By William W. Abbott, Diane Kindermann, Glen Hansen, and Daniel S. Cucchi
Welcome to Abbott & Kindermann, Inc.’s July Environmental Action News – Part 2. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2020.
PREVIOUS MONTH’S UPDATE
To read the July 2020 Environmental Action News- Part 1 post, click here:
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?
Protecting Our Water & Environmental Resources v. Stanislaus County, S251709. (F073634; nonpublished opinion; Stanislaus County Superior Court; 2006153.) Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Is the issuance of a well permit pursuant to state groundwater well-drilling standards a discretionary decision subject to review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) or a ministerial action not subject to review?
Wilde v. City of Dunsmuir, S252915. (C082664; 29 Cal.App.5th 158; Siskiyou County Superior Court; SCCVPT16549.) Petition for review after the Court of Appeal granted a peremptory writ of mandate, reversed and remanded with directions in a civil action. This case presents the following issue: Can the electorate use the referendum power (Cal. Const., art. II, § 9) to challenge a city’s resolution increasing water fees or is such a challenge expressly limited to the power of initiative (Cal. Const., arts. XIII C & XIII D, § 6 (Proposition 218))?
CALIFORNIA WATER RIGHTS AND SUPPLY
- Abatti v. Imperial Irrigation Dist., 2020 Cal.App.LEXIS 663 (July 16, 2020).
The Court of Appeal affirmed in part and reversed in part the lower court’s ruling finding that Abatti had right to service and not a water right, and also that Imperial Irrigation District (“District”) arbitrarily curtailed service to farmers without proper justification. The Court held that ancestral use of water does not constitute a water right, but rather a right to service under the California water laws and the State’s constitution. The Court agreed with the trial court’s determination that farmers had a right to service but overturned the trial court’s determination that there is a pre-1914 water right. The Court held that although the farmers are afforded certain benefits because of their right to water service, those benefits did not constitute a pre-1914 right to water. The Court further held that the District’s discretion to prioritize water users was not made properly and as such, the District’s actions were arbitrary and needed further modification. The Court affirmed the trial court’s determination as to prioritizing the water apportionment, but overturned all other claims holding as follows: “1) granting the petition on the sole ground that the District’s failure to provide for equitable apportionment among categories or water users constitutes an abuse of discretion, and 2) denying the petition on all other grounds, including as to discretionary relief.”
- Earth Island Inst. v. Wheeler, 2020 U.S. Dist. LEXIS 96724 (N.D. Cal. June 2, 2020).
The district court denied the Environmental Protection Agency’s (“EPA”) motion to dismiss finding that the EPA was obligated to update the National Contingency Plan (“NCP”), which is responsible for responding to oil and hazardous substances contamination under the Clean Water Act. District Court Judge William Orrick held that Earth Island Institute had a viable claim against the EPA for a violation of the CWA. Under the Court’s reasoning the EPA had a nondiscretionary duty to create and enforce the NCP and chose not to perform that duty. The Court further stated that EPA had no authority to interpret their duty as discretionary and that the duty of the EPA is clear-cut. In light of the Court’s determination, Judge Orrick denied the EPA’s motion to dismiss and the case will move forward on the merits.
- California Proposes A Broad Migratory Bird Protection Act On The Heels Of Federal Limitations On Clean Water Act And Migratory Bird Treaty Act
Under the newly adopted California Migratory Bird Protection Act and the Waters of the State Rule, California will use enforcement measures to protect smaller wetlands and seasonal waterways which are critical habitat for migratory birds. State elected officials stated that the expanded Waters of the State Rule needed implementation because the federal definition cut protections to 90% of ecologically sensitive wetlands in the state. The California Migratory Bird Act passed to ensure that more than 40% of California’s rare and endangered species had stable shelter and food in conjunction with the Waters of the State Rule. State regulators hope that the newly implemented law and regulations will stop gap future harms to wetlands and bird populations until there is an opportunity to work in conjunction with the federal government for species protection once more.
For more information see:
AIR QUALITY AND CLIMATE CHANGE
- Citizens for Pa’s. Future v. Wheeler, 2020 U.S. Dist. LEXIS 112503, ____ F. Supp.3d ______ (N.D. Cal. June 26, 2020).
In a shocking ruling, Judge Chhabria in the U.S. District Court for the Northern District declined to rule on cross motions for summary judgment until the EPA completed a 30 month rulemaking process on the “technology-based standards” list under the Clean Air Act. Judge Chhabria held that EPA was under a statutory obligation to revise its technology-based standards for a hazardous pollution source. The Court declined to grant either motion because courts may not interpret statutes unless there is a clear and unequivocal duty under the statute. As Judge Chhabria stated, the duties of the EPA to formulate the “technology-based standards” list are vague and leave substantial room for interpretation. Although the Court acknowledged it could grant EPA’s motion for summary judgment, it declined to do so since EPA admitted the agency was in the middle of the 30-month review period for finalizing the “technology-based standards” list. The Court ruled that rather than rule on either motion for summary judgment, the case would be stayed pending the completion of the 30-month review period and further briefing by both parties.
