Welcome to Abbott & Kindermann, Inc.’s May Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.


To read the March 2021 Environmental Action News post, click here:  https://blog.aklandlaw.com/2021/03/articles/ak-news/march-environmental-action-news/


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?



  1. Santa Ana Regional Water Quality Control Board Approves Permit For Huntington Beach Desalinization Project In 4-3 Vote.

In late April of 2021, the Santa Ana Regional Water Quality Control Board (“Board”) approved the discharge permit for Poseidon Water’s proposed Huntington Beach Desalinization Project. Against Poseidon’s objections, the Board included a prohibition on plant operation until the Board has signed off on 60% of design plans, cost estimates, and timelines for mitigation work. Environmental requirements include the dredging of an ocean inlet to the Bolsa Chica wetlands, restoration of Bolsa Chica cordgrass marsh and creation of artificial reef habitat off the Palos Verdes Peninsula. Some critics have questioned the need for the project because the projected cost of water from Poseidon’s plant is twice as expensive as the current imported supplies. Before any water leaves the ocean, Poseidon still needs a construction permit from the California Coastal Commission to build on the proposed site and a binding deal with a public agency to buy 50 million gallons a day of purified seawater.

For more information see:


  1. California Water Futures Are Trading Daily On The Chicago Mercantile Exchange.

California water futures began trading on the Chicago Mercantile Exchange in December of 2020 and are now traded daily. Water futures are distinct from other commodity futures because they do not increase the supply of water nor can the purchase of water futures facilitate moving water between locations. Proponents say that the purpose is to allow farmers to buy water futures to hedge against water price hikes that could occur in drought conditions. Supporters also claim that the market will even out supply and demand problems that accompany California’s increasing scarcity of freshwater. Opponents worry that trading water futures sets a dangerous precedent by allowing financial markets to determine the price of water, a product with no alternatives when it comes to agriculture. The impacts from the decision to trade water futures will start to become apparent with increased trading.

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  1. Clarke v. Pac. Gas & Elec. Co., 2021 U.S. Dist. LEXIS 77731 (N.D. Cal. April 22, 2021).

The district court denied Pacific Gas and Electric’s (“PG&E”) motion to dismiss plaintiff Dan Clark’s Clean Water Act (“CWA”) claim. Clarke alleged that PG&E and its predecessors left behind hazardous waste created by the Cannery manufactured gas plant (“Cannery MGP”) along the northern waterfront of San Francisco. PG&E’s motion to dismiss alleged that Clarke’s claim is barred by the statute of limitations and is insufficiently pleaded to establish subject matter jurisdiction because Clarke (i) failed to allege an ongoing discharge by a “person”; (ii) failed to allege on ongoing discharge from a “point source”; (iii) and did not provide adequate notice of the claim. In a prior proceeding, the Court denied PG&E’s motion to dismiss Clarke’s Resource Conservation and Recovery Act claims and granted PG&E’s motion to dismiss Clarke’s claims under the CWA with leave to amend. Clarke’s amended complaint alleged a series of discrete discharges into the Bay including discharges within the five-year statute of limitations. Although PG&E argued that the discharges in question from Cannery MGP constituted one single CWA violation that occurred more than five years before the claim, the Court found that the complaint contained sufficient allegations to plausibly show that each discharge could each constitute a separate CWA violation. The Court also found that Clarke properly alleged discharges were by a “person” (PG&E), from a “point source” (Cannery MGP), and that he provided adequate notice of the CWA claim in his Notice of Intent to Sue.

  1. Proposed “California Clean Water Act” (AB 377) Would Prohibit Water Quality Control Plans From Including Compliance Schedules In Water Quality Permits.

