Welcome to Abbott & Kindermann, Inc.’s Mid-Year Cumulative Environmental Action News Update. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021. Bolded titles indicate new updates.


To read the June 2021 Environmental Action News post, click here:


To read the May 2021 Environmental Action News post, click here:


To read the March 2021 Environmental Action News post, click here:



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. Antelope Valley Groundwater Cases (2021) 63 Cal.App.5th 17 – California Appellate Court Upheld Use Of Equitable Apportionment Principles In Approving A Physical Solution To An Overdrafted Basin.

In Antelope Valley Groundwater Cases, the appellate court found that adopting a physical solution to an overdrafted groundwater basin comports with California water rights priorities because the physical solution comports with California law governing water priorities and the constitutional “reasonable and beneficial use” requirement. This case is part of a comprehensive groundwater adjudication involving roughly 70,000 landowners in the overdrafted Antelope Valley Groundwater Basin (“basin”). A vast majority of parties settled their competing groundwater rights claims and agreed to support a proposed plan (“Physical Solution”) to bring the basin into hydrological balance with the available “native safe yield” (“NSY”). In this case, the plaintiff Tapia was not one of the parties to the settlement agreement. Before approving the Physical Solution, the trial court conducted a separate trial on Tapia’s unsettled claims and defenses and found that the public water suppliers had established prescriptive rights in the NSY as to Tapia, and that Tapia had not adequately shown a basis for his requested allocation of water under the Physical Solution. In a separate trial, the court approved the Physical Solution.

On appeal, Tapia raised three claims: (1) the Physical Solution violates California water rights priorities because it allocates portions of the NSY to the public water suppliers (“PWS”) while denying Tapia his claimed allocation of that NSY; (2) the Physical Solution is inequitable because overlying owners with demonstrable existing pumping were allocated proportionate shares of the remaining NSY while Tapia, despite similarly showing existing pumping, did not receive a proportionate share; and (3) the Physical Solution violates the constitutional requirement that available water be applied to reasonable and beneficial uses. The appellate court found that substantial evidence supported the trial court’s decision as to the prescriptive rights because the trial court considered Tapia’s evidence but made a credibility determination based upon other evidence that Tapia’s claimed water use far exceeded the amount required on the land under cultivation. Therefore, to the extent the PWS’s uses of the groundwater had ripened into a prescriptive interest in the available groundwater, the PWS’s water use was transformed from an appropriative use into rights entitled to equivalent priority with the rights of overliers. As to Tapia’s second claim, the appellate court held that when apportioning water in an overdrafted basin among correlative rights holders, a court may employ equitable apportionment principles to the extent necessary to reach a practical apportionment of the available water among parties holding equivalent priorities. Finally, the appellate court held that when apportioning water in an overdrafted basin among correlative rights holders, a court may employ equitable apportionment principles to the extent necessary to reach a practical apportionment of the available water among parties holding equivalent priorities.

  1. State Water Resources Control Board Issued Curtailment Orders To All 861 Water Right Holders In The Upper Russian River.

In response to the water level in Lake Mendocino dropping below minimum storage levels, the State Water Resources Control Board (“SWRCB” or “Board”) issued curtailment orders to all 861 water right holders in the Upper Russian River. The orders make it illegal to draw or divert water from the Upper Russian River, except as needed to ensure human health and safety. SWRCB also released an analysis of the Lower Russian River demonstrating that approximately 222 right holders need to be curtailed to meet demands on the river and that the Board anticipates issuing orders to these right holders next week. These orders were made possible after the Board adopted an emergency drought regulation on June 15 that authorized curtailments in the Upper Russian River if Lake Mendocino did not maintain minimum storage requirements, and in the Lower Russian River if flows were not enough to satisfy all water rights claims. SWRCB stated that if depletion of Lake Mendocino continues at this rate, the 20,000 acre-feet, end-of-season minimum storage level could be reached almost six weeks ahead of schedule.

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  1. State Water Resources Control Board Approves Emergency Curtailment Measures For The Delta Watershed Following Acute Water Shortages.

