted an emergency drought regulation on June 15 that authorized curtailments in the Upper Russian River if Lake Mendocino did not maintain minimum storage requirements, and in the Lower Russian River if flows were not enough to satisfy all water rights claims. SWRCB stated that if depletion of Lake Mendocino continues at this rate, the 20,000 acre-feet, end-of-season minimum storage level could be reached almost six weeks ahead of schedule.

For more information see:

https://www.waterboards.ca.gov/press_room/press_releases/2021/pr08022021_russian_river_curtailments.pdf

https://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/

  1. State Water Resources Control Board Approves Emergency Curtailment Measures For The Delta Watershed Following Acute Water Shortages.

On August 3, 2021, the California State Water Resources Control Board (“SWRCB” or “Board”) approved an emergency curtailment regulation for the Delta watershed. The regulation aims to preserve stored water to protect drinking water supplies, prevent salinity intrusion and algal blooms, and minimize impacts to fisheries and the environment. Curtailment orders could be sent to approximately 5,700 of the 6,600 water right holders in the Delta watershed. The Board also warns that should conditions worsen, the remainder of the water right holders could see curtailment orders as well. SWRCB estimates that without the regulation, the drinking water supply for 25 million Californians and the irrigation supply for over 3 million acres of farmland could be at significant risk should the drought continue into next year. Before the emergency regulation becomes effective and curtailment orders can be issued, the regulation must be approved by the Office of Administrative Law (“OAL”) and filed with the Secretary of State. Government Code section 11346.1(a)(2) requires that SWRCB wait at least five working days after providing the notice of proposed emergency action before submitting the proposed action to the OAL. Once OAL receives the proposed rule their website will be updated with directions for submitting comments.

For more information see:

https://www.waterboards.ca.gov/press_room/press_releases/2021/pr08042021_delta_emergency_regulation.pdf

https://oal.ca.gov/emergency_regulations/emergency_regulations_under_review/

  1. Antelope Valley Groundwater Cases (2021) 62 Cal.App.5th 992 – California Appellate Court Limited Groundwater Pumping In An Overdrafted Basin In Antelope Valley Groundwater Cases.

In Antelope Valley Groundwater Cases, the Fifth District Court of Appeals for California held that where a court must adopt a physical solution and allocate a limited water supply that is insufficient to meet the needs of all water right holders in an overdrafted basin, a court may equitably allocate the available water resources among competing claimants with equivalent priorities. The case, which started when one landowner filed suit and claimed superior groundwater rights to the overdrafted Antelope Valley Groundwater Basin (“basin”), became a comprehensive groundwater adjudication involving roughly 70,000 landowners in the Antelope Valley. Two separate classes of landowners are included in the suit as well as the United States. One class, referred to as the “Non-Pumper Class,” was formed by the court to represent the interests of a large group of persons who owned overlying land in the Antelope Valley Adjudication Area (“AVAA”) but who had not pumped water from the aquifer for any purposes. Another smaller class, the “Small Pumper Class,” was formed by the court to represent the interests of another large group of overlying landowners who historically had pumped not more than 25 acre-feet per year from the aquifer during the relevant period.

In this case, the appellate court affirmed that the trial court’s physical solution equitably allocated the native safe yield. The court explained that a physical solution can “subordinate” overlying rights of non-pumpers to overlying rights of landowners who are currently pumping but cannot “entirely extinguish unexercised” water rights. The court thusly allowed Non-Pumper Class members to pump groundwater in the future without paying any assessments only if the pumping is de minimis and limited to domestic use for a single household. The court also affirmed other established principles concerning water right and physical solution: (i) allocation of native safe yield can be permanent, provided that subsequent unreasonable use may be challenged; (ii) provisions permitting transfer or carrying over of water allocations do not violate the doctrine of reasonable and beneficial use; and (iii) while courts should consider a physical solution regardless of whether all parties agree to it, courts need not consider every proffered alternative physical solution. An appeal of this decision has been filed by one landowner who had pumped groundwater but was not allocated a share of the physical solution. The trial court rejected evidence of his claimed amount of pumping and reasonableness of his beneficial use and the appellate court affirmed.

https://www.courts.ca.gov/opinions/documents/F082469.PDF

  1. Sweeney v. California Regional Water Quality Control Board (2021) 61 Cal.App.5th. 1.

In September 2020, U.S. District Court Judge Kimberly Mueller held that defendants John Sweeney and Point Buckler Club (collectively, “Sweeney”) violated sections 301 and 404 of the Clean Water Act (“CWA”) for unlawfully constructing a levee and other structures on Point Buckner Island in the San Francisco Bay Delta (United States v. Sweeney, 2020 U.S. Dist. LEXIS 159417 (E.D. Cal. September 1, 2020). Defendants constructed a levee, multiple structures, and other activities that added pollutants to the Delta. The defendants’ actions violated multiple parts of the CWA, including unlawful dredged or fill material, point source discharge, and disruption of Waters of the United States (“WOTUS”). As a result of defendants’ actions, the United States estimated nearly 30 acres of tidal waters and wetlands were lost affecting the Delta’s chemical, physical, and biological functions. Plaintiffs requested declaratory relief while defendants denied liability and offered several affirmative defenses.

The Court held that a preponderance of the evidence showed that defendants purchased Point Buckley Island, built a boat ramp without seeking proper permitting, erected structures on the island without seeking permitting, and added specific discharge pollutants to the surrounding waterway in violation of the CWA. As the Court explained, Point Buckley Island’s location lies directly within a tidal channel and marsh land as defined under the WOTUS Rule. The Court further described how the aerial photographs admitted into evidence showed where defendants had discharged pollutants in violation of the CWA and WOTUS Rule and rejected all the affirmative defenses offered by defendants. The Court then issued a declaratory judgment for the United States, directing that defendants: (i) restore and maintain the chemical, physical, and biological integrity of the waterways; and (ii) permanently protect the waterways.

The Court of Appeal reversed, holding that the California Regional Water Quality Control Board (“Board”) correctly issued abatement and cleanup orders for the numerous violations of environmental laws and regulations, as well as a separate assessment of civil penalties amounting to $2.8 million. The Court held that Sweeney violated the Porter-Cologne Act and the Board’s water quality control plan. It further held that Sweeney violated the CWA because Sweeney failed to obtain a CWA permit for the Point Buckley Island modifications, thus creating unauthorized discharge of pollutants. As for the Board’s abatement orders, the Court held that the Board acted reasonably when it required Sweeney to provide accurate technical reports assessing the water quality and impacts to the tidal marshes and, thus, the trial court erred when it found a cleanup and abatement order was unenforceable. The Court next held that the trial court’s decision was premised on erroneous conclusions of law or factual findings that were unsupported by the evidence. The Court of Appeal further supported the Board’s assessment of civil penalties holding that order was sufficiently supported by the Board’s findings and was not a retaliatory action. The Court of Appeal remanded the case to the trial court with instructions to vacate the writs of mandate and reinstate the Board’s orders to enforce the cleanup and abatement order and civil penalties order.

  1. Governor Newsom Extends Drought Emergency To 41 California Counties.

California Governor Gavin Newsom updated his April 21, 2021, drought emergency proclamation to include a total of 41 counties that make up 30% of California’s population. On May 10, 2021, Newsom added Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed counties to the list of counties under a drought state of emergency. The proclamation directs the State Water Board to consider modifying requirements for reservoir releases and diversion limitations to conserve water upstream later in the year to maintain water supply, improve water quality and protect cold water pools for salmon and steelhead. The state of emergency also enables flexibilities in regulatory requirements and procurement processes to mitigate drought impacts and directs state water officials to expedite the review and processing of voluntary transfers of water from one water right holder to another.

For more information see:

https://www.latimes.com/california/story/2021-05-10/drought-emergency-now-extends-to-4-1-california-counties-newsom-says

https://www.gov.ca.gov/2021/05/10/governor-newsom-expands-drought-emergency-to-klamath-river-sacramento-san-joaquin-delta-and-tulare-lake-watershed-counties/

https://www.gov.ca.gov/wp-content/uploads/2021/05/5.10.2021-Drought-Proclamation.pdf

  1. State Water Resources Control Board Proposed Emergency Rulemaking To Protect Water Supplies And Threatened And Endangered Fish In The Russian River Watershed.

On June 22, 2021, the State Water Resources Control Board (“SWRCB” or “Board”) issued a notice of proposed emergency rulemaking to address drought conditions in the Russian River watershed. The proposed regulations were approved unanimously by the Board during the June 15, 2021, Board Meeting following Governor Gavin Newsom’s state of emergency declaration in April. The Governor’s April 2021 proclamation also suspended environmental review under the California Environmental Quality Act for certain activities, including the adoption of emergency regulations by the State Water Board pursuant to Water Code section 1058.5. SWRCB findings state the need to curtail water diversions in response to decreased natural or abandoned flows so that water is available for: (1) senior water right users; (2) water right permits’ drought-adjusted minimum permit flow requirements for fish and wildlife, aligned with minimal flows for threatened and endangered fish species; and (3) minimum human health and safety needs. Proposed curtailments include both the Upper and Lower Russian River watershed. Upper Russian River watershed curtailments would be triggered if Lake Mendocino storage targets are not met and supplemental storage releases are occurring to satisfy in basin uses, while Lower Russian River watershed curtailments would be triggered when flows are insufficient to satisfy all water right demands. The Board also stressed the need to ensure adequate carry-over storage in Lake Mendocino to ensure continued access to water for minimum human health and safety in the event of prolonged drought conditions. Government Code section 11346.1(a)(2) requires that SWRCB wait at least five working days after providing the notice of proposed emergency action before submitting the proposed action to the Office of Administrative Law (“OAL”). Once OAL receives the proposed rule their website will be updated with directions for submitting comments.

For more information see:

https://www.waterboards.ca.gov/drought/russian_river/

https://www.waterboards.ca.gov/waterrights/water_issues/programs/drought/russian_river/docs/noticeofproposedemergencyrulemaking.pdf

https://www.waterboards.ca.gov/press_room/press_releases/2021/pr06152021_russian_river_curtailments.pdf

https://oal.ca.gov/emergency_regulations/emergency_regulations_under_review/

  1. State Water Resources Control Board Issues Report Of Investigation And Draft Cease And Desist Order To Nestlé Over Alleged Unauthorized Diversions Of Water.

On April 23, 2021, the California State Water Resources Control Board (“SWRCB”) sent a Report of Investigation (“ROI”) and draft Cease and Desist Order (“CDO”) to Nestlé Waters North America (“Nestlé”) for unauthorized diversion and threatened unauthorized diversions from Strawberry Creek in San Bernardino National Forest. This ROI was a revised version of a 2017 ROI and includes numerous conclusions relating to Nestlé’s diversion and use of water. The draft CDO alleged that Nestlé is subject to a CDO for the unauthorized diversion of water identified in the ROI conclusions and, if finalized, would order Nestlé to immediately cease all unauthorized diversions of water. The SWRCB started an investigation of Nestlé after the board received several water rights complaints and an online petition against Nestlé starting in April 2015. The complaints alleged diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting, all regarding Nestlé’s diversion of water from springs at the headwaters of Strawberry Creek bottling under the Arrowhead label. Nestlé’s response to the SWRCB’s letter alleged errors in the ROI and draft CDO but included a promise to abide by any final determinations after the conclusion of the appeal process.

For more information see:

https://www.waterboards.ca.gov/waterrights/water_issues/programs/enforcement/complaints/docs/nestle/4_23_2021_nestle_transmittal_letter_w_cc_ec_jr_signed.pdf

https://www.waterboards.ca.gov/waterrights/water_issues/programs/enforcement/complaints/nestle.html

https://www.nestle-watersna.com/media/our-response-state-water-resources-control-board-recommendation

  1. Santa Ana Regional Water Quality Control Board Approves Permit For Huntington Beach Desalinization Project In 4-3 Vote.