The “California Clean Water Act” (“AB 377”), introduced by Assemblymember Rivas in February 2021, would prohibit water quality control plans from including schedules for entities to come into compliance with current standards starting on January 1, 2030. AB 377 would also prohibit the State Water Resources Control Board (“Water Board”) from issuing compliance schedules (aside from those for physical construction time) for new or more stringent water quality standards adopted after January 1, 2021. The bill’s purpose is to eliminate all impaired waterways and make all waters in California suitable for drinking, swimming, and fishing by 2050. AB 377 additionally requires the Water Board to form an Impaired Waterways Enforcement Program by January 1, 2030, which would enforce any remaining water quality permit violations that cause or contribute to an exceedance of a water quality standard. As currently written, this bill will have significant impacts on entities regulated by National Pollutant Discharge Elimination System (“NPDES”) permits, Waste Discharge Requirements (“WDRs”), or waivers of WDRs. On May 20, 2021, the Assembly Appropriations Committee voted to hold the bill on the suspense file as a two-year bill.

For more information see:


  1. EPA Proposes Delay To Effective Date Of The National Primary Drinking Water Regulations: Lead and Copper Rule Revisions.

The Environmental Protection Agency (“EPA”) proposed to delay the effective date of the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions (“LCRR”) until December 16, 2021. The EPA also proposed a delay of the LCRR compliance date from January 16, 2024, to September 16, 2024. The proposed delay comes after a January 2021 executive order by President Biden entitled “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (86 FR 7037, January 25, 2021) directing heads of Federal agencies to review certain regulations, including the LCRR. Additionally, the LCRR has been challenged in court by the Natural Resources Defense Council, Newburgh Clean Water Project, NAACP, Sierra Club, United Parents Against Lead and the Attorneys General of New York, California, Illinois, Maryland, Minnesota, New Jersey, Oregon, Pennsylvania, Wisconsin, and the District of Columbia. The stated improvements under the LCRR include using science-based testing protocols to find more sources of lead in drinking water, establishing a trigger level to jumpstart mitigation earlier and in more communities, driving more and complete lead service line replacements, requiring testing in schools and childcare facilities, and requiring water systems to identify and make public the locations of lead service lines.

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  1. Biden Environmental Protection Agency To Review Trump Administration’s Section 401 Water Quality Certification Rule.

The Environmental Protection Agency (“EPA”) under Biden is reviewing the Trump administration’s Clean Water Act Section 401 Certification Rule (“Certification Rule”) that limited the scope of state authority over water quality certification. In January of 2021, President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (“Executive Order”) that directed all Federal agencies to review regulations promulgated under the Trump administration to determine whether they need to be revised or rescinded. To facilitate the review process, the Acting General Counsel for the EPA instructed the Department of Justice to seek stays or abeyances in the five lawsuits currently facing the EPA over the new rule. The Certification Rule limits (i) the timeframe for certification analysis and decisions, (ii) the scope of a section 401 certification to only discharges as opposed to the broader term “activities”, and (iii) the ability of states and tribes to impose requirements only on point source discharges into the Waters of the United States.

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  1. The Ballona Wetlands Ecological Reserve Project Moves Forward After California Department Of Fish And Wildlife Certifies Final Environmental Impact Report.

The Ballona Wetlands Ecological Reserve Project (“Project”) aims to restore the Ballona Wetlands by removing invasive plants and leftover fill from the development of Marina Del Rey, re-establish a functioning floodplain, and create natural levees for flood protection against sea level rise. The Project will also add walking paths and bike trails to make the area into more of a park. Supporters, including the director of the California Department of Fish and Wildlife (“DFW”) and groups like Friends of Ballona and Heal the Bay, say that the Project will create park space for communities without much green space and will rival Griffith Park in ecology and size. Opposition groups, like the LA Audubon Society, say the Project goes beyond restoration and will harm species that currently use the Ballona Wetlands. The Project approval by DFW has been challenged in court by the Grassroots Coalition over an allegedly incomplete environmental analysis, including the failure to include certain geotechnical issues.

For more information see:


  1. Fifteen State Attorneys General Filed Amicus Brief Supporting Environmental Groups Challenging The Trump Administration’s “Navigational Waters Protection Rule.”