On August 3, 2021, the California State Water Resources Control Board (“SWRCB” or “Board”) approved an emergency curtailment regulation for the Delta watershed. The regulation aims to preserve stored water to protect drinking water supplies, prevent salinity intrusion and algal blooms, and minimize impacts to fisheries and the environment. Curtailment orders could be sent to approximately 5,700 of the 6,600 water right holders in the Delta watershed. The Board also warns that should conditions worsen, the remainder of the water right holders could see curtailment orders as well. SWRCB estimates that without the regulation, the drinking water supply for 25 million Californians and the irrigation supply for over 3 million acres of farmland could be at significant risk should the drought continue into next year. Before the emergency regulation becomes effective and curtailment orders can be issued, the regulation must be approved by the Office of Administrative Law (“OAL”) and filed with the Secretary of State. Government Code section 11346.1(a)(2) requires that SWRCB wait at least five working days after providing the notice of proposed emergency action before submitting the proposed action to the OAL. Once OAL receives the proposed rule their website will be updated with directions for submitting comments.

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  1. Antelope Valley Groundwater Cases (2021) 62 Cal.App.5th 992 – California Appellate Court Limited Groundwater Pumping In An Overdrafted Basin In Antelope Valley Groundwater Cases.

In Antelope Valley Groundwater Cases, the Fifth District Court of Appeals for California held that where a court must adopt a physical solution and allocate a limited water supply that is insufficient to meet the needs of all water right holders in an overdrafted basin, a court may equitably allocate the available water resources among competing claimants with equivalent priorities. The case, which started when one landowner filed suit and claimed superior groundwater rights to the overdrafted Antelope Valley Groundwater Basin (“basin”), became a comprehensive groundwater adjudication involving roughly 70,000 landowners in the Antelope Valley. Two separate classes of landowners are included in the suit as well as the United States. One class, referred to as the “Non-Pumper Class,” was formed by the court to represent the interests of a large group of persons who owned overlying land in the Antelope Valley Adjudication Area (“AVAA”) but who had not pumped water from the aquifer for any purposes. Another smaller class, the “Small Pumper Class,” was formed by the court to represent the interests of another large group of overlying landowners who historically had pumped not more than 25 acre-feet per year from the aquifer during the relevant period.

In this case, the appellate court affirmed that the trial court’s physical solution equitably allocated the native safe yield. The court explained that a physical solution can “subordinate” overlying rights of non-pumpers to overlying rights of landowners who are currently pumping but cannot “entirely extinguish unexercised” water rights. The court thusly allowed Non-Pumper Class members to pump groundwater in the future without paying any assessments only if the pumping is de minimis and limited to domestic use for a single household. The court also affirmed other established principles concerning water right and physical solution: (i) allocation of native safe yield can be permanent, provided that subsequent unreasonable use may be challenged; (ii) provisions permitting transfer or carrying over of water allocations do not violate the doctrine of reasonable and beneficial use; and (iii) while courts should consider a physical solution regardless of whether all parties agree to it, courts need not consider every proffered alternative physical solution. An appeal of this decision has been filed by one landowner who had pumped groundwater but was not allocated a share of the physical solution. The trial court rejected evidence of his claimed amount of pumping and reasonableness of his beneficial use and the appellate court affirmed.


  1. Sweeney v. California Regional Water Quality Control Board (2021) 61 Cal.App.5th. 1.

In September 2020, U.S. District Court Judge Kimberly Mueller held that defendants John Sweeney and Point Buckler Club (collectively, “Sweeney”) violated sections 301 and 404 of the Clean Water Act (“CWA”) for unlawfully constructing a levee and other structures on Point Buckner Island in the San Francisco Bay Delta (United States v. Sweeney, 2020 U.S. Dist. LEXIS 159417 (E.D. Cal. September 1, 2020). Defendants constructed a levee, multiple structures, and other activities that added pollutants to the Delta. The defendants’ actions violated multiple parts of the CWA, including unlawful dredged or fill material, point source discharge, and disruption of Waters of the United States (“WOTUS”). As a result of defendants’ actions, the United States estimated nearly 30 acres of tidal waters and wetlands were lost affecting the Delta’s chemical, physical, and biological functions. Plaintiffs requested declaratory relief while defendants denied liability and offered several affirmative defenses.