- CARB Reports San Joaquin County Too Generous With Cap and Trade Credits.
California Air Resources Board released a June study stating that the San Joaquin Valley Air Pollution Control District (“District”) overestimated Cap and Trade credits from businesses in the district for years. The District stated that the rules set by CARB were interpretive but agreed to modify its practices to create more transparency and likely higher costs to businesses applying for permission to vent exhaust in the San Joaquin Valley. In CARB’s report, the agency identified several discrepancies primarily in the way the District calculated the pollution-cutting benefits when businesses move from diesel-burning tractors to electrical. CARB found that the District was too generous in allocated value and credit values to this business practice. The District did not dispute the overall findings by CARB and agreed to make modifications to its Cap and Trade policies for the 2020 year and beyond.
For more information see:
- California Fish & Game Commission Begins The Process For A Potential Listing Of The Pacific Leatherback Sea Turtle.
As the largest turtle species in the world and fourth largest living marine reptile, the Fish and Game Commission’s consideration of a petition to list the Pacific Leatherback sea turtle likely would save the species from further decline. The species has seen an 80 percent decline in populations over the last thirty years and could potentially see a 96 percent decline by 2040 if no listing action occurs. The Commission acknowledged in its comments on the petition that data supporting the petition for listing proves a substantial decline in the population and is reliable data compiled by National Marine Fisheries Service (“NMFS”). The Commission will release its listing determination at its August 19-20 meetings in Fortuna, CA.
For more information see:
NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
- Whitewater Draw Nat. Res. Conservation Dist. v. United States Dep’t of Homeland Sec., 2020 U.S. Dist. LEXIS 96483 (S.D. Cal. June 1, 2020).
In cross motions for summary judgment, the U.S. District Court granted defendant’s motion stating that Plaintiffs failed to offer sufficient proof of impropriety when the department issued a “Finding of No Significant Impact” (“FONSI”) for the construction of a housing facility for illegal border crossers. Plaintiffs filed suit against defendant for the issuance of a FONSI, as part of the NEPA process, resulting from defendant’s attempt to construct a new housing facility for illegal immigrants crossing the Mexico-California border. The Court held that plaintiffs failed to show that defendant’s exemption from NEPA caused an environmental injury. The Court acknowledged potential harm to those housed in the fully constructed facility, but stated that (i) injury must be personal; and (ii) plaintiffs lacked standing since they failed to prove personal injury. Lastly, the Court held that plaintiffs claim to look at the environmental harm in its totality was overly broad since plaintiffs failed to prove specific injury resulting from the specific facility under construction. The Court reiterated that plaintiffs failed to provide sufficient and particular evidence to raise genuine issues of material fact under NEPA or the APA. As such, the Court granted defendant’s motion for summary judgment and denied plaintiffs motion for summary judgment.
- CarMax Settles Enforcement Action With California Attorney General For Illegal Dumping Of Hazardous Materials In Dumpsters.
Sixteen District Attorneys and the California Attorney General’s Office settled an environmental enforcement suit for $1.6 million resulting from CarMax illegally dumping remnants of hazardous materials in the dumpsters of its car lots. The District Attorneys alleged that CarMax violated multiple hazardous materials and hazardous waste laws between the periods of 2014 and 2020. The settlement included $1 million in civil penalties, $300,000 for investigative costs, and $60,000 directly to the San Diego District Attorney’s Office. CarMax must also pay an additional $300,000 to fund supplemental environmental projects in the state of California and commit to mandatory training, reporting, and compliance requirements on handling hazardous materials. Implementation of the new training requirements will occur at all CarMax locations in the state of California.
For more information see:
- CDFW Served Search Warrant For Illegal Marijuana Grow Farm In Tehama County.
The California Department of Fish and Wildlife (“CDFW”) issued a warrant for an illegal marijuana grow farm on a remote parcel of property 30 miles west of Red Bluff, CA. Tehama County banned the growing of cannabis in the County limits. The action was triggered by neighbors calling in a complaint to the County after the owners of the parcel brandished firearms at neighbors to prevent entry to the property. CDFW found 28,733 illegal cannabis plants on the property and destroyed 165 lbs. of processed cannabis. The officers further found at least 10 poached animal carcasses and seized two unregistered weapons. The officers arrested four suspects on felony cannabis and other charges. The State Water Resources Control Board and California Department of Food and Agriculture further filed additional charges against the suspects for other code enforcement violations.
For more information see:
- Navistar Settles Air Quality Enforcement Action For $2 Million.
The truck manufacturer, Navistar Inc., paid over $2 million in allegations for altering the engines of its heavy-duty vehicle engines leading to the potential excess emissions of diesel and negative air quality impacts. The manufacturer modified the vehicle models without notifying the California Air Resources Board (“CARB”) of changes which are required under state law. CARB discovered the violations of air resource compliance during a routine inspection of engine testing. Navistar agreed to pay $1,013,400 to the Air Pollution Control Fund supporting air quality research with the remaining portion to be distributed to the South Coast Air Quality Management District for the disparate impact Navistar’s violations had on neighboring disadvantaged communities.
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.