Welcome to Abbott & Kindermann, Inc.’s September Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2020.
PREVIOUS MONTH’S UPDATE
To read the August 2020 Environmental Action News post, click here:
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?
- Alpine County v. South Tahoe Public Utility District, 2020 U.S. Dist. LEXIS 176018 (E.D. CA. September 24, 2020).
Plaintiff Alpine County (“County”) sued federal defendants and South Tahoe Public Utility District (“STPUD”) for violations of the Clean Water Act and California common law resulting from a continued transportation of sewage waste into Alpine County without making annual contractual payments to the County. The County claimed that STPUD violated the CWA and that Defendants could not comply with the guidelines of the CWA without a contract between the County and Defendants. The lack of an agreement thus led to violations of the CWA’s discharge requirements. The County’s complaint further alleged that because Lake Tahoe required sewage mitigation to meet statewide water quality standards all Defendants were required to seek various approvals and comply with guidance outlined by the EPA. The court was unconvinced by either allegation. The court granted STPUD’s motion to dismiss the case specifically because the County failed to allege any violation of the CWA. At oral argument on the motion to dismiss, the County’s counsel asked the Court whether they could amend their pleading to allege an entirely different federal law, the Tahoe Regional Planning Compact, but failed to include the Compact in its pleading or reference it prior to oral argument. The court further held that state court is likely a better venue for the contractual issues under California common law. The court concluded by stating that because the court dismissed the County’s only federal law claim, the court lacked jurisdiction for further recourse in federal court. The court dismissed the suit in its entirety.
AIR QUALITY AND CLIMATE CHANGE
- United States v. California, 2020 U.S. Dist. LEXIS 126504 (E.D. CA. July 17, 2020).
In October 2019, the United States government sought declaratory and injunctive relief against California, Quebec and WCI, Inc., for violations of the Treaty Clause, Compact Clause, and Foreign Commerce Clause of the U.S. Constitution resulting from the partnership between each entity to trade Cap-and-Trade credits between each entity. Plaintiff and defendants filed cross summary judgment motions for the Treaty and Compact Clause claims. Plaintiffs won summary judgment on those claims and the case proceeded to second cross-motions for summary judgment on the Foreign Commerce Clause claim. The court held that the United States failed to identity a clear and express foreign policy that directly conflicted with California’s Cap-and-Trade program. The court further stated that while the United States government has a unique role in communicating with foreign governments that could be jeopardized if individual states usurp the authority of the federal government, the court failed to see where California’s actions substantially compromised foreign relations or the operation of California’s Cap-and-Trade program. The court granted summary judgment for California and denied summary judgment motions for the United States. On September 16, 2020, the United States appealed this decision to the Ninth Circuit. The AK blog contains a detailed blog about the court’s summary judgment ruling on the Treat and Compact Clause claims.
- Riverside County Transportation Comm. v. Southern California Gas Co. (2020) 53 Cal.App.5th 1003, certified for partial publication.
The 4th District Court of Appeal affirmed PUC’s authority to demand a company to relocate its pipeline operations at the cost of the company. The court further found that after the PUC terminates a company’s licenses for pipeline operation, the company can be held liable for trespass if operations continue. Plaintiff (Riverside County Transportation Commission) pursued plans to extend Metrolink commuter rail across defendant’s (Southern California Gas Company) pipelines. Plaintiff terminated the licenses held by defendant to operate its pipelines and demanded that defendant move the pipelines at defendant’s own expense. Defendant agreed to move the pipelines, but at the expense of plaintiff. In the trial court, plaintiff won a determination that defendant was obligated to move pipelines at its own expense, but failed to win its claim that defendant had been trespassing after plaintiff terminated the pipeline licenses.
On appeal, the Court of Appeal affirmed the trial court’s holding that plaintiff had the authority to require defendants to relocate its pipelines at their expense. The Court reasoned that the licenses contained specific language granting plaintiff the authority to terminate the lease and that expenses should be left to defendant. The Court concluded that plaintiff was entitled to enforce the contract for the pipelines entered into by both parties. The Court reversed the trespass ruling by the trial court holding that defendant could not apply any alternative easement theories to circumvent its trespass on plaintiff’s property once plaintiff terminated the licenses allowing the pipelines in the public right-of-way. The Court held that defendant needed the permission of the public entity to maintain operations and failed to do so. In short, the Court held that defendant trespassed on plaintiff’s property when they failed to abandon operations after plaintiff terminated the operational licenses. The Court reiterated that public easement cases were frequent, and the publication of this case was intended to provide clear instruction on the easement rights of public agencies and private licensures.