The Court held that a preponderance of the evidence showed that defendants purchased Point Buckley Island, built a boat ramp without seeking proper permitting, erected structures on the island without seeking permitting, and added specific discharge pollutants to the surrounding waterway in violation of the CWA. As the Court explained, Point Buckley Island’s location lies directly within a tidal channel and marsh land as defined under the WOTUS Rule. The Court further described how the aerial photographs admitted into evidence showed where defendants had discharged pollutants in violation of the CWA and WOTUS Rule and rejected all the affirmative defenses offered by defendants. The Court then issued a declaratory judgment for the United States, directing that defendants: (i) restore and maintain the chemical, physical, and biological integrity of the waterways; and (ii) permanently protect the waterways.

The Court of Appeal reversed, holding that the California Regional Water Quality Control Board (“Board”) correctly issued abatement and cleanup orders for the numerous violations of environmental laws and regulations, as well as a separate assessment of civil penalties amounting to $2.8 million. The Court held that Sweeney violated the Porter-Cologne Act and the Board’s water quality control plan. It further held that Sweeney violated the CWA because Sweeney failed to obtain a CWA permit for the Point Buckley Island modifications, thus creating unauthorized discharge of pollutants. As for the Board’s abatement orders, the Court held that the Board acted reasonably when it required Sweeney to provide accurate technical reports assessing the water quality and impacts to the tidal marshes and, thus, the trial court erred when it found a cleanup and abatement order was unenforceable. The Court next held that the trial court’s decision was premised on erroneous conclusions of law or factual findings that were unsupported by the evidence. The Court of Appeal further supported the Board’s assessment of civil penalties holding that order was sufficiently supported by the Board’s findings and was not a retaliatory action. The Court of Appeal remanded the case to the trial court with instructions to vacate the writs of mandate and reinstate the Board’s orders to enforce the cleanup and abatement order and civil penalties order.

  1. Governor Newsom Extends Drought Emergency To 41 California Counties.

California Governor Gavin Newsom updated his April 21, 2021, drought emergency proclamation to include a total of 41 counties that make up 30% of California’s population. On May 10, 2021, Newsom added Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed counties to the list of counties under a drought state of emergency. The proclamation directs the State Water Board to consider modifying requirements for reservoir releases and diversion limitations to conserve water upstream later in the year to maintain water supply, improve water quality and protect cold water pools for salmon and steelhead. The state of emergency also enables flexibilities in regulatory requirements and procurement processes to mitigate drought impacts and directs state water officials to expedite the review and processing of voluntary transfers of water from one water right holder to another.

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  1. State Water Resources Control Board Proposed Emergency Rulemaking To Protect Water Supplies And Threatened And Endangered Fish In The Russian River Watershed.

On June 22, 2021, the State Water Resources Control Board (“SWRCB” or “Board”) issued a notice of proposed emergency rulemaking to address drought conditions in the Russian River watershed. The proposed regulations were approved unanimously by the Board during the June 15, 2021, Board Meeting following Governor Gavin Newsom’s state of emergency declaration in April. The Governor’s April 2021 proclamation also suspended environmental review under the California Environmental Quality Act for certain activities, including the adoption of emergency regulations by the State Water Board pursuant to Water Code section 1058.5. SWRCB findings state the need to curtail water diversions in response to decreased natural or abandoned flows so that water is available for: (1) senior water right users; (2) water right permits’ drought-adjusted minimum permit flow requirements for fish and wildlife, aligned with minimal flows for threatened and endangered fish species; and (3) minimum human health and safety needs. Proposed curtailments include both the Upper and Lower Russian River watershed. Upper Russian River watershed curtailments would be triggered if Lake Mendocino storage targets are not met and supplemental storage releases are occurring to satisfy in basin uses, while Lower Russian River watershed curtailments would be triggered when flows are insufficient to satisfy all water right demands. The Board also stressed the need to ensure adequate carry-over storage in Lake Mendocino to ensure continued access to water for minimum human health and safety in the event of prolonged drought conditions. Government Code section 11346.1(a)(2) requires that SWRCB wait at least five working days after providing the notice of proposed emergency action before submitting the proposed action to the Office of Administrative Law (“OAL”). Once OAL receives the proposed rule their website will be updated with directions for submitting comments.

