Welcome to Abbott & Kindermann, Inc.’s November 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 October 2020 Environmental Action News post, click here: https://blog.aklandlaw.com/2020/11/articles/ak-news/october-environmental-action-news/ .
- 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. WATER RIGHTS AND SUPPLY
- City of W. Sacramento v. R&L Bus. Mgmt., 2020 U.S. Dist. LEXIS 202167 (E.D. CA. October 28, 2020).
The district court denied a partial summary judgment motion filed by the City of West Sacramento for the suit brought against defendants’ release of hazardous substances from a metal plating facility. Plaintiffs filed suit against defendants over toxic levels of groundwater contamination at defendants’ former West Sacramento facility. In prior summary judgment hearings, the court granted summary judgment for plaintiffs on their CERCLA and RCRA claims. Plaintiffs then brought the ensuing summary judgment motion against defendants for the public nuisance and Porter-Cologne Water Quality Act (“Porter Cologne Act”) claims. The court held that there remained a dispute of fact over whether defendants actions were a substantial factor causing the nuisance. As such, the court denied summary judgment to the plaintiffs on the public nuisance claim. The court further relied on defendants’ expert witness and concluded that there were disputes as to whether defendants were conclusively liable under the Porter-Cologne Act. As such, the court denied the summary judgment motion for those claims as well. The case continues to move toward trial for these remaining claims.
B. WATER QUALITY
- California State Water Resources Control Board Provides Compliance Guidelines For Industrial Stormwater General Permit As Related To Wildfires.
The State Water Resources Control Board (“SWRCB”) released guidance in October 2020 for construction and industrial stormwater permitting in areas impacted by wildfires. As part of the guidance, the SWRCB provides clarity on specific protocols for different types of construction projects and different holders of the industrial stormwater permit who have been adversely affected by the ongoing wildfires over the past three fire seasons. The Board recognized that wildfires pose a serious threat to water resources and pollution levels and aimed to provide guidance for those affected to bring their projects into compliance. The guidance document for construction for stormwater dischargers includes specific directives in the following areas:
- New Planned Construction Activity;
- Continuation of Existing Regulated Construction Activity;
- Visual Observations Completed at Sites Impacted by Wildfires;
- Damaged Treatment Best Management Practices; and
- Guidance for Risk Level 2 and 3 projects and Type 2 and 3 Linear Underground/Overhead Projects.
SWRCB provided further streamlined guidance for regulatory compliance for holders of Industrial Stormwater General Permits damaged by wildfires. These streamlined directives addressed the following areas:
- Samples not representative of facility activities;
- Sampling not completed due to unsafe conditions;
- Non-qualifying storm events; and
- Temporary suspension of industrial activities.
SWRCB recognized that the guidance provided is ongoing and not entirely comprehensive. As such, the SWRCB cautioned applicants to be proactive and work with staff to ensure construction projects and current permits are kept in compliance.
For more information see:
- Friends Of The Dunes Assumed Temporary Control And Management Of Samoa Dune And Wetland.
Friends of the Dunes, Humboldt Bay Harbor Recreation, and four other conservation organizations, completed a deal allowing Friends of the Dunes to acquire the Samoa Dunes and Wetlands for the purposes of conservation and public access. The Samoa Dunes and Wetlands is a 357-acre coastal dune and bayfront project, of which, Friends of the Dunes seeks to protect as a “profound coastal dune forest, diverse wetlands, healthy habitat for rare native plants, and a truly special place.” Adding this property to the existing conservation lands on the north spit of Humboldt Bay will create a continuous connected area of more than 1600 acres of sweeping native dunes managed for habitat conservation and public access.
For more information see:
D. AIR QUALITY AND CLIMATE CHANGE
- Governor Newsom Seeks Protections For State Lands To Protect Climate Change.
Governor Newsom recently signed an executive order to protect roughly a third of California’s land and coastal waters in his continued effort to fight climate change and prevent further record-breaking fires. This order directs state agencies to pursue actions that will use the state’s lands and waters to sequester carbon. Newsom cited innovative farming practices, better forest management, restoring wetlands, and increasing the number of parks as potential avenues to reduce carbon. The order is intended to protect the state’s economy and agriculture industry, while also expanding and restoring biodiversity in areas like the Bay Area tidepools and Southern California’s arid deserts.
For more information see:
E. RENEWABLE ENERGY
- PG&E Files For A Rate Adjustment For Fire Mitigation Costs With CPUC.