In late April of 2021, the Santa Ana Regional Water Quality Control Board (“Board”) approved the discharge permit for Poseidon Water’s proposed Huntington Beach Desalinization Project. Against Poseidon’s objections, the Board included a prohibition on plant operation until the Board has signed off on 60% of design plans, cost estimates, and timelines for mitigation work. Environmental requirements include the dredging of an ocean inlet to the Bolsa Chica wetlands, restoration of Bolsa Chica cordgrass marsh and creation of artificial reef habitat off the Palos Verdes Peninsula. Some critics have questioned the need for the project because the projected cost of water from Poseidon’s plant is twice as expensive as the current imported supplies. Before any water leaves the ocean, Poseidon still needs a construction permit from the California Coastal Commission to build on the proposed site and a binding deal with a public agency to buy 50 million gallons a day of purified seawater.

For more information see:

https://www.latimes.com/environment/story/2021-04-29/poseidon-wins-key-seawater-desalination-permit

  1. California Water Futures Are Trading Daily On The Chicago Mercantile Exchange.

California water futures began trading on the Chicago Mercantile Exchange in December of 2020 and are now traded daily. Water futures are distinct from other commodity futures because they do not increase the supply of water nor can the purchase of water futures facilitate moving water between locations. Proponents say that the purpose is to allow farmers to buy water futures to hedge against water price hikes that could occur in drought conditions. Supporters also claim that the market will even out supply and demand problems that accompany California’s increasing scarcity of freshwater. Opponents worry that trading water futures sets a dangerous precedent by allowing financial markets to determine the price of water, a product with no alternatives when it comes to agriculture. The impacts from the decision to trade water futures will start to become apparent with increased trading.

For more information see:

https://news.miami.edu/stories/2021/03/should-water-be-traded-as-a-commodity.html

https://www.latimes.com/business/story/2021-01-03/wall-street-california-water-futures

B. WATER QUALITY

  1. Environmental Protection Agency And Department Of The Army Seeking Public Input On Review Of The Trump Administration’s Section 401 Water Quality Certification Rule.

The Environmental Protection Agency (“EPA”) and the Department of the Army (“Army”) are reviewing the Trump administration’s Clean Water Act Section 401 Certification Rule (“Certification Rule”) that limited the scope of state authority over water quality certification. On July 30, 2021, the EPA and Army announced upcoming engagement opportunities on defining “Waters of the United States” (“WOTUS”). The EPA published a schedule for initial public meetings to hear from interested stakeholders on their perspectives on defining “waters of the United States” under the Clean Water Act and how to implement that definition as the agencies pursue this process. The agencies are also accepting written recommendations from members of the public and are planning further opportunities for engagement. In January of 2021, President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (“Executive Order”) that directed all Federal agencies to review regulations promulgated under the Trump administration to determine whether they need to be revised or rescinded. The Certification Rule limits (i) the timeframe for certification analysis and decisions, (ii) the scope of a section 401 certification to only discharges as opposed to the broader term “activities”, and (iii) the ability of states and tribes to impose requirements only on point source discharges into the Waters of the United States. The EPA and Army intend to revise the definition of WOTUS following a process that includes two rulemakings. First, a foundational rule would restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. A separate, second rulemaking process would refine this regulatory foundation and establish an updated and durable definition of “Waters of the United States.”

For more information see:

https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities

https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states

https://www.epa.gov/wotus/notice-public-meetings-regarding-waters-united-states

https://eelp.law.harvard.edu/2019/10/section-401-water-quality-certification/

https://eelp.law.harvard.edu/2021/01/section-401-of-the-clean-water-act-from-trump-to-biden/

  1. City of Duarte v. State of Water Resources Control Board (2021) 60 Cal.App.5th 258.

The Court of Appeal reversed and remanded the trial court’s ruling by holding that water quality control boards could consider economic factors in satisfaction of Water Code section 13241 for a NPDES permit. The Court further stated that the water control boards gave well supported reasoning to comply with the statutory requirements. The appeal arose when a permit issued by state and local water boards required 86 Southern California municipalities to reduce effluent discharge pollutants in stormwater sewage systems. The trial court ruled that the water boards and state did not sufficiently consider factors outlined in Section 13241 of the Water Code before issuing a permit, and this failure invalidated portions of the permits that were issued. The Court of Appeal disagreed. It held that the numeric effluent limitations in the Permit issued was no more stringent than the requirements outlined in the CWA.  The Court reviewed the factual findings under the substantial evidence standards and held that the Water control boards had sufficiently considered the necessary factors under Water Code Section 13241, including the need to consider “economic considerations” under subsection (d).

The Court held that the water boards had significant discretion when considering the factors, so long as they are supported by evidence in the record and factual findings. As for the “economic considerations” factor at issue, the Court reasoned that this discretion should be left with the water boards because in exceptional financial downturns like those resulting from the COVID-19 pandemic, the water boards must retain control so that they can account for these economic context when determining compliance with the permit requirements. The reversed judgment was and remanded with instructions to the trial court.

  1. Clarke v. Pac. Gas & Elec. Co., 2021 U.S. Dist. LEXIS 77731 (N.D. Cal. April 22, 2021).

The district court denied Pacific Gas and Electric’s (“PG&E”) motion to dismiss plaintiff Dan Clark’s Clean Water Act (“CWA”) claim. Clarke alleged that PG&E and its predecessors left behind hazardous waste created by the Cannery manufactured gas plant (“Cannery MGP”) along the northern waterfront of San Francisco. PG&E’s motion to dismiss alleged that Clarke’s claim is barred by the statute of limitations and is insufficiently pleaded to establish subject matter jurisdiction because Clarke (i) failed to allege an ongoing discharge by a “person”; (ii) failed to allege on ongoing discharge from a “point source”; (iii) and did not provide adequate notice of the claim. In a prior proceeding, the Court denied PG&E’s motion to dismiss Clarke’s Resource Conservation and Recovery Act claims and granted PG&E’s motion to dismiss Clarke’s claims under the CWA with leave to amend. Clarke’s amended complaint alleged a series of discrete discharges into the Bay including discharges within the five-year statute of limitations. Although PG&E argued that the discharges in question from Cannery MGP constituted one single CWA violation that occurred more than five years before the claim, the Court found that the complaint contained sufficient allegations to plausibly show that each discharge could each constitute a separate CWA violation. The Court also found that Clarke properly alleged discharges were by a “person” (PG&E), from a “point source” (Cannery MGP), and that he provided adequate notice of the CWA claim in his Notice of Intent to Sue.

  1. Proposed “California Clean Water Act” (AB 377) Would Prohibit Water Quality Control Plans From Including Compliance Schedules In Water Quality Permits.

The “California Clean Water Act” (“AB 377”), introduced by Assemblymember Rivas in February 2021, would prohibit water quality control plans from including schedules for entities to come into compliance with current standards starting on January 1, 2030. AB 377 would also prohibit the State Water Resources Control Board (“Water Board”) from issuing compliance schedules (aside from those for physical construction time) for new or more stringent water quality standards adopted after January 1, 2021. The bill’s purpose is to eliminate all impaired waterways and make all waters in California suitable for drinking, swimming, and fishing by 2050. AB 377 additionally requires the Water Board to form an Impaired Waterways Enforcement Program by January 1, 2030, which would enforce any remaining water quality permit violations that cause or contribute to an exceedance of a water quality standard. As currently written, this bill will have significant impacts on entities regulated by National Pollutant Discharge Elimination System (“NPDES”) permits, Waste Discharge Requirements (“WDRs”), or waivers of WDRs. On May 20, 2021, the Assembly Appropriations Committee voted to hold the bill on the suspense file as a two-year bill.

For more information see:

https://www.jdsupra.com/legalnews/proposed-california-clean-water-act-ab-7917154/

  1. EPA Proposes Delay To Effective Date Of The National Primary Drinking Water Regulations: Lead and Copper Rule Revisions.

The Environmental Protection Agency (“EPA”) proposed to delay the effective date of the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions (“LCRR”) until December 16, 2021. The EPA also proposed a delay of the LCRR compliance date from January 16, 2024, to September 16, 2024. The proposed delay comes after a January 2021 executive order by President Biden entitled “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (86 FR 7037, January 25, 2021) directing heads of Federal agencies to review certain regulations, including the LCRR. Additionally, the LCRR has been challenged in court by the Natural Resources Defense Council, Newburgh Clean Water Project, NAACP, Sierra Club, United Parents Against Lead and the Attorneys General of New York, California, Illinois, Maryland, Minnesota, New Jersey, Oregon, Pennsylvania, Wisconsin, and the District of Columbia. The stated improvements under the LCRR include using science-based testing protocols to find more sources of lead in drinking water, establishing a trigger level to jumpstart mitigation earlier and in more communities, driving more and complete lead service line replacements, requiring testing in schools and childcare facilities, and requiring water systems to identify and make public the locations of lead service lines.

For more information see:

https://www.regulations.gov/document/EPA-HQ-OW-2017-0300-1836

https://www.epa.gov/ground-water-and-drinking-water/revised-lead-and-copper-rule

C. WETLANDS

  1. California State Water Resources Control Board Formally Adopts State Wetland Definition And Procedures For Discharges Of Dredged Or Fill Material To Waters Of The State.

On April 6, 2021, the State Water Resources Control Board (“SWRCB” or “Board”) adopted a resolution to expressly confirm that the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” is in effect as state policy for water quality control. The Definitions and Procedures will be included in the forthcoming Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California. The Procedures consist of four major elements: (1) a wetland definition; (2) a framework for determining if a feature that meets the wetland definition is a water of the state; (3) wetland delineation procedures; and (4) procedures for the submittal, review and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities. SWRCB lists several reasons for the formal adoption of the procedures. First, the Board sites the need to strengthen protection of waters of the state that are no longer protected under the Clean Water Act (“CWA”) due to U.S. Supreme Court decisions, since the Water Boards have historically relied on CWA protections in dredged or fill discharge permitting practices. Second, there is inconsistency across the Regional Water Boards in requirements for discharges of dredged or fill material into waters of the state, including wetlands. Finally, current regulations have not been adequate to prevent losses in the quantity and quality of wetlands in California, where there have been especially profound historical losses of wetlands.

For more information see:

https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/wrapp/rs2021_0012.pdf

https://www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.html

  1. United States v. Lucero (9th Cir. 2021) 989 F.3d 1088.

The Ninth Circuit reversed a conviction of Defendant Lucero for discharging a pollutant in violation of the Clean Water Act (“CWA”), because the jury instruction failed to clearly indicate that: (i) Mr. Lucero must have knowingly discharged; and (ii) the error was not harmless. The Ninth Circuit further held that the jurisdictional waters were clearly defined at the time of defendant’s trial, and that the courts could not rely on the 2020 regulatory changes in the law to retroactively apply standards for conviction. Mr. Lucero was executing a dumping scheme whereby in 2014, during a particularly drought heavy year, he was dumping debris on sites in the San Francisco Bay Area that would have been inundated with water and subject to protection under the Waters of the United States (“WOTUS”) definition of the CWA. A jury convicted Mr. Lucero on three counts of violating the CWA for illegal discharges into navigable waters without a permit. Upon conviction, Mr. Lucero filed the subsequent appeal. Mr. Lucero’s defense included three main arguments: (1) the jury instruction omitted the CWA’s knowledge element, (2) the WOTUS definition is unconstitutionally vague; and (3) the 2020 WOTUS rule adoption should apply retroactively.

Regarding the knowledge element, the Ninth Circuit declined to further improve on what is “into water” and what is “to waters of the United States.” Instead, the panel focused on the knowledge element itself and stated that the burden is merely to prove that the defendant knowingly discharged “into water.” It then held that since the facts presented did not convey that Mr. Lucero knowingly discharged into water, the jury instruction was not properly read. The Court further reasoned that because the jury instruction was vague, and the panel could not say whether the jury would have properly reached the same guilty verdict, it reversed the conviction and remanded the case for a new trial with clear jury instructions.