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  1. State Water Resources Control Board Issues Report Of Investigation And Draft Cease And Desist Order To Nestlé Over Alleged Unauthorized Diversions Of Water.

On April 23, 2021, the California State Water Resources Control Board (“SWRCB”) sent a Report of Investigation (“ROI”) and draft Cease and Desist Order (“CDO”) to Nestlé Waters North America (“Nestlé”) for unauthorized diversion and threatened unauthorized diversions from Strawberry Creek in San Bernardino National Forest. This ROI was a revised version of a 2017 ROI and includes numerous conclusions relating to Nestlé’s diversion and use of water. The draft CDO alleged that Nestlé is subject to a CDO for the unauthorized diversion of water identified in the ROI conclusions and, if finalized, would order Nestlé to immediately cease all unauthorized diversions of water. The SWRCB started an investigation of Nestlé after the board received several water rights complaints and an online petition against Nestlé starting in April 2015. The complaints alleged diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting, all regarding Nestlé’s diversion of water from springs at the headwaters of Strawberry Creek bottling under the Arrowhead label. Nestlé’s response to the SWRCB’s letter alleged errors in the ROI and draft CDO but included a promise to abide by any final determinations after the conclusion of the appeal process.

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  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.

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  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. Environmental Protection Agency And Department Of The Army Seeking Public Input On Review Of The Trump Administration’s Section 401 Water Quality Certification Rule.

The Environmental Protection Agency (“EPA”) and the Department of the Army (“Army”) are 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. On July 30, 2021, the EPA and Army announced upcoming engagement opportunities on defining “Waters of the United States” (“WOTUS”). The EPA published a schedule for initial public meetings to hear from interested stakeholders on their perspectives on defining “waters of the United States” under the Clean Water Act and how to implement that definition as the agencies pursue this process. The agencies are also accepting written recommendations from members of the public and are planning further opportunities for engagement. 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. 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. The EPA and Army intend to revise the definition of WOTUS following a process that includes two rulemakings. First, a foundational rule would restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. A separate, second rulemaking process would refine this regulatory foundation and establish an updated and durable definition of “Waters of the United States.”

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  1. City of Duarte v. State of Water Resources Control Board (2021) 60 Cal.App.5th 258.

The Court of Appeal reversed and remanded the trial court’s ruling by holding that water quality control boards could consider economic factors in satisfaction of Water Code section 13241 for a NPDES permit. The Court further stated that the water control boards gave well supported reasoning to comply with the statutory requirements. The appeal arose when a permit issued by state and local water boards required 86 Southern California municipalities to reduce effluent discharge pollutants in stormwater sewage systems. The trial court ruled that the water boards and state did not sufficiently consider factors outlined in Section 13241 of the Water Code before issuing a permit, and this failure invalidated portions of the permits that were issued. The Court of Appeal disagreed. It held that the numeric effluent limitations in the Permit issued was no more stringent than the requirements outlined in the CWA.  The Court reviewed the factual findings under the substantial evidence standards and held that the Water control boards had sufficiently considered the necessary factors under Water Code Section 13241, including the need to consider “economic considerations” under subsection (d).

The Court held that the water boards had significant discretion when considering the factors, so long as they are supported by evidence in the record and factual findings. As for the “economic considerations” factor at issue, the Court reasoned that this discretion should be left with the water boards because in exceptional financial downturns like those resulting from the COVID-19 pandemic, the water boards must retain control so that they can account for these economic context when determining compliance with the permit requirements. The reversed judgment was and remanded with instructions to the trial court.

  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.

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  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. California State Water Resources Control Board Formally Adopts State Wetland Definition And Procedures For Discharges Of Dredged Or Fill Material To Waters Of The State.