- Governor’s Executive Order Phases Out Sale Of Gas Consuming Vehicles By 2035.
Governor Newsom signed an executive order in late September phasing out the sale of all gasoline powered personal vehicles by 2035 in an effort to encourage the purchase of electric cars, or other zero emission vehicle technologies, and reduce greenhouse gases in the state. The order would apply only to new vehicles in-state and would not apply to used-cars or cars sold in out-of-state markets. In a public press conference where the Governor signed the executive order, he expressed public support for implementing a ban on hydraulic fracturing in the state, and further stated that this executive order was a direct result of the state’s increased prevalence of wildfires. California has had increasing record-breaking wildfires for the past three fires seasons. Transportation is the state’s largest source of collective greenhouse gas emissions and several state agencies have recognized that in order to meet the state’s mandatory emissions reduction goals and RPS compliance by 2030, there needs to be statewide transitions in the transportation sector. Earlier in the summer, AK published an exhaustive blog speaking directly to the modifications to the transportation and land use development sectors resulting from the state’s RPS benchmarks. Although California has seen an increase in electric vehicle procurement, the state’s EV purchases account for only 8% of the market. Many opposition groups submitted public comments and expressed their concerns for the Governor’s order. It is expected that litigation challenging the Governor’s executive order will be filed shortly. As part of the order, the California Air Resources Board was directed to develop regulations to mandate that 100 percent of new in-state personal vehicle purchases are zero-emission by 2035. The order further states that the Air Resources Board will develop regulations to mandate that all medium and heavy-duty vehicles need to be 100 percent zero emission vehicles by 2045 where possible. The order states that the State would join 15 other countries committed to phasing out gasoline-powered vehicles in the next 15 to 20 years.
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ENDANGERED SPECIES ACT
- The Trump Administration Finalizes Formal Modifications To The Endangered Species Act.
The Department of the Interior finalized rules significantly weakening enforcement of the ESA in September 2019 but delayed formal implementation of the rules until 2020. Under the new rule, U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”) do not need to take into consideration the effects of climate change when deciding to list a species. Further, the rules allow for an economic assessment to be conducted when determining to list a species. As part of the press release by Interior Secretary David Bernhardt, the new rules are intended to increase transparency in the listing process. The new rules went into effect in July 2020. As part of the litigation pending before the U.S. District Court for the Northern District of California, 17 states argue that the change in the rules contradicts the goals of the act and the rules fail to provide a reasonable basis for the changes made or the environmental impacts as required by federal law. Parties to this suit are currently briefing the issues as the litigation is still ongoing. In August 2020, FWS and NMFS proposed a new definition of “habitat” for the implementation of the regulations recently finalized. The agencies are currently accepting public comments on the proposed definition. Earlier in September, FWS proposed a further modification to the regulations recently adopted by creating new protocols to designate critical habitat. The new definition excludes critical habitat designation for projects earmarked for schools, hospitals, and federal lands. The agency is accepting public comment until October 8, 2020 on the proposed rule.
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- The Joshua Tree Receives Endangered Species Protection As A Formal Vote Approves The Species For The Candidate List.
California Department of Fish and Wildlife formally places the Joshua Tree on the candidates list under the California Endangered Species Act. The Department recommended a listing in April 2020 triggering preliminary protections and a species evaluation. There are two species of Joshua Tree and the species proposed for listing are the western Joshua Tree. U.S. Fish and Wildlife denied a petition to list the Joshua Tree under the U.S. Endangered Species Act. The state listing recommendation collected public comments from April to early June. The Fish and Game Commission provided its recommendation to the Department of Fish and Wildlife and a vote occurred in July 2020. Once the recommendation was accepted, the Joshua Tree was placed on the candidate list for a year to determine the species status and decide whether listing is appropriate. After the one-year period, a second recommendation is made, and a vote occurs to determine whether final protection is necessary. The Joshua Tree and Joshua Tree National Park generate roughly $150 million in revenue for communities living around or indirectly supported by the health of the Joshua Tree species. Public comments on the listing recommendation largely addressed concerns from the surrounding community about how listing the species would affect development in the surrounding areas when the species recovery plan and sensitive habitat zones are established. The concern over survival of the western Joshua Tree is particularly tenuous because much of the range habitat in California is on private and state land. This creates development problems for private landowners but would go a long way to support species survival and the longevity of the economy dependent upon the Joshua Tree.
