By William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi
Welcome to Abbott & Kindermann, Inc.’s July Environmental Action News – Part 1. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2020.
1. PREVIOUS MONTH’S UPDATE
To read the June 2020 Environmental Action News post, click here: https://blog.aklandlaw.com/2020/06/articles/ak-news/land-use-law-blog-june-environmental-action-news/
2. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There is one case pending at the California Supreme Court. The case and the Court’s summary are 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?
A. CALIFORNIA WATER RIGHTS AND SUPPLY
1. Modesto Irrigation Dist. v. Tanaka (2020) 48 Cal.App.5th 898.
The California Court of Appeal held that a farm retained riparian rights even though it was no longer contiguous to the river. Riparian rights can continue when land is subdivided, creating parcels that are no longer contiguous to the water. When determining intent to retain riparian rights for land severed from the stream, courts must consider whether the parties intended the grantee to receive riparian rights at the time of the sale. The Court reasoned that when the owner’s grandfather purchased the subdivided parcel that had been part of a larger riparian tract in 1890, the parties would have understood that riparian rights were encompassed by the broad language of the deed.
B. WATER QUALITY
1. The State Water Resources Control Board Releases Proposed Rule Modifying The General Permit For Suction Dredge Miners.
In June 2020, the State Water Resources Control Board (“SWRCB”) released a proposed rule modifying the NPDES Suction Dredge Mining General Permit. Public comments on the modification are due by August 24, 2020. Suction dredge miners are required to obtain a NPDES permit under Section 402 of the Clean Water Act (“CWA”). Under the modifications to the permit, a party must pay a fee of $2,572 to the SWRCB, further implement best practices so as not to harm the existing environment where possible, and refrain from discharging specific effluent materials during mining procedures. The modifications further limit areas where miners are able to dredge year round. SWRCB relies on the list provided in Section 303d of the CWA and states that under the modified permit a miner is prohibited from dredging areas where any of the 303d metals are found in a watershed. SWRCB will take public comments on the modified permit until June 29, 2020 and release a finalized permit in late 2020 or early 2021.
For more information see:
2. San Diego Unified Port District v. Monsanto, 2020 U.S. Dist. LEXIS 52699 (S.D. Cal., March 26, 2020).
The honorable Judge William Hayes granted Monsanto’s motion to dismiss the suit against them brought by San Diego Unified Port District (“the District”). The District brought suit against Monsanto for the corporation’s alleged continuing public nuisance contamination of San Diego Bay and the City of San Diego’s municipal stormwater system. The District and City alleged that Monsanto was responsible to pay damages pursuant to the City’s public nuisance ordinance for violations of CWA and CERCLA resulting from Monsanto discharging polychlorinated biphenyl (“PCB”) chemicals known to be cancerous by the EPA. In Monsanto’s motion to dismiss, the company alleged that the District failed to prove where Monsanto was obligated to respond or monitor for PCBs under its Stormwater Permit and where the District has been injured as a result of the alleged release of PCBs into San Diego Bay. On the first cause of action, Judge Hayes held that the District had demonstrated the existence of PCB chemicals in the waterways around San Diego but failed to prove where Monsanto was obligated to mitigate for PCBs under their stormwater permit. On the second cause of action, Judge Hayes held that the District failed to prove injury allowing for redress. As such, the court granted Monsanto’s motion to dismiss.
1. Marin County Wetlands Receive Funding For Much Needed Restoration.
In June, the California Coastal Conservancy backed the Novato Wetlands restoration with an allocation of more than $1.4 million from Proposition 68 funds. This new habitat project is part of the larger Hamilton Wetlands Restoration Project and intends to create workforce training and education for Marin County residents. The program aims to restore 177 acres of wetland and tideland marsh habitat by focusing on invasive plant removal and performing adaptive management of seasonal wetlands.
For more information see:
D. AIR QUALITY AND CLIMATE CHANGE
1. California Mandates Zero-Exhaust Big Rig Delivery Trucks Beginning in 2030 While Federal Government Prepares To Increase Zero-Exhaust Fleet Nationwide.
As California mandates a zero-exhaust big rig fleet for industrial transportation, the House Committee unveiled in its new Green Deal a plan to include a $500 billion benchmark for nationwide zero-exhaust fleets. Among auto manufacturers, there would be a total of 24 different options of long-haul truck models in the next three years. At the federal level, the House Committee on Transportation stated long haul GHG emissions accounts for 24 percent of total GHG emissions and a plan to decarbonize this industry supports statewide RPS planning as well as reduces nationwide climate concerns. Under the California mandate, 300,000 EV or hydrogen powered trucks must be road bound by 2035 and 100,000 by 2030. Many California residents in opposition to the mandate point out the lack of battery charging locations and the length of time necessary to fully charge an EV truck. Meanwhile other states nationwide are looking to California as a model for adoption of similar mandates in the future.