On April 6, 2021, the State Water Resources Control Board (“SWRCB” or “Board”) adopted a resolution to expressly confirm that the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” is in effect as state policy for water quality control. The Definitions and Procedures will be included in the forthcoming Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California. The Procedures consist of four major elements: (1) a wetland definition; (2) a framework for determining if a feature that meets the wetland definition is a water of the state; (3) wetland delineation procedures; and (4) procedures for the submittal, review and approval of applications for Water Quality Certifications and Waste Discharge Requirements for dredge or fill activities. SWRCB lists several reasons for the formal adoption of the procedures. First, the Board sites the need to strengthen protection of waters of the state that are no longer protected under the Clean Water Act (“CWA”) due to U.S. Supreme Court decisions, since the Water Boards have historically relied on CWA protections in dredged or fill discharge permitting practices. Second, there is inconsistency across the Regional Water Boards in requirements for discharges of dredged or fill material into waters of the state, including wetlands. Finally, current regulations have not been adequate to prevent losses in the quantity and quality of wetlands in California, where there have been especially profound historical losses of wetlands.

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  1. United States v. Lucero (9th Cir. 2021) 989 F.3d 1088.

The Ninth Circuit reversed a conviction of Defendant Lucero for discharging a pollutant in violation of the Clean Water Act (“CWA”), because the jury instruction failed to clearly indicate that: (i) Mr. Lucero must have knowingly discharged; and (ii) the error was not harmless. The Ninth Circuit further held that the jurisdictional waters were clearly defined at the time of defendant’s trial, and that the courts could not rely on the 2020 regulatory changes in the law to retroactively apply standards for conviction. Mr. Lucero was executing a dumping scheme whereby in 2014, during a particularly drought heavy year, he was dumping debris on sites in the San Francisco Bay Area that would have been inundated with water and subject to protection under the Waters of the United States (“WOTUS”) definition of the CWA. A jury convicted Mr. Lucero on three counts of violating the CWA for illegal discharges into navigable waters without a permit. Upon conviction, Mr. Lucero filed the subsequent appeal. Mr. Lucero’s defense included three main arguments: (1) the jury instruction omitted the CWA’s knowledge element, (2) the WOTUS definition is unconstitutionally vague; and (3) the 2020 WOTUS rule adoption should apply retroactively.

Regarding the knowledge element, the Ninth Circuit declined to further improve on what is “into water” and what is “to waters of the United States.” Instead, the panel focused on the knowledge element itself and stated that the burden is merely to prove that the defendant knowingly discharged “into water.” It then held that since the facts presented did not convey that Mr. Lucero knowingly discharged into water, the jury instruction was not properly read. The Court further reasoned that because the jury instruction was vague, and the panel could not say whether the jury would have properly reached the same guilty verdict, it reversed the conviction and remanded the case for a new trial with clear jury instructions.

As to Mr. Lucero’s second argument that the WOTUS definition is unconstitutionally vague, the Panel disagreed. It held that it is not unconstitutional simply by being difficult to determine how it applies. Instead, it must be proven to be unreasonable to the point where no standard of conduct could apply at all. The Court noted that while the WOTUS rule is complex it provides ascertainable standards to protect jurisdictional waters.

Lastly, Mr. Lucero called on the Court to apply the 2020 WOTUS rule retroactively to conviction, but the Court rejected that argument. It held that generally legislative actions lack retroactive effect unless so indicated by Congress expressly. As the Panel indicated, the 2020 WOTUS rule was intended to be applied prospectively since the executive branch did not expressly indicate that enforcement would apply retroactively. The Court reversed the conviction and remanded the case for a new trial with clear jury instructions.

  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.

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  1. California AG Filed Comments To The U.S. Army Corps Of Engineers Regarding Proposed Wetland Filling And Gas Drilling In The San Francisco Bay-Delta.

On April 2, 2021, acting California Attorney General Mathew Rodriguez filed comments to the U.S. Army Corps of Engineers (“USACE”) regarding concerns over a Clean Water Act (“CWA”) Section 404 permit (“permit”) to fill wetlands and conduct exploratory oil and gas development in the San Francisco Bay-Delta. Oil and gas developer Sunset Exploration filed the permit as part of its proposed Hunter’s Point Natural Gas Well Drilling Project (“Project”) in Suisun Marsh. The California AG submitted several recommendations to USACE, including urging the agency to: (i) make the application itself available to the public; (ii) review the project’s potential environmental justice and greenhouse gas impacts; (iii) consult with wildlife agencies concerning potential impacts to all federal- and state-listed species; (iv) consider alternatives that would not harm the saltwater marsh habitat and species, (v) perform an environmental impact statement rather than the proposed environmental assessment; and (vi) evaluate all available mitigation measures. The AG also asked USACE to defer issuing the permit until the San Francisco Bay Conservation and Development Commission (“Commission”) determines whether the Project is consistent with the enforceable policies of the Commission’s federally approved coastal management program pursuant to the Coastal Zone Management Act.