Led by California and Massachusetts, fifteen states filed an amicus brief in support of a coalition of environmental group’s motion for summary judgement in their lawsuit against the Environmental Protection Agency (“EPA”) over the Trump Administration’s “Navigational Waters Protection Rule” (“Rule”). The Rule narrowed the meaning of the Clean Water Act (“CWA”) term “Waters of the United States” from the Obama administration’s 2015 rule which included waters with a “significant nexus” to jurisdictional waters in the definition. The amicus brief argues that the Rule will result in significant harms to the states—especially downstream states—due to reduced nationwide water quality protection. The fifteen states also argue that the Rule is contrary to the CWA’s text, structure, and purpose to maintain and restore the integrity of the Nation’s waters.

For more information see:





  1. Tenth Circuit Reverses Lower Court’s Ruling And Reinstates Trump Era Navigable Waters Protection Rule Redefining “Waters Of The United States” In Colorado; Rule Faces Increased Opposition Under Biden Administration.

On March 2, 2021, the Tenth Circuit rejected a federal judge’s decision to halt implementation of the Navigational Waters Protection Rule (“Rule”) in Colorado (Colorado v. United States EPA (10th Cir. 2021) 989 F.3d 874), meaning the rule is now in effect nationwide. In June of 2020, a federal judge in Colorado granted a motion made by state agencies asking for a stay in the implementation of the Rule because the conflict between Colorado’s clean water statutes and the Rule would leave portions of state waters without any permitting mechanisms. The Tenth Circuit held that Colorado failed to show it would “suffer irreparable injury” without the preliminary injunction. (Colorado, 989 F.3d at 885). The Rule became effective in all other states on June 22, 2020, although other lawsuits challenging the rule are still ongoing. The Rule was published in April of 2020 and redefined the Clean Water Act (“CWA”) term “Waters of the United States” to reduce the number of waterways and wetlands protected by the CWA. The Army Corps of Engineers and the Environmental Protection Agency (“EPA”) will review the Rule pursuant to President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.” At the end of March 2021, the EPA’s Office of the Inspector General released a report finding that the EPA failed to comply with important process “milestones” when crafting the Rule.

For more information see:




  1. City of Torrance v. Southern California Edison Co. (2021) 61 Cal.App.5th 1071.

On appeal, the district court reversed the trial court’s decision and found that clean energy credits for electricity payments do not reduce the consumer’s tax base. Torrance, a charter city, imposes several utility-related taxes on its residents including taxes on telephone communication services, natural gas, water, cable television, and electricity. Edison is the investor-owned utility serving electricity customers in Torrance and is therefore required to collect the electricity users’ tax and remit all amounts collected to Torrance. The clean energy credits at issue are Industry Assistance (“IA”) credits and are part of the California Air Resource Board’s financial assistance programs for electric utility customers affected by greenhouse gas emission reduction programs such as the California Cap-and-Trade Program. The California Public Utilities Commission (“Commission”) determines the amount of the IA credit. For purposes of administrative convenience, Edison disburses the IA credit as a credit on an electricity consumer’s bill, as directed by the Commission. Under Torrance’s view, a user’s IA credit, if any, would not affect the tax base because it is unrelated to the charge for the electricity used by the consumer. Edison contends the tax base is equal to the net amount it bills electricity consumers and therefore the consumer’s electricity users’ tax base (and, ultimately, the amount of the tax) will necessarily be reduced whenever a consumer receives an IA credit.

The City of Torrance’s complaint sought declaratory relief concerning the interpretation and application of the electricity tax ordinance and asserted that Edison failed to comply with the ordinance by not collecting the proper amount of electricity users’ tax from consumers. Torrance also sought to recover the unpaid taxes, together with penalties and interest, from Edison. The trial court sustained Edison’s demurrer to Torrance’s original complaint without leave to amend and entered a judgment of dismissal. The trial court found Edison had calculated the electricity users’ tax properly and, in addition, Torrance’s claim to recover unpaid taxes from Edison (as opposed to electricity consumers) failed as a matter of law. The district court reversed and agreed with Torrance that the electricity tax ordinance cannot reasonably be construed to reduce Torrance’s electricity users’ tax base by the value of IA credits distributed by Edison. However, the district court adopted Edison’s position that Torrance cannot recover unpaid taxes from Edison and must instead amend its complaint to include electricity consumers as defendants.