For more information see:
2. CPUC Finalizes Penalties Against PG&E For Liability In 2017 and 2018 Fires.
In May 2020, CPUC fined PG&E $1.937 billion in penalties resulting from the 2017 and 2018 wildfires that swept across much of PG&E’s territory. In addition to the penalty, the settlement agreement included a return of any shareholder incentives during the affected years to be returned as a credit to ratepayers, which is estimated to amount to $425 million in additional penalties. As part of CPUC’s investigation, the agency unveiled numerous counts of negligent practices by the utility causally escalating the wildfires during the 2017 and 2018 fire season. In addition to the CPUC’s investigation, PG&E pleaded guilty to 84 counts of involuntary manslaughter for the deaths associated with the Camp Fire. The Attorney General continues to prosecute the utility for criminal negligence.
For more information see:
3. Coalition for an Equitable Westlake v. City of Los Angeles (2020) 47 Cal.App.5th 368.
A complete analysis of this recent decision is posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/04/articles/ceqa/an-nod-filed-following-approval-of-a-vesting-tentative-map-runs-the-ceqa-statute-of-limitations-for-later-project-related-approvals/
4. Golden Door Properties LLC v. County of San Diego (2020) 50 Cal.App.5th 467
A complete analysis of this recent decision is posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/06/articles/ak-news/2020-ceqa-2nd-quarter-review/
E. RENEWABLE ENERGY
1. California Outlines A Roadmap For Renewable Hydrogen Production.
The Advanced Power Energy Program (APEP) recently completed a roadmap for the build-out of renewable hydrogen production in California to serve a broad range of applications in the energy and transportation sectors. This roadmap confirms the critical role that self-sustaining renewable hydrogen plays in decarbonization, and projects that California can reach this goal by the mid-2020s. The expansion of California’s hydroelectric capacity bolsters new construction of key infrastructure relevant to land use development. It also furthers the state’s aggressive 2030 RPS deadline to shift at least 60% of all energy consumption in the state to renewable resources.
For more information see:
2. CPUC Deploys Microgrid to Handle Wildfires.
With wildfire season looming, the CPUC has ordered large electric investor-owned utilities to deploy microgrids and resiliency projects meant to minimize the impact of power outages. This decision aims to ensure that utilities expedite deployment of back-up power for their customers if the utility calls for a public safety power shutoff. Under this decision, utilities must standardize the application processes for project approvals, expedite sign-offs on installed projects, speed interconnection through increased staffing, alter tariffs to higher value resilience, and amplify collaboration with local and tribal governments.
3. Uber Technologies Pricing Cases (2020) 46 Cal.App.5th 963.
Several taxi companies and taxi medallion owners filed suit against Uber Technologies, Inc., alleging violation of the Unfair Practices Act’s (UPA) prohibition against below-cost sales and, in turn, violation of the unfair competition law (UCL). The UPA makes it unlawful for any business to sell a product at less than the cost to the vendor, but does not apply to any service for which rates are established under the CPUC, or sold by a public utility corporation. Here, the CPUC had jurisdiction over Uber and conducted extensive regulatory proceedings with the company’s services. The court held that the exemption applies when the CPUC has jurisdiction to set rates, regardless of whether it has yet done so. Because the CPUC had rate-setting jurisdiction over the company, the court required dismissal of the below-cost sales claim, as well as the UCL claim which was derivative of the failed UPA claim.
F. ENDANGERED SPECIES
1. Pac. Coast Fed’n of Fishermen’s Ass’ns v. Ross, 2020 U.S. Dist. LEXIS 111732 (E.D. Cal., June 24, 2020).
The District Court denied petitioners Pacific Coast Federation of Fisherman’s Association’s (“Pacific Coast”) motion for preliminary injunction for the Shasta Dam operations. Pacific Coast sought a preliminary injunction against the U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”) for the pair of biological opinions issued examining the impacts to fish species associated with the long term operations of the Central Valley Project (“CVP”) and the State Water Project (“SWP”). Pacific Coast argued that the increased height to the Shasta and Keswick Dams violated species protections for affected salmonids under the ESA. After carefully reviewing the record, the Court denied the Pacific Coast’s motion for preliminary injunction. The Court reasoned that Pacific Coast failed to demonstrate there was a conclusive causal connection between the harm to protected species and the modifications to the dam. As the Court established, Pacific Coast and closely related case Cal. Natural Res. Agency v. Ross, 2020 U.S. Dist. LEXIS 72051, will have an opportunity to prove error in the biological opinions on the merits, but found that a preliminary injunction was not necessary.