As to Mr. Lucero’s second argument that the WOTUS definition is unconstitutionally vague, the Panel disagreed. It held that it is not unconstitutional simply by being difficult to determine how it applies. Instead, it must be proven to be unreasonable to the point where no standard of conduct could apply at all. The Court noted that while the WOTUS rule is complex it provides ascertainable standards to protect jurisdictional waters.

Lastly, Mr. Lucero called on the Court to apply the 2020 WOTUS rule retroactively to conviction, but the Court rejected that argument. It held that generally legislative actions lack retroactive effect unless so indicated by Congress expressly. As the Panel indicated, the 2020 WOTUS rule was intended to be applied prospectively since the executive branch did not expressly indicate that enforcement would apply retroactively. The Court reversed the conviction and remanded the case for a new trial with clear jury instructions.

  1. Tenth Circuit Reverses Lower Court’s Ruling And Reinstates Trump Era Navigable Waters Protection Rule Redefining “Waters Of The United States” In Colorado; Rule Faces Increased Opposition Under Biden Administration.

On March 2, 2021, the Tenth Circuit rejected a federal judge’s decision to halt implementation of the Navigational Waters Protection Rule (“Rule”) in Colorado (Colorado v. United States EPA (10th Cir. 2021) 989 F.3d 874), meaning the rule is now in effect nationwide. In June of 2020, a federal judge in Colorado granted a motion made by state agencies asking for a stay in the implementation of the Rule because the conflict between Colorado’s clean water statutes and the Rule would leave portions of state waters without any permitting mechanisms. The Tenth Circuit held that Colorado failed to show it would “suffer irreparable injury” without the preliminary injunction. (Colorado, 989 F.3d at 885). The Rule became effective in all other states on June 22, 2020, although other lawsuits challenging the rule are still ongoing. The Rule was published in April of 2020 and redefined the Clean Water Act (“CWA”) term “Waters of the United States” to reduce the number of waterways and wetlands protected by the CWA. The Army Corps of Engineers and the Environmental Protection Agency (“EPA”) will review the Rule pursuant to President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.” At the end of March 2021, the EPA’s Office of the Inspector General released a report finding that the EPA failed to comply with important process “milestones” when crafting the Rule.

For more information see:

https://eelp.law.harvard.edu/2017/09/defining-waters-of-the-united-states-clean-water-rule/

https://www.epa.gov/sites/production/files/2021-03/documents/_epoig_20210331-21-p-0115.pdf

  1. California AG Filed Comments To The U.S. Army Corps Of Engineers Regarding Proposed Wetland Filling And Gas Drilling In The San Francisco Bay-Delta.

On April 2, 2021, acting California Attorney General Mathew Rodriguez filed comments to the U.S. Army Corps of Engineers (“USACE”) regarding concerns over a Clean Water Act (“CWA”) Section 404 permit (“permit”) to fill wetlands and conduct exploratory oil and gas development in the San Francisco Bay-Delta. Oil and gas developer Sunset Exploration filed the permit as part of its proposed Hunter’s Point Natural Gas Well Drilling Project (“Project”) in Suisun Marsh. The California AG submitted several recommendations to USACE, including urging the agency to: (i) make the application itself available to the public; (ii) review the project’s potential environmental justice and greenhouse gas impacts; (iii) consult with wildlife agencies concerning potential impacts to all federal- and state-listed species; (iv) consider alternatives that would not harm the saltwater marsh habitat and species, (v) perform an environmental impact statement rather than the proposed environmental assessment; and (vi) evaluate all available mitigation measures. The AG also asked USACE to defer issuing the permit until the San Francisco Bay Conservation and Development Commission (“Commission”) determines whether the Project is consistent with the enforceable policies of the Commission’s federally approved coastal management program pursuant to the Coastal Zone Management Act.

For more information see:

https://stateimpactcenter.org/ag-actions/california-ag-filed-comments-raising-concerns-regarding-proposed-wetland-filling-and-gas-drilling-in-san-francisco-bay-delta

https://oag.ca.gov/system/files/attachments/press-docs/2021.04.02%20AG%20Comments%20FINAL.pdf

  1. The Ballona Wetlands Ecological Reserve Project Moves Forward After California Department Of Fish And Wildlife Certifies Final Environmental Impact Report.

The Ballona Wetlands Ecological Reserve Project (“Project”) aims to restore the Ballona Wetlands by removing invasive plants and leftover fill from the development of Marina Del Rey, re-establish a functioning floodplain, and create natural levees for flood protection against sea level rise. The Project will also add walking paths and bike trails to make the area into more of a park. Supporters, including the director of the California Department of Fish and Wildlife (“DFW”) and groups like Friends of Ballona and Heal the Bay, say that the Project will create park space for communities without much green space and will rival Griffith Park in ecology and size. Opposition groups, like the LA Audubon Society, say the Project goes beyond restoration and will harm species that currently use the Ballona Wetlands. The Project approval by DFW has been challenged in court by the Grassroots Coalition over an allegedly incomplete environmental analysis, including the failure to include certain geotechnical issues.

For more information see:

https://www.kcrw.com/news/shows/greater-la/los-angeles-environment-ecology/ballona-wetlands-restoration

  1. Fifteen State Attorneys General Filed Amicus Brief Supporting Environmental Groups Challenging The Trump Administration’s “Navigational Waters Protection Rule.”

Led by California and Massachusetts, fifteen states filed an amicus brief in support of a coalition of environmental group’s motion for summary judgement in their lawsuit against the Environmental Protection Agency (“EPA”) over the Trump Administration’s “Navigational Waters Protection Rule” (“Rule”). The Rule narrowed the meaning of the Clean Water Act (“CWA”) term “Waters of the United States” from the Obama administration’s 2015 rule which included waters with a “significant nexus” to jurisdictional waters in the definition. The amicus brief argues that the Rule will result in significant harms to the states—especially downstream states—due to reduced nationwide water quality protection. The fifteen states also argue that the Rule is contrary to the CWA’s text, structure, and purpose to maintain and restore the integrity of the Nation’s waters.

For more information see:

https://stateimpactcenter.org/ag-actions/fifteen-ags-filed-amicus-brief-support-environmental-groups

https://oag.ca.gov/sites/default/files/Stamped%20WOTUS%20Amicus%20Brief.pdf

https://oag.ca.gov/news/press-releases/attorney-general-becerra-continues-challenge-trump-administration%E2%80%99s-unlawful

https://www.environmentallawandpolicy.com/2020/04/trump-administration-publishes-final-navigable-waters-protection-rule/

D. AIR QUALITY AND CLIMATE CHANGE

  1. United Nation’s Intergovernmental Panel On Climate Change Releases Sixth Climate Assessment Report.

The Sixth Climate Change Assessment (“Assessment”) from the United Nation’s Intergovernmental Panel on Climate Change (“IPCC”) was released in August of 2021. According to the Assessment, evidence of observed changes in extremes such as heatwaves, heavy precipitation, droughts, and tropical cyclones, and their attribution to human influence, has strengthened since the Fifth Assessment Report. The Assessment details several potential climate scenarios, all of which show that surface temperature will continue to increase until at least the mid-century. These scenarios show that the goal of the Paris Climate Agreement to keep global warming under 1.5°C will not be met unless deep reductions in carbon dioxide and other greenhouse gas emissions occur in the coming decades. For the western United States in particular, the report projects that the western United States will experience increases in drought and fire weather, extreme precipitation, and river and pluvial flooding over the course of the twenty-first century.

For more information see:

https://www.ipcc.ch/report/ar6/wg1/

https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Headline_Statements.pdf

https://www.ipcc.ch/report/ar6/wg1/downloads/factsheets/IPCC_AR6_WGI_Regional_Fact_Sheet_North_and_Central_America.pdf

  1. City of Torrance v. Southern California Edison Co. (2021) 61 Cal.App.5th 1071.

On appeal, the district court reversed the trial court’s decision and found that clean energy credits for electricity payments do not reduce the consumer’s tax base. Torrance, a charter city, imposes several utility-related taxes on its residents including taxes on telephone communication services, natural gas, water, cable television, and electricity. Edison is the investor-owned utility serving electricity customers in Torrance and is therefore required to collect the electricity users’ tax and remit all amounts collected to Torrance. The clean energy credits at issue are Industry Assistance (“IA”) credits and are part of the California Air Resource Board’s financial assistance programs for electric utility customers affected by greenhouse gas emission reduction programs such as the California Cap-and-Trade Program. The California Public Utilities Commission (“Commission”) determines the amount of the IA credit. For purposes of administrative convenience, Edison disburses the IA credit as a credit on an electricity consumer’s bill, as directed by the Commission. Under Torrance’s view, a user’s IA credit, if any, would not affect the tax base because it is unrelated to the charge for the electricity used by the consumer. Edison contends the tax base is equal to the net amount it bills electricity consumers and therefore the consumer’s electricity users’ tax base (and, ultimately, the amount of the tax) will necessarily be reduced whenever a consumer receives an IA credit.

The City of Torrance’s complaint sought declaratory relief concerning the interpretation and application of the electricity tax ordinance and asserted that Edison failed to comply with the ordinance by not collecting the proper amount of electricity users’ tax from consumers. Torrance also sought to recover the unpaid taxes, together with penalties and interest, from Edison. The trial court sustained Edison’s demurrer to Torrance’s original complaint without leave to amend and entered a judgment of dismissal. The trial court found Edison had calculated the electricity users’ tax properly and, in addition, Torrance’s claim to recover unpaid taxes from Edison (as opposed to electricity consumers) failed as a matter of law. The district court reversed and agreed with Torrance that the electricity tax ordinance cannot reasonably be construed to reduce Torrance’s electricity users’ tax base by the value of IA credits distributed by Edison. However, the district court adopted Edison’s position that Torrance cannot recover unpaid taxes from Edison and must instead amend its complaint to include electricity consumers as defendants.

  1. Twenty-One State Attorneys General Petition for Review of the Environmental Protection Agency’s Greenhouse Gas Regulation Threshold Rule.

Led by California, twenty-one state attorneys general and six local governments filed a lawsuit challenging the Environmental Protection Agency’s (“EPA”) final rule that will set a sector-by-sector threshold for the regulation of greenhouse gas (“GHG”) emissions from stationary sources under the Clean Air Act (“CAA”). The lawsuit argues that the EPA established an arbitrary test without providing adequate notice to the public and an opportunity to comment, which is not allowed under the CAA. The rule, titled “Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories,” states that industries that emit less than 3% of total U.S. GHG emissions, the industry cannot be regulated under the CAA. This rule would effectively remove three-quarters of the country’s GHG emitters from regulation under the CAA.

For more information see:

https://stateimpactcenter.org/ag-actions/eighteen-ags-filed-petition-review-epas-ghg-regulation-threshold

https://oag.ca.gov/system/files/attachments/press-docs/Petition%20for%20Review%20NSPS%20GHG%20significance%20filed%201-19-21.pdf

https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-challenge-trump-administration-rule-blocking

  1. Sixteen State Attorneys General Filed Comments Urging the Environmental Protection Agency To Reopen Review of Particulate Matter NAAQS.

Led by New York, sixteen state attorneys general filed comments urging the Environmental Protection Agency (“EPA”) to change its decision to leave the existing National Ambient Air Quality Standards (“NAAQS”) in place. The comments state that a significant and growing body of scientific evidence shows that the existing NAAQS are inadequately protective of public health. The comments cite three recently published scientific studies that provide further evidence of “both the immediate harms of exposure to particulate matter during a respiratory disease pandemic and the long-term cognitive impacts” of exposure to fine particulate matter (PM2.5). The comments are similar to concerns raised by comments submitted by state attorneys general in July of 2020.

