Welcome to Abbott & Kindermann, Inc.’s October 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 September 2020 Environmental Action News post, click here: https://blog.aklandlaw.com/2020/09/uncategorized/september-environmental-action-news/ .
- 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?
A. WATER RIGHTS AND SUPPLY
- Governor Newsom Denies Friant Kern Canal Funding In Yet Another Water Supply Fight.
Friant Kern Canal, a critical water canal for Central Valley Farmers and residents, needs immediate upgrading and is unlikely to be upgraded because of lack of funding. The upgrades to the canal are part of a federal project that would help ensure the canal can transport water at full capacity. In order to begin construction, the federal project requires the state to contribute to 35 percent of the cost. Earlier in October, Governor Newsom vetoed the bill that would have contributed the state’s portion of the cost for the water project. The vetoed bill, SB 559, required the Department of Water Resources to report progress of the project to the Legislature and in exchange for progressive reporting, the State would contribute the 35 percent of funds necessary to fund the project. Governor Newsom stated that he rejected the bill because it only examined and funded one project. He pointed out that the State’s Water Resilience Portfolio comprehensively examines all water infrastructure projects in the state and funds projects most in need. Central Valley water withdrawers expressed opposition to the Governor’s position stating that with SGMA restricting water withdrawals starting this year, the canal system is critical infrastructure needed to keep the farming industry adequately watered.
For more information see:
B. WATER QUALITY
- EPA Determined That $108 Million Needed To Improve Water Quality For the Delta.
The U.S. EPA loaned the City of Stockton $108 Million as part of the Water Infrastructure Finance and Innovation Act to improve the City’s wastewater treatment facility and reduce discharges into the San Joaquin River. The project supports a cleaner and safer waterway in the Delta. The City’s upgrades will include new aeration basins and secondary treatment technology, compliance with stricter nitrogen compounds, and improve water quality. The loan will cover roughly half the cost of the total improvements to the facility. The remainder of the project will be funded through revenue bonds, system funds, and a California Clean Water State Revolving fund loan. In its analysis of the project, the EPA stated that the upgrades to the system would create 700 local jobs and lead to a city cost saving of $67 million.
For more information see:
- Orange County Board Of Supervisors Closer To Approval Of The Poseidon Desalination Plant To Improve Drinking Water.
As part of Governor Newsom’s 2020 Water Resilience Portfolio, Orange County plans to move forward with an approval vote for the controversial seawater desalination plant known as Poseidon. The project is largely controversial because of the amount of discharge that flows back into the ocean as a result of desal treatment. Further, the upfront cost to build the plant has been independently evaluated as too expensive for the value. To further complicate matters, prior to the Board of Supervisor’s vote on the project, two of the Board members who support the project are concerned about voting for the project for fear of losing their board seats in the November 3rd election. Late in October 2020, Governor Gavin Newsom removed one of the directors for the Santa Ana Regional Water Quality Control Board who was most vocally opposed to the project. Governor Newsom has the appointment power for each Regional Water Board director statewide and took steps to ensure a positive vote could be procured for the Poseidon project. With the vote on the project forthcoming, it is anyone’s guess what the final decision will be.
For more information see:
- Pacific Coast Federation of Fishermen’s Association v. Donald Glaser et al., 937 F.3d 1191 (9th Cir. 2019), on remand, 2020 U.S. Dist. LEXIS 61262 (E.D. CA, April 7, 2020), 2020 U.S. Dist. LEXIS 189607 (E.D. CA, October 13, 2020).