In 2020, PG&E filed two separate requests with the CPUC to recover costs from ratepayers for maintenance of power lines and catastrophic event mitigation. In February 2020, the utility filed an application with the Commission seeking $891 million in costs for rate relief as a result of system improvements made between 2017-2019. The most recent application to the Commission requested additional funds not sought in the first request. Approval by CPUC would result in a rate increase for residential customers of roughly 4.6% and Direct Access or CCAs at a rate of 5.7% respectively. An administrative law judge is in the process of considering this request and will submit a recommendation to the Commission before the Commission will consider final approval and implementation.
For more information see:
- Eight CCA’s Take Steps Toward Long Duration Storage To Support Wind and Solar.
A grid planning document filed with CPUC requests that the Commission approve 500MW of 16 hours of storage for eight CCA’s to bring online by 2026. The document filed pointed out that the CCAs need 1 GW of storage capacity to meet the energy demands by 2026. The proposed plans for the CCAs recommends an additional 11 GW of solar, 3GW of wind and 8.9GW of battery storage total. The recommended long-duration storage will allow the utilities to store many more hours of reliability at a cost-efficient solution. The CCAs released a request for offers to procure projects to meet the 500 MW of long-duration storage referenced in the CPUC grid planning document. The collaboration between the CCAs provides for more cost efficiency and reliability which would aid approval by the CPUC in the long-term. The RFOs and approvals by the CPUC are ongoing.
For more information see:
- CAISO Board Of Governors Approve “Hybrid Resources Phase 2” Initiative.
On November 19, 2020, the California Independent System Operator (ISO) Board of Governors adopted market tools to help integrate new battery storage resources and improve overall reliability for next fall. The approval was expedited to accommodate over 1,500 megawatts of storage capacity that is expected to connect to the grid before the end of the year. The adopted proposals allow hybrid storage resources to provide ancillary services to help maintain grid and transmission reliability and expand the functionality of co-located batteries. It also requires hybrid and co-located storage resources to provide the battery’s maximum output data to improve forecasting.
For more information see:
F. ENDANGERED SPECIES
- Friends of the River v. Nat’l Marine Fisheries Serv., 2020 U.S. Dist. LEXIS 204463 (E.D. CA. October 30, 2020).
The National Marine Fisheries Service (“NMFS”) and Yuba County Water Agency prevailed on summary judgment motions against plaintiff’s complaint alleging violations of the Endangered Species Act (“ESA”) and the Administrative Procedures Act (“APA”) arising out of water diversion in the Yuba River. NMFS released the first biological opinion on projects slated for the Yuba River in 2000. In 2002, NMFS released a full biological opinion stating there was minimal to no impact on the spring Chinook and steelhead populations in the Yuba River. Between 2002 and 2014, the Army Corps of Engineers and NMFS conducted several more biological opinions. Plaintiff challenged NMFS’ and the Army Corps’ execution and reliance on these opinions when analyzing whether the Listed Species were unreasonably impaired by Yuba River activities. The Court held for defendants on all of plaintiff’s claims and granted summary judgment for both defendants.
In 2019, Plaintiffs appealed the district court’s summary judgment motion. The Ninth Circuit agreed that NMFS acted arbitrarily and capriciously when it changed its approach to analyzing dam impacts on threatened fish species. NMFS did not dispute it changed its analysis, but stated it has a reasoned explanation for the change. As the Ninth Circuit established, there was no reasoned explanation available in the record for the Court to consider. As such, the 9th Circuit reversed the summary judgment motion and remanded to the district court. The 9th Circuit provided instructions to NMFS to reassess its 2014 BiOp and LOC in light of the Court’s opinion. Further, the 9th Circuit reversed the claims against the USACE for a Section 9 take analysis. The 9th Circuit reasoned that the district court should not have dismissed the claims against USACE for Section 9 take. As such, the Court remanded back to the district court with instructions to hear the claims in the first instance. Lastly, the 9th Circuit affirmed summary judgment denying that consultation under Section 7 need to be reinitiated. Further, the Court accepted briefing on attorney’s fees related the appeal. In October 2020, the lower court granted remand of the case for the Section 9 claim.
- for Fisheries Res. v. United States FDA, 2020 U.S. Dist. LEXIS 207492 (N.D. CA. November 5, 2020).
In cross motions for summary judgment, the district court ordered the Food and Drug Administration (“FDA”) to fully develop the potential environmental consequences of permitting genetically engineered salmon for release into the wild. The court determined that FDA did not meaningfully analyze what might happen to normal salmon if they mix with engineered salmon in the wild. The FDA approved two facilities that were designed to house genetically engineered salmon. The FDA argued that they did not need to evaluate the impact between the engineered salmon and native salmon species because there was no intent to release the fish into native waters. However, as petitioner’s pointed out, there was a risk that salmon could escape into native waters and for that reason alone, the agency needed to evaluate the risk to native fish populations. The court agreed with petitioners. The court held that the FDA must complete their final step of risk analysis under NEPA and the APA in order to ensure that the analysis is comprehensive and not prematurely arbitrary and capricious. The court granted summary judgment to the FDA for all remaining claims (non-environmental in nature) and ordered the FDA to provide a status report on the completion of the environmental assessment under the NEPA and ESA claims.