For more information see:

https://stateimpactcenter.org/ag-actions/sixteen-ags-filed-comments-urging-epa-reopen-review-particulate

https://oag.ca.gov/sites/default/files/2020%2011%2020%20PM%20supplemental%20comments%20with%20studies.pdf

  1. Biden Administration Announces Greenhouse Gas Pollution Reduction Targets After Rejoining The Paris Climate Agreement.

President Biden announced new greenhouse gas (“GHG”) emission reduction targets for the year 2030 to fulfill Paris Climate Agreement goals. Principally, Biden set a goal to reach 100% carbon pollution-free electricity by the year 2035. To reach this goal, the administration proposed retrofitting power plants with carbon capture and using existing nuclear energy plants. Other goals include promoting carbon capture and new sources of hydrogen to power industrial facilities. The administration also promises significant investments in clean energy sectors, technologies to reduce emissions associated with construction, and transportation infrastructure.

For more information see:

https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/

  1. Environmental Protection Agency Proposes Reinstating California’s Waiver For Car Emission Standards, Reversing Trump Era Rule.

The U.S. Environmental Protection Agency (“EPA”) issued a Notice of Reconsideration of the Trump Administration’s 2019 final rule titled The Safer Affordable Fuel-Efficient Vehicles Rule Part One: One National Program Rule (“Rule”). In 2019, the Trump Administration EPA finalized the rule which revoked California’s waiver for greenhouse gas pollution standards for cars under the Clean Air Act (“CAA”). California is the only state eligible for such a waiver because California had vehicle emission standards in place before congress passed the CAA. The rule affected more than just California, as the waiver allowed other states to adopt California’s more strict standards. EPA Administrator Michael Regan stated that “[he is] a firm believer in California’s long-standing statutory authority to lead. The 2019 decision to revoke the state’s waiver to enforce its greenhouse gas pollution standards for cars and trucks was legally dubious and an attack on the public’s health and wellbeing.”

For more information see:

https://www.latimes.com/environment/story/2021-04-26/epa-california-emissions-waiver-reversing-trump

https://www.epa.gov/newsreleases/epa-reconsiders-previous-administrations-withdrawal-californias-waiver-enforce

https://www.epa.gov/regulations-emissions-vehicles-and-engines/notice-reconsideration-previous-withdrawal-waiver

  1. Twenty-One Attorneys General Sent Letter To Congressional Leaders In Support Of Congressional Review Act Resolution To Reinstate Environmental Protection Agency Regulations On Methane Emissions.

On April 26, 2021, a coalition of twenty-one attorneys general led by New York Attorney General Letitia James sent a letter to congressional leaders expressing support of a Congressional Review Act (“CRA”) resolution to invalidate a Trump administration rule that rescinded emission controls for the oil and gas industry. The Environmental Protection Agency (“EPA”) under Trump removed controls on emissions of methane and harmful conventional pollutants that the EPA acknowledged would trigger significant increases in pollutant emissions. The coalition of AGs described the rescission as doing away with “common sense, cost-effective approaches” established by the Obama administration that protected public health and the environment as well as the efficiency of natural gas operations by reducing leakage in all segments of the industry. If the CRA resolution passes, the EPA will be precluded from promulgating a rule that is substantially the same as the one that was repealed.

https://stateimpactcenter.org/ag-actions/twenty-one-ags-sent-letter-in-support-of-congressional-review-act-resolution-to-restore-epa-regulations-on-methane-emissions

https://ag.ny.gov/sites/default/files/2021_04_26_final_multistate_letter_supporting_cra_disapproval_of_epa_methane_rescission_rule.pdf

https://ag.ny.gov/press-release/2021/attorney-general-james-urges-congress-void-trump-era-rule-eliminating-key-limits

E. RENEWABLE ENERGY

  1. Cabatit v. Sunnova Energy Corporation (2020) 60 Cal.App.5th 317.

In a suit arising out of the careful examination of a residential solar contract, the Court of Appeal stated that in narrow contexts a mandatory arbitration clause can be invalid. The Court held that a mandatory arbitration clause is unconscionable when the clause is not called to the signatory’s attention at the time of signing and the clause is clearly one-sided. The case before the Court arose when plaintiffs, the Cabatits, entered into a solar power lease agreement with Sunnova Energy Corporation. After the unit was installed, leaking occurred around the solar panels leading to roof damage. At the time the parties entered into the contract, the Sunnova salesperson made a presentation at the Cabatit home telling the family to initial certain provisions of the contract and did not explain or have them read them through carefully. The family lacked internet access and a computer, and Mrs. Cabatit did not speak English well enough to understand the complexity of the contract she signed.

After the Cabatits filed their lawsuit, Sunnova responded stating that the arbitration clause required the case to proceed through arbitration first. Plaintiffs argued that the arbitration clause should be stricken because the contract was both procedurally and substantively unconscionable. Finding for Plaintiffs, the Court held that the contract was procedurally unconscionable for several reasons: (i) the Cabatits had no opportunity to “bargain over its terms”; (ii) the arbitration clause was not called to the attention of the Cabatits; (iii) the Cabatits were not given a copy of the contract; and (iv) the contract was presented as a standardized agreement thus “supporting a finding of a high degree of procedural unconscionability.” The Court further held that the contract was substantively unconscionable because of the “breadth of the term ‘default’ favoring Sunnova, and the limitations imposed on the Cabatits regarding their own available court relief.” The Court affirmed the trial court’s ruling that the contract was in fact unjustifiably one-sided and held that the arbitration clause was unenforceable.

  1. Biden Administration Plans To Allow Commercial Offshore Wind Farms In California.

The Biden administration has pledged to rapidly increase offshore wind energy in the United States and has identified two areas off the California coast for development of wind turbines: a 399-square-mile area in Morro Bay about 20 miles offshore of central California and another area off the coast of Humboldt County near the Oregon border. Traditionally, offshore wind units have been blocked in California due to logistical challenges and opposition from the Navy. Opponents from the California fishing industry claim that the Biden administration plan is larger and more potentially disruptive to marine life than they had discussed, with the Morro Bay location being substantially larger than the earlier 120-square-mile proposal. Other opponents emphasize that offshore wind is expensive, double that of an advanced nuclear reactor and three times the cost of natural gas. Proponents, including California Governor Gavin Newsom, cite rapidly advancing climate change and the need to transition to renewable energy as well as the creation of new jobs. Offshore wind is new to the United States, although the practice is widely used in Europe. The first ever commercial-scale offshore wind farm in the United States was recently approved by the Biden administration and the Department of the Interior (“DOI”) is currently reviewing about a dozen other projects along the East Coast. The DOI plans to auction a lease in one of the identified areas in California in the middle of 2022.

For more information see:

https://www.nytimes.com/2021/05/25/climate/biden-california-wind-farm.html

https://www.instituteforenergyresearch.org/renewable/wind/biden-approves-california-offshore-wind-units/

  1. Biden Administration Initiates Review Of Energy Conservation Standards For Consumer Products.

President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (“Executive Order”), which requires the Department of Energy (“DOE”) to consider suspending, revising, or rescinding Trump-era appliance- and building-efficiency standards. President Biden instructed DOE to propose major revisions to the rule on energy conservation standards for consumer products and commercial/industrial equipment by March 2021; propose major revisions to the rule on energy conservation program appliance standards by March 2021; review DOE’s notice on energy efficiency improvements in the 2018 IECC by May 2021; and review DOE’s notice on building energy efficiency standards by May 2021. DOE has begun to publish notices in the Federal Register for proposed and final rules pursuant to the Executive Order.

The Energy Policy and Conservation Act (“Act”) directs the DOE to establish energy conservation standards for most major household appliances and many types of commercial equipment. DOE’s energy conservation program includes testing, labeling, and enacting energy conservation standards, as well as product certification and enforcement. These standards are meant to reduce energy demand and increase energy efficiency to reduce greenhouse gas emissions. DOE under the Trump Administration declined to set compliance dates for certain standards, modified other standards, and proposed changes to its process for developing standards and testing equipment. The Trump DOE additionally finalized a new rule, known as the “economic justification rule” that changes the way costs are considered during the standard development process. Previously, DOE would set standards that provide maximum energy savings and adjust them as needed to arrive at a level where costs to manufacturers and consumers could be justified. Now, DOE will simultaneously consider costs as it sets the standards. On April 12, 2021, DOE published a notice of proposed rulemaking to reverse the changes to the process rule.

For more information see:

https://eelp.law.harvard.edu/2017/09/energy-conservation-standards-for-consumer-products/

https://www.federalregister.gov/documents/2021/04/12/2021-06853/energy-conservation-program-for-appliance-standards-procedures-interpretations-and-policies-for

https://www.federalregister.gov/documents/2021/05/27/2021-10882/energy-conservation-program-energy-conservation-standards-and-test-procedures-for-ceiling-fans

https://www.federalregister.gov/documents/2021/05/26/2021-10883/energy-conservation-program-test-procedure-and-energy-conservation-standards-for-circulator-pumps

https://www.federalregister.gov/documents/2021/04/12/2021-06853/energy-conservation-program-for-appliance-standards-procedures-interpretations-and-policies-for

https://www.federalregister.gov/documents/2021/03/29/2021-05415/energy-conservation-program-test-procedure-for-room-air-conditioners

https://www.federalregister.gov/documents/2021/04/16/2021-07137/energy-conservation-program-test-procedure-for-direct-heating-equipment

https://www.federalregister.gov/documents/2021/05/20/2021-09695/energy-conservation-program-test-procedures-for-water-closets-and-urinals

https://www.federalregister.gov/documents/2021/05/19/2021-10448/energy-conservation-program-test-procedures-for-certain-commercial-and-industrial-equipment-early

https://www.federalregister.gov/documents/2021/05/27/2021-10882/energy-conservation-program-energy-conservation-standards-and-test-procedures-for-ceiling-fans

F. ENDANGERED SPECIES ACT

  1. The United States Fish and Wildlife Service Proposed To List The Emperor Penguin As Threatened Species Under The Endangered Species Act.

On August 3, 2021, the U.S. Fish and Wildlife Service (“USFWS”) proposed to list the emperor penguin as a threatened species under section 4(d) of the Endangered Species Act (“ESA”). USFWS cites habitat loss due to melting sea ice caused by climate change as the reason for listing. While emperor penguin populations are still large, the species is in danger of extinction in the foreseeable future in a significant portion of its range. USFWS states that to the best available science, the global population size of Emperor Penguins will likely decrease between 26 percent and 47 percent by 2050 under low and high carbon emissions scenarios, respectively. The proposed rule to list the emperor penguin as threatened under the ESA is published in the Federal Register and USFWS will consider comments from all interested parties received by October 4, 2021.

For more information see:

https://www.fws.gov/news/ShowNews.cfm?ref=us-fish-and-wildlife-service-proposes-to-list-the-emperor-penguin-as-&_ID=36967

https://www.regulations.gov/document/FWS-HQ-ES-2021-0043-0001

  1. United States Fish & Wildlife Service v. Sierra Club, Inc. (2021) 209 L.Ed.2d 78.

The United States Supreme Court held that the deliberative process privilege applies to in-house drafts of an agencies’ last word on a proposal to list a potentially endangered or listed species. As the High Court held, when agencies deliberate about the potential threats to foreseeable listed species through the biological opinion process, those internal draft deliberations shall be protected by the “deliberative process privilege” under Exemption 5 to the Freedom of Information Act (“FOIA”). FOIA mandates that a federal agency disclose all documents generated by an agency when making a biological assessment on a potential listing of a species unless the documents fall into one of nine exemptions to FOIA. Exemption 5 is the inter-agency or intra-agency exemption which incorporates the deliberative process privilege shielding the agencies from disclosing “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” (NLRB v. Sears, Roebuck & Co., 95 S.Ct. 1504, 1544 (1975).) The Court concluded that so long as the document does not have “real operative effect” or reflect the “consummation’ of the agency’s decision-making process” it is protected by the deliberative process privilege. It, thus, held that “if the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.” The Court concluded by stating that draft biological opinions are both prejudicial and deliberative and therefore should be protected.