In December 2019, the Ninth Circuit Court of Appeal reversed a decision of a U.S. District Court for the Eastern District of California and held that an NPDES discharge permit was required under the Clean Water Act for the Central Valley Grasslands Bypass Project (“Project”). The Project is owned and operated by the United States Bureau of Reclamation (“Bureau”) and discharges significant quantities of selenium and other pollutants into state and federal wildlife refuges leading into the Delta. The Ninth Circuit held that it was the Bureau’s burden to prove that its discharges were “composed entirely of return flows from irrigated agriculture.” An exemption cited by the Bureau was limited to “only those flows that the exemption applied so long as a ‘majority’ of the wastewater originated from agricultural activities.” The Ninth Circuit further held that the District Court erred in holding that the Bureau could rely on the exemption so long as a “majority” of the wastewater originated from agricultural activities. The court clarified that the exemption applied only where the discharges were entirely from flows related to agricultural production. On remand, the District Court will consider which specific categories of land contributed to discharges in violation of the NPDES permitting process and will otherwise consider the merits in cross-motions for summary judgment.
In October 2020, the Court granted Grassland Water District’s (“GWD”) motion to intervene as a defendant. GWD argued in their motion that the Ninth Circuit’s prior ruling greatly expanded the scope of liability for potential CWA violations to areas outside of the Grassland’s Water District. As such, GWD requested that the circuit court limit the liability of the action and include GWD as a defendant party to the suit since the outcome of the case has a potential to generate liability for GWD. The circuit court found that GWD did not delay in making its intervention request because it filed a motion as soon as the Ninth Circuit’s opinion was issued triggering a new stage in litigation. The court further stated that the parties would not be prejudiced by inclusion of GWD as a party to the litigation. Further, the court stated that GWD proved that there was a significant protectable interest at risk depending on the outcome of the case between the existing parties and that neither party could adequately protect GWD’s interests in the litigation. As such, the court granted the motion for intervention. The case will now proceed with additional discovery, if any, since intervention by a new party likely will require further discovery before moving to the merits of the case.
D. AIR QUALITY AND CLIMATE CHANGE
- EPA Wins Settlement With California Trucking Companies Over Pollution Regulations.
The U.S. EPA secured a settlement of $417,000 in penalties for violating CARB’s federally enforced Truck and Bus Regulation. As part of the settlement the companies agreed to bring their operations into compliance with Southern California and Central Valley air pollutant levels. The companies include Roadrunner Transportation Systems, Inc., Ruan Transportation Management Systems, Inc., and the Boise Cascade Company. Under CARB regulation, the trucking companies are required to meet specific NOx and PM standards and to verify compliance with vehicles they hire or dispatch. The violations among the three companies include failed verification of compliance, failure to timely meet the PM reductions under State of California requirements, and operating unregistered and noncompliant drayage trucks.
For more information see:
E. RENEWABLE ENERGY
- CPUC Makes Modifications To Rule 21 To Account For Renewables Already On The Grid.
CPUC released its modifications to Rule 21 which allows independent distributed energy resources to provide interconnection expansion into the western grid. Revisions to Rule 21 include but are not limited to:
- Incorporate data on grid conditions specific to each location of an interconnection project;
- Options for developers to provide optimal operating schedules around grid conditions; and
- Increased support for energy storage projects.
CPUC directed the utilities to begin using the Integration Capacity Analysis results to model the conditions for when to bring distributed energy resources and interconnection points online. Many supporters of the rule modifications stated that the use of the ICA is a critical component to selecting interconnection locations and improving consistent energy capacity. The supporters of the rule changes further stated that the modifications to the rule will make interconnection cheaper overall and provide clear guidance for the interconnection of storage projects.
For more information see:
- CAISO Releases Report Explaining Insufficient Resource Planning Resulting In Rolling Blackouts During Summertime.
In an early October report, CAISO, collectively with CEC and CPUC, pointed out a number of electrical brownouts and outages in summer were a result of extreme weather, lack of system planning, and ineffective day-ahead market practices. The heat event was labeled by CEC to be a once in 35-year event which led to a significant impact on supply and demand. The Stage 3 rotating outages that followed affected roughly 500,000 customers statewide. The agencies provided several solutions to prevent future problems such as updating reliable planning targets to account for extreme weather events, completing outstanding storage projects statewide, streamlining procurement regulations to bring more resources online in 2021, and ensuring that day ahead markets reflect supply and demand during stressed conditions.