G. HAZARDOUS MATERIALS AND REMEDIATION
- Asarco LLC v. Atlantic Richfield Co., LLC, 2020 U.S. App. LEXIS 29048 (9th September 14, 2020).
The Ninth Circuit clarified the parsing of remediation costs in a contribution action under CERCLA. The case arose when ASARCO LLC (“Asarco”) agreed to environmental contamination and clean-up costs associated with several superfund sites located in East Helena, Montana. Prior to remediation commencing, Asarco sued Atlantic Richfield Corporation LLC (“Atlantic Richfield”) for its contribution to contamination of the Helena properties. At a bench trial, the court found Asarco liable for $111.4 million and Atlantic Richfield responsible for 25% of Asarco’s liability. The Ninth Circuit reversed in part holding that the costs of remediation to Asarco was not accurately calculated. The Court further affirmed the lower court’s determination that Atlantic Richfield was liable for 25%. It was Atlantic Richfield that reduced Asarco’s remediation costs and not Asarco because the arguments posited by Atlantic Richfield ultimately reduced costs for Asarco. Atlantic Richfield argued that under CERCLA, a court could only calculate known costs and not future costs which might never be incurred. The Court agreed that remediation costs were set too broadly, but remanded the case back to the district court in order to properly determine the true value of costs for Asarco. The Court affirmed the district court’s determination that Atlantic Richfield was liable for 25% of whatever the district court finds as an overall liability of cost for Asarco.
H. MINING, OIL, AND GAS
- State Lands Comm’n v. Plains Pipeline, L.P., 2020 Cal. App. LEXIS 1094 (2nd Dist. November 19, 2020).
Due to negligence, an oil production company’s pipeline burst, resulting in failure to transport oil from land it leased from the state, depriving the state of royalty income, and damaging the property. The California State Lands Commission and Aspen Am. Insurance Co., filed suit. After the lower court ruled in favor of Plains Pipeline, dismissing the claim that Plains’ negligent maintenance of a pipeline resulted in disrupting the flow of oil and causing damage, the Commission and Aspen appealed. The California Court of Appeal reversed, finding that Plains should not be immune (as a public utility) from liability for the interruption of service because it does not deliver essential municipal services to members of the general public. The court also held that the complaint alleges sufficient facts to show a special relationship between the parties that allows the Commission to recover purely economic damages. Specifically, that the purpose of Plains’ pipeline was to transport oil taken from the Commission’s land so that the Commission, among others, could make a profit. The Commission was intended to be a direct beneficiary of the pipeline transaction; therefore, the economic loss rule could not apply because a special relationship was established between the parties.
I. CULTURAL RESOURCE MANAGEMENT
- California Tribes Remain Silent On The Transfer Of Utility Services To Reclaimed Tribal Lands.
As part of Governor Newsom’s effort to return California tribal lands back to California Native American Tribes, the California Public Utilities Commission (“CPUC”) moved forward with a policy to require utilities to provide utility services and a right of first refusal over certain properties to connect to affected tribes. Unfortunately, only eight of the 164 California tribes provided comments on the CPUC policy. Of those tribal communities that responded to the policy, the comments were minimal at best. The CPUC further provided proposed guidelines following the policy that would guide implementation. Tribes also minimally responded to the guidelines which left concern at CPUC and the state government that the policies may not meet the needs of the tribal communities or benefit their sovereign nations. Both the policy and guidelines were approved at the November 2, 2020, CPUC meeting by resolution.
For more information see:
- NASA Filing Could Exempt Cleanup Of Los Angeles Contaminated Site.
Cleanup of the Santa Susana Field Laboratory, the site of a partial nuclear meltdown in 1959 and one of the country’s most contaminated areas, has been dramatically scaled back by the Trump administration and may now be sidestepped altogether. Under the terms of a 2010 cleanup agreement with California, there is an exception to cleaning up Native American “artifacts.” In early October, NASA filed an attempt to expand the boundaries of a listed Native American Historic site on the property of the cleanup to match the 2,850-acres field lab’s property lines – a 200-fold increase. NASA spokesperson Shannon Segovia denied the allegation and said that listing the entire field lab as “traditional cultural property” will not affect NASA’s cleanup responsibilities.
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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.