  1. S. Fish And Wildlife Service And The National Marine Fisheries Service Start Rulemaking Process To Rescind, Revise, and Reinstate Endangered Species Act Regulations.

Pursuant to an Executive Order issued by President Biden, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) announced upcoming rulemaking activities with regard to five Endangered Species Act (“ESA”) regulations finalized by the Trump Administration. In January of 2021, President Biden issued Executive Order 13990, which directed all federal agencies to review and address agency actions during the last four years that conflict with Biden-Harris administration objectives, such as addressing climate change. The proposed changes are as follows:

  • Rescind regulations that revised FWS process for considering exclusions from critical habitat designations under section 4(b)(2) of the ESA.
  • Rescind regulatory definition of the term “habitat” for the purposes of critical habitat designation.
  • Revise regulations for listing species and designating critical habitat to reinstate prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination,” along with other potential revisions also under discussion.
  • Revise regulations for interagency cooperation including the definition of “effects of the action” and associated provisions to that portion of the rule, with other potential revisions also under discussion.
  • Reinstate protections for species listed as threatened under the “blanket 4(d) rule,” which was withdrawn by the previous administration (84 Fed. Reg. 44753; August 27, 2019). The blanket 4(d) rule establishes the default of automatically extending protections provided to endangered species to those listed as threatened unless the Service adopts a species-specific 4(d) rule.

For more information see:

https://www.fws.gov/news/ShowNews.cfm?ref=u.s.-fish-and-wildlife-service-and-noaa-fisheries-to-propose-regulatory-&_ID=36925

  1. Twelve Attorneys General Urge Department Of The Interior To Reverse Trump Era Rollback Of Migratory Bird Treaty Act Protections.

Led by New York, a coalition of twelve attorneys general submitted comments to the Department of the Interior (“DOI”) in support of restoring protections under the Migratory Birds Treaty Act (“MBTA”). The comments focus on a rule promulgated by DOI under the Trump Administration that interpreted the MBTA as not prohibiting the incidental take of protected bird species. The AGs contend that the rule is invalid because it is not represented in the MBTA’s text, purpose, and history and is contrary to federal courts upholding MBTA prosecutions for incidental take. The AGs also reference previous comments and ongoing litigation based on the rule. The comments urge DOI to further delay the effective date of the rule and ultimately a reversal of the rule entirely.

For more information see:

https://stateimpactcenter.org/ag-actions/twelve-ags-filed-comments-urging-interior-department-reverse

https://www.law.nyu.edu/sites/default/files/FWS-HQ-MB-2018-0090-18792_attachment_1.pdf

  1. Eighteen Attorneys General File Lawsuit Against U.S. Fish And Wildlife Service And National Marine Fisheries Service Challenging Two Rules Concerning The Endangered Species Act Habitat Designations.

Led by California and Massachusetts, eighteen attorneys general filed a lawsuit against the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) over newly promulgated rules that limit habitat protections under the Endangered Species Act (“ESA”). The lawsuit targets two rules, the first that created a narrow definition of “habitat” for

purposes of making critical habitat designations under Section 4 of the ESA. The lawsuit argues that this definition “fails to account for species’ need to expand their current ranges or to migrate to currently unoccupied habitat in response to existential threats such as climate change and habitat destruction to ensure species recovery and survival as mandated by the ESA.” The second rule was promulgated just by FWS and created a new process for excluding areas of critical habitat when making such designations. The AGs contend that the second rule gives developers and extractive industry inappropriate influence over Endangered Species Act critical habitat designation processes.

For more information see:

https://stateimpactcenter.org/ag-actions/eighteen-ags-filed-lawsuit-challenging-restrictive-habitat

https://www.mass.gov/doc/esa-complaint/download

  1. Amicus Brief Filed By Twelve Attorneys General In Support Of District Court’s Decision To Vacate Nationwide Permit 12, Against U.S. Army Corps of Engineers’ Opposition.

California led a coalition of twelve attorneys general in filing an amicus brief to the U.S. Court of Appeals for the Ninth Circuit to uphold the district court’s ruling that the U.S. Army Corps of Engineers (“USACE”) improperly reauthorized the Nationwide Permit 12. The district court held that reauthorization should be vacated because USACE did not engage in Endangered Species Act (“ESA”) mandated consultation with the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”). Nationwide Permit 12 relies on programmatic consultation between USACE, FWS, and NMFS to prevent harm to endangered and threatened species while allowing qualifying infrastructure projects to proceed without obtaining project-specific Clean Water Act (“CWA”) permits, which would require project-specific ESA consultation. USACE contends “because it will be consulting with the Services on individual projects where warranted, it need not consult with the Services regarding the reissuance of NWP 12 as a whole,” and thus its actions were proper. In their brief, the AGs emphasized that the ESA “does not permit an ‘incremental-step’ consultation approach as a substitute for consultation on the overall agency action,” and warned that allowing such an approach would “essentially [read] the requirement of programmatic consultation out of the regulations.”

For more information see:

https://stateimpactcenter.org/ag-actions/twelve-ags-filed-amicus-brief-support-challenge-nationwide-permit

https://oag.ca.gov/sites/default/files/FILED%20Brief%20Amici%20Curiae.pdf

G. HAZARDOUS MATERIALS AND REMEDIATION

  1. Vincent v. Mayhew Center, LLC, 2021 U.S.Dist.LEXIS 31529 (N.D. Cal. February 19, 2021).

A U.S. District Court for the Northern District of California dismissed a lawsuit between parties over a property in Walnut Creek, California, that was environmentally contaminated and the contamination was spreading into neighboring properties. In 2007, Mayhew Center was held liable and ordered to clean up the neighbor’s property as well as its own pursuant to CERCLA. In 2017, Mayhew Center defaulted on its mortgage, failed to fulfill its obligations to cleanup both properties, and the property was foreclosed on. In the foreclosure sale, plaintiff Vincent, entered into an agreement with the Regional Water Quality Control Board (“Regional Board”) to assume remediation obligations under the purchase and sale agreement. Vincent then sued Mayhew Center, Beards, and Etch-Tek for liability to remediate the property under CERCLA. Beards and Etch-Tek moved to dismiss claims against them on res judicata grounds to which the U.S. District Court agreed. The Court held that Vincent could not hold Beards or Etch-Tek liable under CERCLA because liability arose out of the same nucleus of facts and that a judgment had already been rendered against Mayhew Center who was obligated to clean up the property. Vincent argued that cost recovery under CERCLA was substantially different from the prior case because Vincent sought recovery under a different section of the CERCLA statute. The Court held that while recovery was in fact sought under a different section of CERCLA, this would not allow for plaintiffs to use different procedural CERCLA vehicles to accomplish the same ends. As such, the Court dismissed the case against defendants Beards and Etch-Tek with prejudice.

H. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)

  1. City of L.A. v. Dickson, 2021 U.S. App. LEXIS 20248 (9th Cir. July 8, 2021, No. 19-71581).

In its review of the Federal Aviation Administration’s (“FAA”) adoption of a categorical exclusion under NEPA for Los Angeles Airport’s (“LAX”) proposed amendments to airplane arrival routes, the Ninth Circuit  Court of Appeals held that the decision was arbitrary and capricious in violation of NEPA. It reasoned that the FAA failed to: (1) address the record evidence indicating that there was a dispute over the potential effects of the amended arrival routes in its environmental review, in contravention of its own procedures; and (2) complete the required consultation under the National Historic Preservation Act before it evaluated the project’s effects on historic structures.

I. MINING, OIL, AND GAS

  1. Louisiana v. Biden, 2021 U.S.Dist.LEXIS 112316 (W.D.La. June 15, 2021, No. 2:21-CV-00778) – United States District Court Blocked The Biden Administration’s Pause On Oil And Gas Leasing.

In response to a lawsuit by the State of Louisiana and twelve other states, the U.S. District Court for the Western District of Louisiana issued a preliminary injunction that stopped the Biden Administration’s pause on oil and gas leasing. The Biden Administration’s pause directed agencies not to issue new leases for oil and gas drilling in offshore waters and on public lands while officials conduct an environmental and financial review of leasing practices. The injunction applies nationwide and will be in place pending resolution of the lawsuit itself. To receive a preliminary injunction, the movant must show (1) the substantial likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of a preliminary injunction, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. The states’ lawsuit claims that the Biden Administration violated the Administrative Procedure Act (“APA”) because the administration (i) acted contrary to law in violation of APA § 706(2)(A) and (C) by effectively amending congressional statutes OCSLA and MLA; (ii) acted in an arbitrary and capricious manner in violation of APA § 706(2)(A) by omitting any “any rational explanation in cancelling the lease sales”; (iii) failed to provide notice and comment required by APA § 553(a); and (iv) unreasonably withheld and unreasonably delayed lease sales which constitute agency required activity in violation of APA § 706(1). The Biden Department of the Interior confirmed that it will comply with the order while continuing to work on an interim report that will include initial findings on the state of the federal conventional energy program.

For more information see:

https://www.cnn.com/2021/06/15/politics/oil-gas-lease-pause-biden-administration/index.html

https://storage.courtlistener.com/recap/gov.uscourts.lawd.179675/gov.uscourts.lawd.179675.140.0.pdf

  1. California Prosecutor Files Criminal Charges Against Pacific Gas & Electric Over The 2019 Kincade Wildfire.

The Sonoma County District Attorney (“DA”) charged Pacific Gas & Electric (“PG&E”) with five felony and twenty-eight misdemeanor counts that allege the utility of endangering public health and injuring six firefighters. The California Department of Forestry and Fire Protection reported that the fifteen-day fire, which ultimately destroyed 374 buildings and forced 100,000 people to evacuate, was sparked when high winds broke a PG&E transmission line. The DA accuses the company of destroying inhabited structures and endangering public health by causing contamination of the air “with reckless disregard for the risk of great bodily injury” from toxic wildfire smoke. They allege that the utility failed to maintain facilities including transmission lines, among the numerous related misdemeanor charges. While PG&E accepts the finding that its transmission line caused the fire, the company asserts that no crimes were committed.

For more information see:

https://www.latimes.com/world-nation/story/2021-04-06/californias-pacific-gas-electric-charged-in-2019-wildfire

  1. Supreme Court Sends Climate Change Lawsuit Against Five Major Oil Companies Back To District Court, Future Of Lawsuit Uncertain.

In June of 2021, the Supreme Court upheld a Ninth Circuit Court of Appeals decision that public nuisance claims brought by cities and local governments against major oil companies could be pursued in state court. This ruling moves forward the lawsuits by the cities of San Francisco and Oakland, among others, against ExxonMobil, BP, Chevron, ConocoPhillips, and Shell in California state court over their roles in climate change driven sea level rise. In 2017, San Francisco filed the first of many lawsuits that seek to force the companies to fund a sea level rise abatement program that will be used to build sea walls and other structures to protect about $49 billion in public and private property sitting within six feet of the current sea level. Since 2017, 26 state and local governments, including the states of Connecticut, Delaware, Massachusetts, Minnesota, and Rhode Island; the District of Columbia, and 20 city and county governments in California, Colorado, Hawaii, Maryland, New Jersey, New York, South Carolina, and Washington have filed similar lawsuits. The cities, states, and local governments brought public nuisance claims against the companies alleging the firms have known for decades that their products were accelerating global warming and instead of acting to reduce harm, the companies attempted to undermine climate science and mislead the public by claiming fossil fuel production is environmentally responsible. As the suits allege only public nuisance claims, San Francisco and Oakland stated explicitly that the cities are not seeking to impose any liability for the companies’ greenhouse gas emissions or stop the companies from producing fossil fuels. In response to the lawsuits, the oil companies transferred the suits to federal court. In 2018, U.S. District Court Judge William Alsup denied the cities’ request to move the cases back to state court. Judge Alsup then dismissed the suits, saying that emissions control is up to policymakers, not judges. The Supreme Court’s decision not to review the Ninth Circuit’s ruling sends the issue back to Judge Alsup to reconsider the case and decide whether there are any other grounds to hear it in federal court, meaning he could dismiss the suits for a second time.