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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.

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  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.

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  1. United Nation’s Intergovernmental Panel On Climate Change Releases Sixth Climate Assessment Report.

The Sixth Climate Change Assessment (“Assessment”) from the United Nation’s Intergovernmental Panel on Climate Change (“IPCC”) was released in August of 2021. According to the Assessment, evidence of observed changes in extremes such as heatwaves, heavy precipitation, droughts, and tropical cyclones, and their attribution to human influence, has strengthened since the Fifth Assessment Report. The Assessment details several potential climate scenarios, all of which show that surface temperature will continue to increase until at least the mid-century. These scenarios show that the goal of the Paris Climate Agreement to keep global warming under 1.5°C will not be met unless deep reductions in carbon dioxide and other greenhouse gas emissions occur in the coming decades. For the western United States in particular, the report projects that the western United States will experience increases in drought and fire weather, extreme precipitation, and river and pluvial flooding over the course of the twenty-first century.

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  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.

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  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.

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  1. Environmental Protection Agency Proposes Reinstating California’s Waiver For Car Emission Standards, Reversing Trump Era Rule.

The U.S. Environmental Protection Agency (“EPA”) issued a Notice of Reconsideration of the Trump Administration’s 2019 final rule titled The Safer Affordable Fuel-Efficient Vehicles Rule Part One: One National Program Rule (“Rule”). In 2019, the Trump Administration EPA finalized the rule which revoked California’s waiver for greenhouse gas pollution standards for cars under the Clean Air Act (“CAA”). California is the only state eligible for such a waiver because California had vehicle emission standards in place before congress passed the CAA. The rule affected more than just California, as the waiver allowed other states to adopt California’s more strict standards. EPA Administrator Michael Regan stated that “[he is] a firm believer in California’s long-standing statutory authority to lead. The 2019 decision to revoke the state’s waiver to enforce its greenhouse gas pollution standards for cars and trucks was legally dubious and an attack on the public’s health and wellbeing.”

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  1. Twenty-One Attorneys General Sent Letter To Congressional Leaders In Support Of Congressional Review Act Resolution To Reinstate Environmental Protection Agency Regulations On Methane Emissions.

On April 26, 2021, a coalition of twenty-one attorneys general led by New York Attorney General Letitia James sent a letter to congressional leaders expressing support of a Congressional Review Act (“CRA”) resolution to invalidate a Trump administration rule that rescinded emission controls for the oil and gas industry. The Environmental Protection Agency (“EPA”) under Trump removed controls on emissions of methane and harmful conventional pollutants that the EPA acknowledged would trigger significant increases in pollutant emissions. The coalition of AGs described the rescission as doing away with “common sense, cost-effective approaches” established by the Obama administration that protected public health and the environment as well as the efficiency of natural gas operations by reducing leakage in all segments of the industry. If the CRA resolution passes, the EPA will be precluded from promulgating a rule that is substantially the same as the one that was repealed.





  1. Cabatit v. Sunnova Energy Corporation (2020) 60 Cal.App.5th 317.

In a suit arising out of the careful examination of a residential solar contract, the Court of Appeal stated that in narrow contexts a mandatory arbitration clause can be invalid. The Court held that a mandatory arbitration clause is unconscionable when the clause is not called to the signatory’s attention at the time of signing and the clause is clearly one-sided. The case before the Court arose when plaintiffs, the Cabatits, entered into a solar power lease agreement with Sunnova Energy Corporation. After the unit was installed, leaking occurred around the solar panels leading to roof damage. At the time the parties entered into the contract, the Sunnova salesperson made a presentation at the Cabatit home telling the family to initial certain provisions of the contract and did not explain or have them read them through carefully. The family lacked internet access and a computer, and Mrs. Cabatit did not speak English well enough to understand the complexity of the contract she signed.