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HAZARDOUS MATERIALS AND REMEDIATION
- City of Lincoln v. United States, 2020 U.S. Dist. LEXIS 158386 (E.D. CA. August 31, 2020).
The City of Lincoln (“City”) sued the United States Air Force (“Air Force”) for ongoing contamination of underground water resulting from the Government’s alleged continual offloading of hazardous materials and pollutants from ballistic missile testing at a landfill in the City. The action commenced when The California Regional Water Quality Control Board (“Board”) tested groundwater near the Lincoln landfill’s southern boundary and determined that the groundwater exceeded California Secondary Drinking Water Standards. The City entered into a water recovery plan with the Board to clean up the water quality in the neighboring groundwater. After hiring independent environmental consultants, the City determined that the elevated levels of contaminants were the result of the Air Force dumping untreated missile waste on the property. The City filed suit alleging six causes of action including recovery and contribution under CERCLA. The Air Force moved for summary judgment on the CERCLA claims. The court held that although the City’s evidence proving liability for contribution to the Air Force was circumstantial, there was a genuine issue of material fact that the Air Force could be liable. As such, the court denied the Air Force’s motion for summary judgment. The court further concluded that the City’s costs were recoverable under CERCLA because cleanup was necessary. The court further concluded that although the Air Force was liable for costs under CERCLA, the City also was liable for contributory costs under CERCLA.
MINING, OIL, AND GAS
- Chilkat Indian Klukwan v. Bureau of Land Management, 2020 U.S.App. LEXIS 27493 (9th August 28, 2020).
The Ninth Circuit upheld the district court’s summary judgment ruling in favor of the Bureau of Land Management when the agency concluded that the development of a future mine was not connected to the current mining operations requiring further limitations under the Federal Land Policy and Management Act of 1976 (FLPMA). Appellant-Plaintiffs requested that the Ninth Circuit reverse the approval of BLM’s plans for hard rock mineral exploration on public land in southeastern Alaska. Appellants alleged that the project violated NEPA. After careful review, the Ninth Circuit upheld the determination of the circuit court holding that Appellants failed to demonstrate where BLM was required to consider environmental impacts from future development of a mine rather than linking exploration of public lands to a future mine project. The Ninth Circuit acknowledged that agencies must consider a project’s future impacts where there is a clear point of commitment between the project at issue and future impacts. However, the Court determined that BLM properly found that there was no known point of commitment to this project and the actions of the BLM were not arbitrary and capricious. As such, the Court affirmed the lower court’s holding in favor of BLM.
- Los Padres Forestwatch v. United States Forest Services, 2020 U.S. Dist. LEXIS 151234 (E.D. CA., August 20, 2020).
In granting the U.S. Forest Service’s motion for summary judgment, the District Court for Central California held that Forest Service’s decision to approve a project for forest thinning was not arbitrary and capricious. Plaintiff, Los Padres Forestwatch contested the Forest Service’s approval of a project to thin 1,626 acres of trees in the Los Padres National Forest because plaintiff believed the project would harm California condors. Plaintiffs alleged that the project was approved without a full environmental assessment and environmental impact statement thus violating NEPA, the ESA, and National Forest Management Act. On cross motions for summary judgment the court granted summary judgment for the Forest Service. The court held that the Forest Service properly utilized a categorical exemption to an environmental assessment or environmental impact statement. The categorical exemption applies to “thinning or brush control to improve growth or to reduce fire hazard.” As such, the court found that the actions of the Forest Service were not arbitrary and capricious and granted summary judgment for the Forest Service.
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.