For more information see:
F. HAZARDOUS MATERIALS AND REMEDIATION
- Mission Linen Supply v. City of Visalia, 2020 U.S. App. LEXIS 17441 (9th Cir., June 3, 2020), 2020 U.S. Dist. LEXIS 183399 (9th, October 2, 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 the 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. In the Court’s October 2, 2020, Opinion, the Ninth Circuit denied the City’s claim that they were not liable to pay remediation costs because of the protections in the Public Contracts Code. The parties admitted in supplemental briefing that the Public Contracts Code which applies to contracts where a party enters into a contract with a public agency has never been applicable to CERCLA actions. The Court specifically stated that the court could not envision a scenario in which the Public Contracts Code would remediate or relieve the City from liability. The Court granted the arguments presented by Mission and ordered the City to pay 50% of remediation costs.
- Levin Richmond Terminal Corp. et al.v. City of Richmond, 2020 U.S. Dist. LEXIS 156103 (N.D. CA., August 27, 2020).
The Circuit Court denied Defendant the City of Richmond’s (“City”) motion to dismiss on all claims except the Hazardous Materials Transportation Act claim, and granted intervention motions for Sierra Club and San Francisco Baykeeper in a suit involving a city moratorium on the storage of coal and petroleum coke. Plaintiffs filed suit against the City for the 2015 resolution adopted by the City Council preventing the storage and export of coal and petcoke on city-owned property. The City stated that transportation and storage of said products presented a public health concern and disproportionately burdened vulnerable populations living nearby the storage and railroad facilities in Richmond. Plaintiffs allege that the ordinance violates their constitutional rights preempted by federal law under the Hazardous Materials Transportation Act, as well as the Commerce Clause, Contracts Clause, Interstate Commerce Clause, , Takings, and Due Process Clause of the U.S. Constitution. Defendants filed a motion to dismiss the case on all claims and the court considered the motion as to all claims presented by plaintiffs. The burden is on the plaintiffs to prove there is a genuine issue of material fact for each claim in order to survive a motion to dismiss. The court found that on the constitutional claims (Interstate Commerce, Commerce, Takings, Due Process, and Contracts Clauses), there were disputed facts as to whether the public health justification for the ordinance circumvented the plaintiffs’ rights under all of the constitutional claims. As such, the Court denied the motion on all constitutional claims. The court further determined that the Hazardous Materials Transportation Act claim was not preempted by federal law. The Court reasoned that since plaintiffs failed to show there was a federal preemption, it granted defendant’s motion to dismiss on this cause of action. The Court then considered the intervention motions for Sierra Club and San Francisco Baykeeper. The Court denied the motions for intervention as a matter of right finding that the parties largely reiterated the City’s motion to dismiss without carving out a unique argument as to how they should be granted intervention as a matter of right. The Court however, granted permissive intervention to both parties finding that the interests of both parties would be substantially impaired if they were not added as parties, that intervention was timely, and that it would not be unduly burdensome to both parties for Sierra Club and San Francisco Baykeeper to be added as parties. As such, the Court granted the motion to intervene for both parties. The case continues to move forward as to each constitutional claim.
G. CULTURAL RESOURCE MANAGEMENT
- Governor Newsom Signs Executive Order To Restore Native American Land To California Indigenous Communities.
As part of Executive Order N-15-19, Governor Newsom directed the Governor’s Tribal Advisor to assemble a committee to assist in the co-management and acquisition of ancestral lands and repatriate and promote growth for California Native Americans. The Governor signed these actions on California Native American Day. Earlier, the State Lands Commission conveyed 40-acres of state-owned land back to the Lone Pine Paiute-Shoshone Tribe through funds under Proposition 68. The Governor further called on the California Natural Resources Agency to announce a series of actions to identify and address racial bias that limits representation of Native Americans in the state. On the same day, the Governor signed seven pieces of legislation into law that specifically aimed to help tribal communities in various capacities including voting, gaming, law enforcement, beach access, cultural preservation, and housing. The Governor stated that he hoped the actions of the state could act as a gateway to healing a painful past between the state and native tribal 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.