After the Cabatits filed their lawsuit, Sunnova responded stating that the arbitration clause required the case to proceed through arbitration first. Plaintiffs argued that the arbitration clause should be stricken because the contract was both procedurally and substantively unconscionable. Finding for Plaintiffs, the Court held that the contract was procedurally unconscionable for several reasons: (i) the Cabatits had no opportunity to “bargain over its terms”; (ii) the arbitration clause was not called to the attention of the Cabatits; (iii) the Cabatits were not given a copy of the contract; and (iv) the contract was presented as a standardized agreement thus “supporting a finding of a high degree of procedural unconscionability.” The Court further held that the contract was substantively unconscionable because of the “breadth of the term ‘default’ favoring Sunnova, and the limitations imposed on the Cabatits regarding their own available court relief.” The Court affirmed the trial court’s ruling that the contract was in fact unjustifiably one-sided and held that the arbitration clause was unenforceable.

  1. Biden Administration Plans To Allow Commercial Offshore Wind Farms In California.

The Biden administration has pledged to rapidly increase offshore wind energy in the United States and has identified two areas off the California coast for development of wind turbines: a 399-square-mile area in Morro Bay about 20 miles offshore of central California and another area off the coast of Humboldt County near the Oregon border. Traditionally, offshore wind units have been blocked in California due to logistical challenges and opposition from the Navy. Opponents from the California fishing industry claim that the Biden administration plan is larger and more potentially disruptive to marine life than they had discussed, with the Morro Bay location being substantially larger than the earlier 120-square-mile proposal. Other opponents emphasize that offshore wind is expensive, double that of an advanced nuclear reactor and three times the cost of natural gas. Proponents, including California Governor Gavin Newsom, cite rapidly advancing climate change and the need to transition to renewable energy as well as the creation of new jobs. Offshore wind is new to the United States, although the practice is widely used in Europe. The first ever commercial-scale offshore wind farm in the United States was recently approved by the Biden administration and the Department of the Interior (“DOI”) is currently reviewing about a dozen other projects along the East Coast. The DOI plans to auction a lease in one of the identified areas in California in the middle of 2022.

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  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. The United States Fish and Wildlife Service Proposed To List The Emperor Penguin As Threatened Species Under The Endangered Species Act.

On August 3, 2021, the U.S. Fish and Wildlife Service (“USFWS”) proposed to list the emperor penguin as a threatened species under section 4(d) of the Endangered Species Act (“ESA”). USFWS cites habitat loss due to melting sea ice caused by climate change as the reason for listing. While emperor penguin populations are still large, the species is in danger of extinction in the foreseeable future in a significant portion of its range. USFWS states that to the best available science, the global population size of Emperor Penguins will likely decrease between 26 percent and 47 percent by 2050 under low and high carbon emissions scenarios, respectively. The proposed rule to list the emperor penguin as threatened under the ESA is published in the Federal Register and USFWS will consider comments from all interested parties received by October 4, 2021.

For more information see:



  1. United States Fish & Wildlife Service v. Sierra Club, Inc. (2021) 209 L.Ed.2d 78.

The United States Supreme Court held that the deliberative process privilege applies to in-house drafts of an agencies’ last word on a proposal to list a potentially endangered or listed species. As the High Court held, when agencies deliberate about the potential threats to foreseeable listed species through the biological opinion process, those internal draft deliberations shall be protected by the “deliberative process privilege” under Exemption 5 to the Freedom of Information Act (“FOIA”). FOIA mandates that a federal agency disclose all documents generated by an agency when making a biological assessment on a potential listing of a species unless the documents fall into one of nine exemptions to FOIA. Exemption 5 is the inter-agency or intra-agency exemption which incorporates the deliberative process privilege shielding the agencies from disclosing “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” (NLRB v. Sears, Roebuck & Co., 95 S.Ct. 1504, 1544 (1975).) The Court concluded that so long as the document does not have “real operative effect” or reflect the “consummation’ of the agency’s decision-making process” it is protected by the deliberative process privilege. It, thus, held that “if the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.” The Court concluded by stating that draft biological opinions are both prejudicial and deliberative and therefore should be protected.