For more information see:

https://www.sfchronicle.com/local/article/Lack-of-Supreme-Court-review-doesn-t-settle-16247489.php

https://www.oaklandcityattorney.org/PDFS/SF%20Climate%20Change%20Complaint.pdf

https://www.climatedocket.com/2017/09/20/san-francisco-oakland-lawsuit-climate-change-bp-exxon-shell/

J. FOREST RESOURCES

  1. California Senators Introduce Bill That Would Expand Protected Wilderness In The State By More Than One Million Acres.

A package of bills in the United States Senate would expand protections for more than one million acres of public land in California. The bill, introduced by California Senator Alex Padilla and co-sponsored by fellow California Senator Diane Feinstein, passed through the House of Representatives in February. This designation prohibits development, vehicles, and commercial activity. The package of legislation would also designate as wilderness about 262,000 acres of public lands in northwest California and 288,000 acres of land in the Los Padres National Forest and Carrizo Plain National Monument, as well as establish a 400-mile-long Condor National Scenic Trail stretching from Los Angeles to Monterey County. The designation of land as “wilderness” is the most restrictive classification of federal land and would limit commercial activities such as logging, mining, and ranching. The protections in this bill are almost entirely limited to federal lands and not private holdings.

For more information see:

https://www.latimes.com/california/story/2021-05-03/california-could-get-600-000-acres-of-new-federally-protected-wilderness

https://www.padilla.senate.gov/in-the-news/san-francisco-chronicle-padilla-proposes-increased-protection-for-1-million-acres-of-california-wilderness/

K. CULTURAL RESOURCES MANAGEMENT

  1. Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.

The appellate court reversed the trial court’s ruling and directed the City of Berkeley to grant plaintiffs Ruegg & Ellsworth and Frank Spenger Company’s development application. Plaintiffs applied to the City of Berkeley for approval of a mixed-use development pursuant to Government Code section 65913.4, which was created by Senate Bill 35 (“SB 35”) and provides for streamlined, ministerial approval of affordable housing projects meeting specified requirements and conditions. Berkeley denied the application stating that SB 35 does not apply to the project because the law does not apply to sites where the development would require the demolition of a historic structure that was placed on a national, state, or local historic register. The proposed site is part of a three-block area the Berkeley Landmarks Preservation Commission designated a City of Berkeley landmark in 2000, as the location of the West Berkeley Shellmound (“Shellmound”). Shellmounds were “sacred burial sites for the average deceased mound-dweller,” slowly constructed over thousands of years from daily debris and artifacts left by the tribelet communities that lived on the site. The Shellmound is listed in the California Register of Historical Resources and was built in 3,700 B.C., although nothing remains of the Shellmound above ground. The appellate court therefore found that the Shellmound is not a “structure” within the meaning of SB 35 and therefore the project does qualify for streamlined, ministerial approval.

L. ENVIRONMENTAL ENFORCEMENT

  1. Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812.

In a case involving a beachfront property owner’s violation of provisions of the California Coastal Act, the Second District Court of Appeal upheld the imposition of a nearly $4.2 million fine. A previous owner of the beachfront Malibu property violated a five-foot-wide public coastal access easement by building private accessory structures that included a gate blocking public access. After asking the owners to remove the structure for years, the Commission served the owner with notice of intent to issue a cease-and-desist order and warned that the owner could face penalties. The owner refused and the Commission imposed a substantial fine. In response, the owner filed a writ of mandate asserting that the fine was unconstitutional. The court did set aside the fine, finding that though the fine was constitutional the owner’s due process rights were violated because the Commission did not give adequate notice of the amount of the penalty. The court of appeal upheld the finding of constitutionality and reversed the trial court’s finding of due process violations. The court of appeal ruled that the Commission had given the owner notice of the maximum fine permissible under section 30821, and it held that this was sufficient to satisfy the owner’s due process rights. Additionally, the court found that the informal hearing procedures used by the Commission gave the owners adequate protection, and the commissioners were not shown to be biased adjudicators. Section 30821 allows for a penalty of $11,250 for each day the violation persists for up to five years, meaning potential fines could exceed $20 million.

  1. California Attorney General Rob Bonta Announced Expansion of Environmental Justice Bureau.

On April 28, 2021, California Attorney General Rob Bonta announced an expansion of the California AG’s Bureau of Environmental Justice (“Bureau”). The Bureau was established in 2018 and will expand to include eleven attorneys. Bonta explained that the expansion will allow the office to increase oversight and take on more cases. The Bureau focuses on oversight and enforcement work, specifically:

  • Ensuring compliance with the California Environmental Quality Act (“CEQA”) and land use planning laws;
  • Penalizing and preventing illegal discharge to air and water from facilities located in communities already burdened disproportionately with pollution;
  • Eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
  • Remediating contaminated drinking water; and
  • Challenging the Federal Government’s actions that repeal or reduce public health and environmental protections.

For more information see:

https://oag.ca.gov/news/press-releases/attorney-general-bonta-announces-expansion-bureau-environmental-justice

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Diane G. Kindermann (2015-2021) and William W. Abbott (2004-2021) were again selected for the Northern California Super Lawyers List in the practice areas of Land Use and Zoning law. More information is available at  http://www.superlawyers.com/california-northern/.

Abbott & Kindermann, Inc. is also pleased to announce that Sacramento Magazine in its August publication has recognized Bill Abbott again as a top attorney in land use for 2021.   Additionally, Bill is also recognized by Best Lawyers-Northern California (2009-2022) again in the field of land use.

Abbott & Kindermann has been serving private and public clients in California on land use, environmental, and real estate matters for more than 25 years.

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Diane Kindermann, Bill Abbott, Glen Hansen or Dan Cucchi at Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Welcome to Abbott & Kindermann, Inc.’s August Real Estate Law Action News. This summary provides brief updates on recent real estate cases, legislation, and administrative actions in 2021.

  1. PREVIOUS UPDATE

To read the April 2021 Real Estate Action News post, click here:

https://blog.aklandlaw.com/2021/04/articles/takings-inverse-condemnation/april-monthly-real-estate-law-action-news/

  1. UPDATE

A. GENERAL REAL ESTATE

*There are no new cases in this section at this time.*

B. COMMON INTEREST DEVELOPMENTS

  1. Smart Corner Owners Assn. v. CJUF Smart Corner LLC (2021) 64 Cal.App.5th 439.

Plaintiff Smart Corner Owners Association (“Association”), a nonprofit mutual benefit corporation, filed a construction defect suit against the developers of the Smart Corner condominium tower (“Developers”). The trial court held that because the Association did not receive a 50 percent majority approval before filing the suit, as required by the governing declaration of covenants, conditions, and restrictions (“CC&Rs”), summary judgment was proper in favor of the Developers. After the Association filed their appeal, the California Legislature enacted Civil Code section 5986. This section renders prelitigation member vote requirements, like the one at issue in this case, null and void and therefore abrogates the defense that noncompliance with such conditions defeats a construction defect claim. The court of appeal ruled that the provisions on retroactively applying the statute apply to this case and therefore overruled the trial court’s decision. The court of appeal also held that the prelitigation vote requirement violates fundamental state public policy as an independent ground for reversal.

C. REAL ESTATE CONTRACTS & TRANSACTIONS

  1. Stancil v. Superior Court (2021) 11 Cal.5th 381.

In a case involving an unlawful detainer complaint, the California Supreme Court held that a defendant may not use a motion to quash service of summons to dispute the truth of the allegations contained in the complaint. Defendant, a tenant of the Docktown marina area of the City of Redwood City (“City”), filed a motion to quash after receiving an unlawful detainer complaint from the City. The defendant asserted that the City was not a proper plaintiff and that only the port department had jurisdiction over Docktown and the authority to sue him in unlawful detainer. A motion to quash service of summons permits a defendant to challenge personal jurisdiction where the summons is improper or the statutory requirements for service of process are not fulfilled without waiving the right to defend on the merits or risking entry of default. Following a hearing on the motion, the superior court denied Defendant’s motion to quash and concluded his challenge to the City’s complaint had to be raised on demurrer. The Court of Appeal denied his challenge of the superior court’s order and defendant filed petition of review with the California Supreme Court. The Supreme Court granted defendant’s petition but limited the issue to whether a motion to quash service of summons is the proper remedy to test whether a complaint states a cause of action for unlawful detainer.

The Supreme Court affirmed the lower court decision, concluding that a motion to quash is not the proper procedure to litigate the merits of an unlawful detainer claim. The court explained that, given society’s interest in swiftly resolving the balance between a tenant’s right to enjoy leased real property without disturbance and a landlord’s right to ownership income, proceedings under the unlawful detainer statutes are limited in scope and demand strict adherence to the statutes’ procedural requirements. The court explained that rather than expanding the limited scope of motions to quash in the unlawful detainer context, the purpose and rationale of these statutes reinforces the need for such limitations. Therefore, a motion to quash under the unlawful detainer act is a limited procedural tool to contest personal jurisdiction over the defendant where the statutory requirements for service of process are not fulfilled. The court emphasized that Defendants may use a variety of other procedural tools instead of a motion to quash to challenge the complaint as inadequate or contest the truth of the complaint’s allegations, such as a demurrer, a motion to strike, an answer, a motion for judgment on the pleadings, or a motion for summary judgment.

  1. Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57.

In a case involving a breach of contract claim, the appellate court affirmed the trial court’s decision to hold that the claim was barred due to the expiration of the statute of limitations and denied Plaintiff’s appeal of the awards of attorney fees. On appeal, Plaintiff argued that the trial court improperly characterized her cause of action and ignored disputes of material fact concerning when the limitations period began to run. Plaintiff also alleged that the trial court abused its discretion in awarding fees relating to a defendant’s cross-complaint against the Plaintiff’s broker and real estate agent. Defendant REL-BC, a limited liability corporation (“LLC”), also appealed the trial court’s decision to deny its request for fees because the LLC had been dissolved by the time of trial. The appellate court found that the trial court correctly concluded that the Plaintiff’s breach of contract claims was based on fraud and were therefore subject to the three-year statute of limitations prescribed by California Code of Civil Procedure § 338(d) and that the undisputed facts demonstrate that Plaintiff’s claims accrued more than three years before she filed suit. The appellate court also affirmed all fees disputed by the Plaintiff but reversed the trial court’s decision to deny REL-BC their requested attorney fees. The appellate court held that the dissolution of an LLC does not bar an award of attorney fees because the LLC continues to exist while winding up its affairs.

D. EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES

  1. Village Communities v. County of San Diego, 2021 U.S. Dist. LEXIS 20794 (S.D. CA).

Plaintiff, a real estate development company, filed suit against the County of San Diego for denying Plaintiff’s modifications to its proposed development project located in an unincorporated area of San Diego County. The County denied Plaintiff’s modified proposal after the County Planning Department determined that the modifications “substantially revised the proposed project and that staff had various concerns about its scope.” The area is in a high wildfire risk area and the modifications to the project proposal were over whether or not the County had legal authority to require fuel modification easement rights to allow for entry onto properties and control vegetation on 50 adjacent lots.