  1. Twenty-One State Attorneys General Petition for Review of the Environmental Protection Agency’s Greenhouse Gas Regulation Threshold Rule.

Led by California, twenty-one state attorneys general and six local governments filed a lawsuit challenging the Environmental Protection Agency’s (“EPA”) final rule that will set a sector-by-sector threshold for the regulation of greenhouse gas (“GHG”) emissions from stationary sources under the Clean Air Act (“CAA”). The lawsuit argues that the EPA established an arbitrary test without providing adequate notice to the public and an opportunity to comment, which is not allowed under the CAA. The rule, titled “Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories,” states that industries that emit less than 3% of total U.S. GHG emissions, the industry cannot be regulated under the CAA. This rule would effectively remove three-quarters of the country’s GHG emitters from regulation under the CAA.

For more information see:




  1. Sixteen State Attorneys General Filed Comments Urging the Environmental Protection Agency To Reopen Review of Particulate Matter NAAQS.

Led by New York, sixteen state attorneys general filed comments urging the Environmental Protection Agency (“EPA”) to change its decision to leave the existing National Ambient Air Quality Standards (“NAAQS”) in place. The comments state that a significant and growing body of scientific evidence shows that the existing NAAQS are inadequately protective of public health. The comments cite three recently published scientific studies that provide further evidence of “both the immediate harms of exposure to particulate matter during a respiratory disease pandemic and the long-term cognitive impacts” of exposure to fine particulate matter (PM2.5). The comments are similar to concerns raised by comments submitted by state attorneys general in July of 2020.

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  1. Biden Administration Announces Greenhouse Gas Pollution Reduction Targets After Rejoining The Paris Climate Agreement.

President Biden announced new greenhouse gas (“GHG”) emission reduction targets for the year 2030 to fulfill Paris Climate Agreement goals. Principally, Biden set a goal to reach 100% carbon pollution-free electricity by the year 2035. To reach this goal, the administration proposed retrofitting power plants with carbon capture and using existing nuclear energy plants. Other goals include promoting carbon capture and new sources of hydrogen to power industrial facilities. The administration also promises significant investments in clean energy sectors, technologies to reduce emissions associated with construction, and transportation infrastructure.

For more information see:



  1. Biden Administration Initiates Review Of Energy Conservation Standards For Consumer Products.

President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (“Executive Order”), which requires the Department of Energy (“DOE”) to consider suspending, revising, or rescinding Trump-era appliance- and building-efficiency standards. President Biden instructed DOE to propose major revisions to the rule on energy conservation standards for consumer products and commercial/industrial equipment by March 2021; propose major revisions to the rule on energy conservation program appliance standards by March 2021; review DOE’s notice on energy efficiency improvements in the 2018 IECC by May 2021; and review DOE’s notice on building energy efficiency standards by May 2021. DOE has begun to publish notices in the Federal Register for proposed and final rules pursuant to the Executive Order.

The Energy Policy and Conservation Act (“Act”) directs the DOE to establish energy conservation standards for most major household appliances and many types of commercial equipment. DOE’s energy conservation program includes testing, labeling, and enacting energy conservation standards, as well as product certification and enforcement. These standards are meant to reduce energy demand and increase energy efficiency to reduce greenhouse gas emissions. DOE under the Trump Administration declined to set compliance dates for certain standards, modified other standards, and proposed changes to its process for developing standards and testing equipment. The Trump DOE additionally finalized a new rule, known as the “economic justification rule” that changes the way costs are considered during the standard development process. Previously, DOE would set standards that provide maximum energy savings and adjust them as needed to arrive at a level where costs to manufacturers and consumers could be justified. Now, DOE will simultaneously consider costs as it sets the standards. On April 12, 2021, DOE published a notice of proposed rulemaking to reverse the changes to the process rule.

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  1. Twelve Attorneys General Urge Department Of The Interior To Reverse Trump Era Rollback Of Migratory Bird Treaty Act Protections.