2. California Fish And Game Commission Votes To Move Forward With Listing Two Subspecies of California Mountain Lion.
In April 2020, the Fish and Game Commission unanimously voted to move forward with listing the Central Coast and Southern California Mountain Lion species as endangered on the California Endangered Species List. The Center for Biological Diversity petitioned the Commission in June 2019 to list both subspecies of Mountain Lion because of their declining numbers and encroachment on critical habitat. The Commission recommended a listing of the species in February 2020. April’s vote triggered a 12-month review process to determine whether to list the species, though the species will benefit from protections under the California Endangered Species Act while being evaluated for final species status assessment. The Commission is currently evaluating the species for viability but stated early on that decline in the population as a result of car strike is perhaps the greatest threat to both subspecies.
For more information see:
G. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
1. Bark v. United States Forest Serv., 958 F.3d 865 (9th Cir., 2020).
The Ninth Circuit reversed and remanded a suit between Bark et. al and the United States Forest Service (“USFS”) holding that the district court improperly granted summary judgment in favor of USFS. USFS determined an environmental impact statement on the Crystal Clear Restoration Project pursuant to NEPA was not necessary, leading Bark et. al to file suit challenging USFS’ decision. The Ninth Circuit panel held that the actions of USFS were arbitrary and capricious because the effects of the project were highly controversial triggering a mandate to perform an EIS, and USFS failed to provide a meaningful justification for the cumulative impacts of the project. As such, the Court remanded the case back to USFS to conduct an EIS with instructions.
H. MINING, OIL, AND GAS
1. Mission Linen Supply v. City of Visalia, 2020 U.S. App. LEXIS 17441 (9th Cir., June 3, 2020).
The Ninth Circuit affirmed the district court’s equal allocation of future recovery costs between the City of Visalia and Mission Linen Supply in a CERCLA action. The court held that district court did not abuse its “broad discretion.” Instead, it concluded that the district court permissibly focused on the factor of geographic distribution and attributed most responsibility for on-site pollution to Mission and most responsibility for off-site pollution to the City. The court had discretion to determine what factors to consider when allocating costs and responsibility.
2. Atlantic Richfield Co. v. Christian, 140 S.Ct. 1335 (2020).
In Atlantic Richfield Co. v. Christian, the United States Supreme Court addressed the EPA’s authority under CERCLA and private tort actions seeking relief beyond the EPA’s adopted CERCLA remedy. The opinion resulted in two key consequences for businesses liable for cleanup under the act and “innocent landowners.” First, Section 113 of CERCLA does not bar state courts from hearing landowner claims arising under state common-law doctrines (e.g. trespass, nuisance, strict liability), even if the alleged common-law claim requires the defendant to fund more or different work than required under the CERCLA remedy. Second, under Section122(e)(6) of CERCLA, all potentially responsible parties, including “innocent landowners” and parties who have not been sued within CERCLA’s limitation period, must receive EPA approval before conducting additional remedial activities on privately-owned property currently listed as a federal Superfund site.
I. FOREST RESOURCES
1. Trump Administration Halts Control Burns On Public Lands During COVID-19 Pandemic.
Contrary to fire prevention measures, the Trump Administration issued an order halting control burns on public lands throughout the state of California citing coronavirus as the reason. The action by the Trump Administration comes weeks after an extensive Forest Service report unveiled that California is under another above average fire risk year in 2020. The U.S. Forest Service controls roughly sixty percent of all rangeland in the state and the Administration gave no indication of when controlled burns will resume. Cal Fire continues to execute control burns throughout the state on state rangeland stating that fire risk is an essential service during the pandemic since the protection of forest lands is equally as health critical as pandemic spread.
J. CULTURAL RESOURCE MANAGEMENT
1. Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665.