Plaintiff sought an administrative mandamus action against the County alleging four causes of action: (1) Takings; (2) Due Process; (3) Equal Protection; and (4) an Administrative Mandamus claim directing the County to approve the Project. The County moved to dismiss each claim. On the Takings claims, the Court found that Plaintiff’s claims, “plausibly state prima facie inverse condemnation and temporary takings claims based on the unconstitutional conditions doctrine.” As such, the Court denied the County’s attempt to dismiss the Takings Claims. On the Due Process claim, the Court held that Plaintiff had a viable claim for substantive due process because Plaintiff presented a reasonable claim as to whether the easements were “needless and redundant under existing authority.” The Court then held that Plaintiff had a viable Equal Protection claim because Plaintiff provided the Court with a list of other projects the County approved where there were no additional easements requested. On the Administrative Mandamus claim, the Court granted the County’s request for dismissal. The Court held that recently the Supreme Court held that a plaintiff no longer has an obligation to also seek mandamus relief in order to prosecute its takings claim. The Court further reasoned that because the sought after mandamus would infringe on the separation of powers by directing the County how to exercise its discretion over the Project, the Court must deny the request for an administrative mandamus.

  1. Anniversary Mining Claims, LLC v. United States (9th Cir. June 2, 2021, No. 20-15643) 2021 U.S. App. LEXIS 16409.

Plaintiff Anniversary Mining Claims (“AMC”) appealed the trial court’s decision to dismiss their complaint under the Quiet Title Act (“QTA”) with prejudice for lack of subject matter jurisdiction. The appellate court affirmed in part, reversed in part, and remanded the case to the trial court by affirming the dismissal without prejudice. The parcel in question (“Property”) contained 221 acres of patented mining claims and was landlocked by federal land. The original owners of the Property constructed a road over federal land to connect the Property to a railroad and highway, but the government condemned a portion of that road in 1952 to build what is now Nellis Air Force Base.  Following that taking, the owners of the Property began using the Anniversary Mine/Narrows Road (“Anniversary Mine Road”) as a means of ingress and egress to the Property. In 2014 and 2015, the federal government prohibited AMC from using or improving the Anniversary Mine Road for commercial purposes.

The appellate court affirmed the dismissal of the complaint because the trial court correctly construed the complaint as asserting AMC’s right to access the Anniversary Mine Road as a member of the public. Under the QTA, the United States waives its sovereign immunity only if the complaint “set[s] forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property . . . .” 28 U.S.C. § 2409a(d). Because the right asserted by AMC in their complaint is vested in the public generally, it does not give AMC a property interest to which title can be quieted. In reversing the decision to dismiss with prejudice, the appellate court explained that an easement by necessity is an interest in real property that can be asserted under the QTA and that despite the deficient pleading, the court could imagine circumstances in which the condemnation could create an easement by necessity. The appellate court directed that on remand, AMC must plead with specificity how the 1952 condemnation satisfies all the elements required to create an easement by necessity over the Anniversary Mine Road.

  1. Husain v. California Pacific Bank (2021) 61 Cal.App.5th 717.

On appeal from a decision granting California Pacific Bank (“Bank”) a prescriptive easement over Plaintiff Husain’s property, the appellate court upheld the trial court’s decision on the grounds that the Bank’s use of the burdened property was open, notorious, continuous, and hostile for more than five years. Plaintiff’s main contention on appeal was that the Bank’s use of the burdened property permissive and remained permissive unless and until the previous owner of the burdened property, JPMorgan, repudiated or revoked that permission. The appellate court rejected this argument and stated that the facts undisputedly established that the Bank never requested or received permission from JPMorgan to use the burdened property. The court emphasized that a clear, express repudiation is required to make a formerly permissive use hostile. Additionally, the appellate court denied any claim to equitable relief because Husain was put on notice of the potential prescriptive easement over the property through receipt of initial disclosure of the Bank’s claim to the easement and his signing of an indemnification agreement with JPMorgan over potential liability from said easement.

  1. Self v. Cher-Ae Heights Indian Community of Trinidad Rancheria (2021) 60 Cal.App.5th 209.

In a case involving tribal sovereign immunity to establish a public easement for coastal access, The Court of Appeal affirmed the trial court’s dismissal of the tribe’s quiet title action to establish a public easement for coastal access. The question before the Court was whether sovereign immunity barred quiet title actions for public easements pertaining to coastal rights of access on properties owned by Indian tribes. The Court of Appeal held that Congress did not extend the common law exception for state sovereign immunity to tribal immunity for land acquisition. As such, the Court found that tribal sovereign immunity bars quiet title actions such as those found in the facts of this case. The Court held that Plaintiffs’ arguments for a common law exception for “immovable property” was unmoving and unpersuasive. The Court stated that consistent with the decades of Supreme Court precedent before this Court, the Panel will defer to Congress to determine the limits of sovereign immunity. The Court found that Congress did not extend such a limit to tribal communities for the purposes of land acquisition under federal tribal policy. As such, the Court of Appeal affirmed the trial court’s dismissal of the tribe’s quiet title action.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

I.          Introduction.

On June 23, 2021, the United States Supreme Court held in a 6-3 ruling written by Chief Justice John Roberts in Cedar Point Nursery v. Hassid, 592 U.S. ___ (2021) (Opinion), that a California regulation that grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization by requiring the employer to allow union organizers onto their property for up to three hours per day, 120 days per year, constitutes a per se physical taking under the Fifth and Fourteenth Amendments that warrants just compensation.

The decision is definitely controversial.  One pro-property rights professor declared that “Americans across the political spectrum have reason to be happy the Court denied the government sweeping power to mandate uncompensated invasions of private land.” (Ilya Somin, “Supreme Court’s Cedar Point property rights decision protects both sides,” The Hill (June 23, 2021)(link).)  However, other commentators are deeply concerned about the problems that could arise after Cedar Point:

[This decision] opens a Pandora’s box of terrible possibilities by casually throwing out decades of regulatory takings precedent in favor of an extremist, potentially limitless view on the rights of property holders. And it will be decades before most people even realize how much damage was done here.  (Elie Mystal, “Yesterday’s Union-Busting Supreme Court Decision Was a Segregationist Throwback,” The Nation (June 24, 2021)(link).)

Or, as another commentator opined: “With Cedar Point, the Supreme Court has handed business owners a loaded gun to aim at every regulation they oppose.” (Mark Stern, “The Supreme Court’s Latest Union-Busting Decision Goes Far Beyond California Farmworkers,” Slate (June 23, 2021)(link).)

This article examines the factual and procedural background of the Cedar Point case; the Court’s takings law prior to the decision; the holding issued by the Court and responses by the dissent; and the potential implications of the majority opinion on the ability of governmental entities to access private property for a variety of reasons.

II.          Factual and Procedural Background of Cedar Point.

 The California Agricultural Labor Relations Act of 1975 (“Act”) gives agricultural employees a right to self-organization and makes it an unfair labor practice for employers to interfere with that right. (Labor Code §§1152, 1153(a).)  Based on the self-organization rights of employees under the Act, the Agricultural Labor Relations Board (“Board”) promulgated a regulation that provides “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.” (8 Cal. Code Regs. §20900(e)(1).)  That regulation allows a labor organization to “take access” to an agricultural employer’s property for up to four 30-day periods in one calendar year. (8 Cal. Code Regs. §§20900(e)(1)(A)–(B).)  Two organizers per work crew (plus one additional organizer for every 15 workers over 30 workers in a crew) may enter the employer’s property for up to one hour before work, one hour during the lunch break, and one hour after work.  (8 Cal. Code Regs. §§20900(e)(3)(A)–(B), (4)(A).)  Organizers may not engage in disruptive conduct, but are otherwise free to meet and talk with employees as they wish.  (8 Cal. Code Regs. §§20900(e)(3)(A), (4)(C).)

Plaintiff Cedar Point Nursery is a strawberry grower in northern California that employs over 400 seasonal workers and around 100 full-time workers, none of whom live on the property.  Plaintiff Fowler Packing Company is a Fresno-based grower and shipper of table grapes and citrus that has 1,800 to 2,500 employees in its field operations and around 500 in its packing facility.  None of Fowler’s workers live on the premises.

Believing that the union would likely attempt to enter their property again in the near future, these plaintiff growers filed suit in U.S. District Court against several Board members in their official capacity.  The growers alleged that the access regulation effected an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. The growers requested declaratory and injunctive relief prohibiting the Board from enforcing the regulation against them.  The District Court denied the growers’ motion for a preliminary injunction and granted the Board’s motion to dismiss on the ground that the access regulation was not a per se physical taking because it did not “allow the public to access their property in a permanent and continuous manner for whatever reason.”  A 2-1 panel of the Court of Appeals for the Ninth Circuit affirmed.  By a sharply divided vote, the full Ninth Circuit denied rehearing the matter en banc.  The U.S. Supreme Court granted certiorari.

III.          Overview Of Supreme Court Takings Law Prior To Cedar Point.

 The Takings Clause in the Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” (U.S. Const. amend. V.)  The Takings Clause is made applicable to the States through the Fourteenth Amendment.  (Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241 (1897).)  It does not prohibit the taking of private property, but instead is designed “to secure compensation in the event of otherwise proper interference amounting to a taking.” (First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314-315 (1987).)

The “paradigmatic” taking that requires just compensation is a “direct government appropriation or physical invasion of private property.” (Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).)  That category of “physical takings” cases “requires courts to apply a clear rule.” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323 (2002).)

The Court has also recognized “regulatory takings” that may be compensable under the Fifth Amendment.  The original statement comes from Justice Holmes, who wrote in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922):  “[I]f regulation goes too far it will be recognized as a taking.”   The Court has recognized four (4) different theories under which a government regulation may be challenged under the Takings Clause.

Two types of regulatory takings are deemed per se takings.  Those are (1) where government requires an owner to suffer a permanent physical invasion of her property (see e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-438 (1982)); and (2) where regulations “completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” (Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992).)

For regulatory actions that do not involve those two per se takings, the Court has applied two other alternative approaches.  The first non-per se approach to regulatory takings is the factored analysis in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978), where courts examine the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action.  (See e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980).)  In the majority opinion in Cedar Point, Chief Justice Roberts noted that “this Court has generally applied the flexible test developed in Penn Central” to determine “whether a use restriction effects a taking.”  (Emphasis added.)  (See also Lingle v. Chevron U.S.A., supra, 544 U.S. 538-539 [Penn Central factors are “the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules” (emphasis added)]; Palazzolo v. Rhode Island, 533 U.S. 606, 633 (O’Connor, J., concurring) [“Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings” (emphasis added)]; Koontz v. St. Johns River Water Management District, 570 U.S. 595, 621 (2013) (Kagan, J., dissenting) [“[c]laims that government regulations violate the Takings Clause by unduly restricting the use of property are generally ‘governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104, (1978)’” (citations omitted)(emphasis added).])

The second non-per se approach to regulatory takings involves the heightened standard of review in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).  Under Nollan/Dolan, “a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a ‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed land use.”  (Koontz v. St. Johns River Water Management District, supra, 133 S.Ct. at 2591.)  The factored analysis in Penn Central is considered more favorable to the government, while the Nollan/Dolan scrutiny is generally more deferential toward property owners.

IV.          The Court Holds In Cedar Point That California’s Access Regulation Is A Per Se Physical Taking.

The key issue in Cedar Point was which takings analysis should be applied to determine whether the challenged access regulation constituted a taking under the Fifth Amendment.  The District Court, the Ninth Circuit and Justice Breyer (in dissent) held that the Penn Central factored analysis should apply.  The majority disagreed.  Writing for the majority, the Chief Justice explained that the “essential question” is:

whether the government has physically taken property for itself or someone else – by whatever means – or has instead restricted a property owner’s ability to use his own property.  [Citation.]  Whenever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.

The Chief Justice reasoned that “[o]ur cases establish that appropriations of a right to invade are per se physical takings, not use restrictions subject to Penn Central.”  He further explained:

The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.  The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year.  Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.

The Chief Justice stated that the “right to exclude” is “‘one of the most treasured’ rights of property ownership,” “is ‘a fundamental element of the property right,’ and is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’”  Thus, he concluded, “government-authorized invasions of property … are physical takings requiring just compensation.”