Led by New York, a coalition of twelve attorneys general submitted comments to the Department of the Interior (“DOI”) in support of restoring protections under the Migratory Birds Treaty Act (“MBTA”). The comments focus on a rule promulgated by DOI under the Trump Administration that interpreted the MBTA as not prohibiting the incidental take of protected bird species. The AGs contend that the rule is invalid because it is not represented in the MBTA’s text, purpose, and history and is contrary to federal courts upholding MBTA prosecutions for incidental take. The AGs also reference previous comments and ongoing litigation based on the rule. The comments urge DOI to further delay the effective date of the rule and ultimately a reversal of the rule entirely.

For more information see:



  1. Eighteen Attorneys General File Lawsuit Against U.S. Fish And Wildlife Service And National Marine Fisheries Service Challenging Two Rules Concerning The Endangered Species Act Habitat Designations.

Led by California and Massachusetts, eighteen attorneys general filed a lawsuit against the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) over newly promulgated rules that limit habitat protections under the Endangered Species Act (“ESA”). The lawsuit targets two rules, the first that created a narrow definition of “habitat” for

purposes of making critical habitat designations under Section 4 of the ESA. The lawsuit argues that this definition “fails to account for species’ need to expand their current ranges or to migrate to currently unoccupied habitat in response to existential threats such as climate change and habitat destruction to ensure species recovery and survival as mandated by the ESA.” The second rule was promulgated just by FWS and created a new process for excluding areas of critical habitat when making such designations. The AGs contend that the second rule gives developers and extractive industry inappropriate influence over Endangered Species Act critical habitat designation processes.

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  1. Amicus Brief Filed By Twelve Attorneys General In Support Of District Court’s Decision To Vacate Nationwide Permit 12, Against U.S. Army Corps of Engineers’ Opposition.

California led a coalition of twelve attorneys general in filing an amicus brief to the U.S. Court of Appeals for the Ninth Circuit to uphold the district court’s ruling that the U.S. Army Corps of Engineers (“USACE”) improperly reauthorized the Nationwide Permit 12. The district court held that reauthorization should be vacated because USACE did not engage in Endangered Species Act (“ESA”) mandated consultation with the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”). Nationwide Permit 12 relies on programmatic consultation between USACE, FWS, and NMFS to prevent harm to endangered and threatened species while allowing qualifying infrastructure projects to proceed without obtaining project-specific Clean Water Act (“CWA”) permits, which would require project-specific ESA consultation. USACE contends “because it will be consulting with the Services on individual projects where warranted, it need not consult with the Services regarding the reissuance of NWP 12 as a whole,” and thus its actions were proper. In their brief, the AGs emphasized that the ESA “does not permit an ‘incremental-step’ consultation approach as a substitute for consultation on the overall agency action,” and warned that allowing such an approach would “essentially [read] the requirement of programmatic consultation out of the regulations.”

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  1. Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.

The appellate court reversed the trial court’s ruling and directed the City of Berkeley to grant plaintiffs Ruegg & Ellsworth and Frank Spenger Company’s development application. Plaintiffs applied to the City of Berkeley for approval of a mixed-use development pursuant to Government Code section 65913.4, which was created by Senate Bill 35 (“SB 35”) and provides for streamlined, ministerial approval of affordable housing projects meeting specified requirements and conditions. Berkeley denied the application stating that SB 35 does not apply to the project because the law does not apply to sites where the development would require the demolition of a historic structure that was placed on a national, state, or local historic register. The proposed site is part of a three-block area the Berkeley Landmarks Preservation Commission designated a City of Berkeley landmark in 2000, as the location of the West Berkeley Shellmound (“Shellmound”). Shellmounds were “sacred burial sites for the average deceased mound-dweller,” slowly constructed over thousands of years from daily debris and artifacts left by the tribelet communities that lived on the site. The Shellmound is listed in the California Register of Historical Resources and was built in 3,700 B.C., although nothing remains of the Shellmound above ground. The appellate court therefore found that the Shellmound is not a “structure” within the meaning of SB 35 and therefore the project does qualify for streamlined, ministerial approval.

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