A complete analysis of this recent decision is posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/03/articles/ceqa/court-of-appeal-affirms-judgment-setting-aside-a-negative-declaration-based-upon-the-fair-argument-test-and-imposing-personal-liability-on-developer-for-an-award-of-fees-and-costs-pursuant-to-the-cali/
K. ENVIRONMENTAL ENFORCEMENT
1. State Water Resources Control Board v. Baldwin & Sons, Inc. (2020) 45 Cal.App.5th 40.
Baldwin & Sons, Inc., and others appealed from an order compelling compliance with investigative subpoenas issued by the State Water Resources Control Board (“State Board”) for allegedly being involved in violations of the CWA and California’s Porter Cologne Water Quality Control Board at a construction site. In connection with its investigation, the State Board issued subpoenas seeking Appellants’ financial records. Appellants contended: (1) their financial records were not reasonably relevant to the State Board’s investigation; (2) compelling production of their financial records violated their right to privacy; and (3) the protective order did not adequately protect against disclosure of their private financial information to third parties. The Court of Appeal rejected these arguments and instead held that the trial court properly issued the investigative subpoenas for financial records, because the subpoenas were sufficiently definite and the information sought was reasonably relevant to an authorized investigation of water quality violations. Next, the Court held that the appellants privacy interests were sufficiently protected because Government Code section 11183 prohibited unauthorized disclosure and a protective order was not shown to be inadequate. Finally, the Court held that a certificate of interested entities or persons could not be filed under seal, because the rights of public to access records under Code of Civil Procedure section 124, encompassed financial information.
2. Nat’l Ass’n of Wheat Growers v. Becerra, 2020 U.S. Dist. LEXIS 108926 (E.D. Cal., June 22, 2020).
Prop 65 requires the Governor to publish a list, determined by California EPA and U.S. EPA, of chemicals known to the state to cause cancer. Failure to comply results in fees and the potential for an enforcement action to be brought by the California Attorney General, district attorneys, city attorneys, and city prosecutors. In this case, a third party watchdog group categorized glyphosate as “probably carcinogenic” to humans based on “sufficient evidence” despite the EPA and several other organizations deciding that there is insufficient or no evidence to make that determination. As a result, the EPA sought an injunction for the labeling and refused to approve herbicide labels with a Prop 65 warning for containing glyphosate, arguing this would be false and misleading. The Court ruled in favor of the plaintiffs on their First Amendment claim and met the requirements for an injunction stating that there was sufficient evidence to list glyphosate as a carcinogenic chemical warranting Prop 65 listing. The Court enjoined the warning requirements of California Health & Safety Code § 25249.6 as to glyphosate.
3. EPA Set To Restore Enforcement Actions Starting August 31.
In late March, the EPA announced they would be suspending a number of environmental enforcement actions during the novel coronavirus pandemic. The EPA’s reasoning for suspending enforcement stated industries were likely to experience difficulty complying with enforcement measures as a result of travel and social distancing restrictions. Many regional agencies throughout California have halted non-essential inspections and reporting requirements. However, the same agencies continue to enforce critical land use enforcement as well as appropriately respond to hazardous materials incidents. Among those industries requesting relaxation of reporting and compliance standards was the oil and gas industry citing staffing problems from illness and a lack of social distance assurances. EPA Administrator Andrew Wheeler stated the order was open ended and backdated to March 13th. The order further stated that the industries must take reasonable practical compliance measures and where businesses cannot comply with enforcement actions, they must demonstrate where there was an attempt to reduce the harm as well as tie the violations back to coronavirus impacts. The Agency also expects public water systems not to relax any water standards to ensure that public water supply remains at potable standards for consumption. EPA further stated that superfund and other hazardous and solid waste management reporting requirements are not exempt since enforcement in these areas is of critical importance.
In May, Administrator Wheeler appeared before the Senate Environmental and Public Works Committee and defended the decision by the administration. During his time before the Senate, Administrator Wheeler also spoke of what he considered an “impressive list of more than 60 deregulatory actions” taken by the EPA during the Trump Administration. When pressed by various Senate Democrats as to why the agency did not seek additional information as to why industry stakeholders could not comply with enforcement during the pandemic, Administrator Wheeler stated that the action simply allows companies to cite the pandemic if they are unable to comply but does not allow for increased pollution. Prior to the hearing in the Senate Committee, ranking member Thomas Carper of Delaware released a report emphasizing the connection between air pollution, the COVID-19 infection and death rates and lower income and minority communities. At the conclusion of the hearing, Administrator Wheeler stated the EPA would further look into the connection between air pollution and the pandemic.
Since then, several states, led by New York, have challenged the rollbacks by the EPA. These states argue that the policy exceeds the EPA’s statutory authority, is arbitrary and capricious, and was issued without complying with legal notice and comment requirements. Additionally, some U.S. Senators have expressed concerns about the Agency’s regulatory rollbacks in air and climate policy.
For more information see:
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.