Contrary to the Ninth Circuit and the dissent, the majority in Cedar Point held that the access regulation was a taking even if the appropriation of the property owners’ access right was not permanent or continuous.  The Chief Justice explained:

The government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.  The regulation appropriates a right to physically invade the growers’ property – to literally “take access,” as the regulation provides.  Cal. Code Regs., tit. 8, §20900(e)(1)(C).  It is therefore a per se physical taking under our precedents.

The Chief Justice added that “we have held that a physical appropriation is a taking whether it is permanent or temporary,” and “we have recognized that physical invasions constitute takings even if they are intermittent as opposed to continuous.”

The majority rejected the argument that latitude toward temporary invasions is a practical necessity for government in our complex modern world.  The Chief Justice responded:  “With regard to the complexities of modern society, we think they only reinforce the importance of safeguarding the basic property rights that help preserve individual liberty, as the Founders explained.”

In dissent, Justice Breyer was joined by Justices Kagan and Sotomayor, and argued that the access regulation “does not ‘appropriate’ anything; it regulates the employers’ right to exclude others.”  Justice Breyer added:

[O]ur prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.” See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434 (1982). In my view, the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical.

The dissent argued that there must be a permanent right of access or occupation, rather than a temporary limitation on the right to exclude, before a per se taking automatically arises.  Justice Breyer concluded that “[a] regulation that provides temporary, not permanent, access to a landowner’s property, and that does not amount to a taking of a traditional property interest, is not a per se taking. That is, it does not automatically require compensation. Rather, a court must consider whether it goes ‘too far’ under the Penn Central analysis.”  He added:  “[M]ost government action affecting property rights is analyzed case by case under Penn Central’s fact-intensive test.”

V.          Implications Of The Court’s Decision On Various Governmental Demands For Access To Private Property.

In dissent, Justice Breyer considered “the large number of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto (or an ‘invasion of’) a property owner’s land.”  The majority opinion addressed that consideration, and the warnings from the defendant Board that treating the access regulation as a per se physical taking will endanger a host of state and federal governmental activities involving entry onto private property.  The responses to those warnings in the majority opinion provide a dimly-lit window into how the Court may respond in future cases to at least four types of government demands for access to private property.

A.          Private Property Opened To The Public.

First, the majority distinguished PruneYard Shopping Center v. Robins, supra, 447 U.S. 74, which held that there was no compensable taking where the California Constitution protected the right to engage in leafleting at a privately owned shopping center.  Chief Justice Roberts rejected the argument expressed by the dissent that PruneYard shows that limited rights of access to private property should be evaluated as regulatory takings rather than per se takings.  His rationale was that, unlike the growers’ properties in this case, the property in PruneYard “was open to the public.”  He explained:  “Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.”  In that context, the Chief Justice cited Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964) as “rejecting [the] claim that provisions of the Civil Rights Act of 1964 prohibiting racial discrimination in public accommodations effected a taking,” where the Act was authorized by the Commerce Clause power.  In Heart of Atlanta, the Court relied, inter alia, on Legal Tender Cases, 79 U.S. 457, 551 (1870), which held that congressional acts authorizing the use of paper money as the legal tender in the payment of all debts were not prohibited under the Fifth Amendment, because the Takings Clause “has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power,” and because the Takings Clause “has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals.”])  An open question after Cedar Point is whether that “direct appropriation” vs. “consequential injuries” dichotomy will play a part in future cases involving government access to private property.

The majority in Cedar Point certainly made a significant distinction between private property that is “closed to the public” and private property that is “generally open to the public” in determining whether a governmental appropriation of the right to invade is a compensable per se taking.  That distinction may address the concern of some commentators that the case before the Court threatened “to blast a giant hole through the heart of anti-discrimination law,” including federal law that forbids “stores, restaurants and other public accommodations to refuse service on the basis of a customer’s race,” and state laws that “protect LGBTQ persons from similar discrimination.”  (Aaron Tang, “Just one Supreme Court case could blow up unions, child protection and anti-discrimination law,” The Washington Post (March 18, 2021)(link ).)  However, the difference between a private property that is “closed to the public” and “generally open to the public” may not be altogether clear, and will certainly be explored in future cases.

B.         Trespasses v. Takings.

Second, Chief Justice Roberts addressed physical invasions by government onto private property that amount to a trespass, rather than those that constitute a taking, and reaffirmed that the Court was not jettisoning the “traditional trespass-versus-takings distinction.”  The distinction rests on the governmental intent.  The Chief Justice not only distinguished “isolated physical invasions, not undertaken pursuant to a granted right of access,” but also quoted Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329-330 (1922), as follows: “‘[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [the intent to take property].  Every successive trespass adds to the force of the evidence.’”  (Brackets in original.)  In Cedar Point, the Chief Justice held that there was no “mere trespass” because the access regulation “grants a formal entitlement to physically invade the growers’ land.”  Thus, it appears that, under the majority’s view, the more often the government causes a physical invasion of private property, even without a formal determination of an intent to invade, the more a taking will exist since the evidence points to an intent on the part of the governmental entity to enter onto private property.  The dissent was not convinced. Justice Breyer asked: “[W]hat will count as ‘isolated’?  How is an ’isolated physical invasion’ different from a ‘temporary’ invasion, sufficient under present law to invoke Penn Central? And where should one draw the line between trespass and takings?”  That ambiguity and line-drawing will need to be clarified in future cases.

C.          Traditional Common Law Privileges Exception.

Third, the majority in Cedar Point recognized that “many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights.”  The court mentioned “pre-existing limitation[s] upon the land owner’s title,” “abat[ing] a nuisance” on the property, as well as traditional common law privileges such as public or private necessity, arresting or enforcing the criminal law under certain circumstances, and reasonable government searches that are consistent with the Fourth Amendment and state law.  According to the Chief Justice, there was no such limitations here because “no traditional background principle of property law requires the growers to admit union organizers onto their property.”  However, Justice Breyer asked “[j]ust what are [traditional common law privileges]?”  He further asked:  “Do only those exceptions that existed in, say, 1789 count? Should courts apply those privileges as they existed at that time, when there were no union organizers? Or do we bring some exceptions (but not others) up to date, e.g., a necessity exception for preserving animal habitats?”  Justice Breyer is correct in pointing out the ambiguity in the majority’s “traditional common law privileges” exception.  The question then, is how narrowly will the majority apply that exception in future cases.  Certainly the Chief Justice’s strong position regarding the importance of the property right here will play a part in the answer to that question.  He wrote:

We cannot agree that the right to exclude is an empty formality, subject to modification at the government’s pleasure. On the contrary, it is a “fundamental element of the property right,” [citation], that cannot be balanced away. … With regard to the complexities of modern society, we think they only reinforce the importance of safeguarding the basic property rights that help preserve individual liberty, as the Founders explained.

D.          Access As A Condition Of Receiving “Certain Benefits.”

Fourth, Chief Justice Roberts also explained that “the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.”  He includes “benefit[s] such as a permit, license, or registration on allowing access for reasonable health and safety inspections.”  In such situations, the government must satisfy the heightened scrutiny of “essential nexus” and “rough proportionality” under Nollan/Dolan. The Chief Justice explained: “When the government conditions the grant of a benefit such as a permit, license, or registration on allowing access for reasonable health and safety inspections, both the nexus and rough proportionality requirements of the constitutional conditions framework should not be difficult to satisfy.”  The access regulation here is unlike standard health and safety inspections because the regulation “is not germane to any benefit provided to agricultural employers or any risk posed to the public.”  Thus, the Chief Justice’s discussion appears to limit the “certain benefits” language to benefits enjoyed by the property owner, and not general benefits for society as a whole.  That is consistent with the majority’s application of the Nollan/Dolan scrutiny to cases falling within that “benefits” exception.  However, ambiguities remain.  Justice Breyer asked in dissent:  “[W]hat is the scope of the phrase ‘certain benefits’?”  He notes that “[m]yriad regulatory schemes” based on benefits “depend upon intermittent, temporary government entry onto private property.”  Therefore, Justice Breyer further asks:  “So, if a regulation authorizing temporary access for purposes of organizing agricultural workers falls outside of the Court’s exceptions and is a per se taking, then to what other forms of regulation does the Court’s per se conclusion also apply?”  Thus, significant ambiguities remain after Cedar Point regarding the constitutionality of temporary access for government inspectors to perform health and safety inspections that are designed to protect workers or renters that are invited onto the private property by the property owner (even if the general public is not allowed), where the “benefit” to the property or its owner is not readily apparent, and where the inspections are designed to protect those workers and renters.  Future caselaw will need to flesh out that ambiguity.

By tying the right of access to a permit or license that satisfies Nollan/Dolan, the Court may alleviate the alarm that some commentators had that the outcome in Cedar Point could threaten “state laws that permit child protection inspectors to make unannounced home visits” or hamper “nursing home visits and food safety inspections.”  (Tang, supra.)  Prior to the decision being issued, unions and others had argued that “ruling for the businesses could threaten regulations that allow the government to access private property to conduct workplace health and safety inspections, among other things.”  (Kate Cimini, “Supreme Court limits California union recruiting in favor of property rights,” CalMatters (June 24, 2021)(link).)

After the Court’s decision was issued, one commentator stated that the decision nevertheless “undermines the broader legal framework that permits the government to impose all manner of regulations on private property, including workplace safety laws and nondiscrimination requirements.” (Stern, supra.)  Other commentators exclaimed that the ruling “could make it more difficult for the government to allow temporary access” in areas other than union organizers seeking to reach workers.  (Ariane de Vogue and Veronica Stracqualursi, “Supreme Court rules California must pay private businesses to allow union access,” CNN (June 23, 2021)(link).)  Nikolas Bowie, Assistant Professor of Law at Harvard University, similarly opined:  “Antidiscrimination laws ‘take’ employers’ ‘right to exclude’ workers of color, pregnant workers, and LGBTQ+ workers.  Antiretaliation laws ‘take’ employers’ ‘right to exclude’ whistleblowers and workers who complain of harassment.  Fair housing laws ‘take’ landlords’ ‘right to exclude’ renters of color, families, and renters with vouchers.  Rent control laws ‘take’ landlords’ ‘right to exclude’ renters unable to afford market rates.  Endangered species laws ‘take’ landowners’ ‘right to exclude’ conservationists.  Environmental laws ‘take’ landowners’ ‘right to exclude’ inspectors who are needed to enforce their restrictions.”  (Bowie, Niko [@nikobowie] Twitter, June 23, 2021 (link).)

Those examples cited by such commentators may include private property that is open to the public, and may include scenarios in which there are “certain benefits” that are provided by the governmental agency in exchange for which the private property owner must allow access to the property, provided the access that is demanded satisfies the heightened scrutiny under Nollan/Dolan.  However, in cases where third parties are invited on to the property by the owner but the property is still not considered ‘open to the public,’ such as single-family or multi-family housing or employment on private property, will a future Court conclude that involuntary government inspections involve restrictions on the “use” of private property that are governed by the factored analysis in Penn Central?  The decision in Cedar Point is not clear.

These exceptions to the general rule that were described by the Chief Justice in Cedar Point significantly limit the impact of the Court’s holding that “appropriations of a right to invade are per se physical takings, not use restrictions subject to Penn Central.”  However, even Professor Ilya Somin, who believes that “Cedar Point is a major step forward for constitutional property rights,” recognizes that the scope of the exceptions listed by the Chief Justice to its holding “isn’t entirely clear and will likely be a subject of future litigation.”  (Somin, supra.)

VI.          Conclusion.

Defending the “right to exclude” others from private property as “‘one of the most treasured’ rights of property ownership” and “‘one of the most essential sticks in the bundle of rights that are commonly characterized as property,’” the majority in Cedar Point held that “government-authorized invasions of property … are physical takings requiring just compensation.”  However, many questions remain about the scope of the holding in the decision.  The case certainly opens up new questions regarding the legality of many government inspection regimes involving private property.

Glen Hansen is Senior Counsel and Daniel Cucchi is Senior Associate at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.