  1. S. Fish And Wildlife Service And The National Marine Fisheries Service Start Rulemaking Process To Rescind, Revise, and Reinstate Endangered Species Act Regulations.

Pursuant to an Executive Order issued by President Biden, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) announced upcoming rulemaking activities with regard to five Endangered Species Act (“ESA”) regulations finalized by the Trump Administration. In January of 2021, President Biden issued Executive Order 13990, which directed all federal agencies to review and address agency actions during the last four years that conflict with Biden-Harris administration objectives, such as addressing climate change. The proposed changes are as follows:

  • Rescind regulations that revised FWS process for considering exclusions from critical habitat designations under section 4(b)(2) of the ESA.
  • Rescind regulatory definition of the term “habitat” for the purposes of critical habitat designation.
  • Revise regulations for listing species and designating critical habitat to reinstate prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination,” along with other potential revisions also under discussion.
  • Revise regulations for interagency cooperation including the definition of “effects of the action” and associated provisions to that portion of the rule, with other potential revisions also under discussion.
  • Reinstate protections for species listed as threatened under the “blanket 4(d) rule,” which was withdrawn by the previous administration (84 Fed. Reg. 44753; August 27, 2019). The blanket 4(d) rule establishes the default of automatically extending protections provided to endangered species to those listed as threatened unless the Service adopts a species-specific 4(d) 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. Vincent v. Mayhew Center, LLC, 2021 U.S.Dist.LEXIS 31529 (N.D. Cal. February 19, 2021).

A U.S. District Court for the Northern District of California dismissed a lawsuit between parties over a property in Walnut Creek, California, that was environmentally contaminated and the contamination was spreading into neighboring properties. In 2007, Mayhew Center was held liable and ordered to clean up the neighbor’s property as well as its own pursuant to CERCLA. In 2017, Mayhew Center defaulted on its mortgage, failed to fulfill its obligations to cleanup both properties, and the property was foreclosed on. In the foreclosure sale, plaintiff Vincent, entered into an agreement with the Regional Water Quality Control Board (“Regional Board”) to assume remediation obligations under the purchase and sale agreement. Vincent then sued Mayhew Center, Beards, and Etch-Tek for liability to remediate the property under CERCLA. Beards and Etch-Tek moved to dismiss claims against them on res judicata grounds to which the U.S. District Court agreed. The Court held that Vincent could not hold Beards or Etch-Tek liable under CERCLA because liability arose out of the same nucleus of facts and that a judgment had already been rendered against Mayhew Center who was obligated to clean up the property. Vincent argued that cost recovery under CERCLA was substantially different from the prior case because Vincent sought recovery under a different section of the CERCLA statute. The Court held that while recovery was in fact sought under a different section of CERCLA, this would not allow for plaintiffs to use different procedural CERCLA vehicles to accomplish the same ends. As such, the Court dismissed the case against defendants Beards and Etch-Tek with prejudice.


  1. City of L.A. v. Dickson, 2021 U.S. App. LEXIS 20248 (9th Cir. July 8, 2021, No. 19-71581).

In its review of the Federal Aviation Administration’s (“FAA”) adoption of a categorical exclusion under NEPA for Los Angeles Airport’s (“LAX”) proposed amendments to airplane arrival routes, the Ninth Circuit  Court of Appeals held that the decision was arbitrary and capricious in violation of NEPA. It reasoned that the FAA failed to: (1) address the record evidence indicating that there was a dispute over the potential effects of the amended arrival routes in its environmental review, in contravention of its own procedures; and (2) complete the required consultation under the National Historic Preservation Act before it evaluated the project’s effects on historic structures.


  1. Louisiana v. Biden, 2021 U.S.Dist.LEXIS 112316 (W.D.La. June 15, 2021, No. 2:21-CV-00778) – United States District Court Blocked The Biden Administration’s Pause On Oil And Gas Leasing.

In response to a lawsuit by the State of Louisiana and twelve other states, the U.S. District Court for the Western District of Louisiana issued a preliminary injunction that stopped the Biden Administration’s pause on oil and gas leasing. The Biden Administration’s pause directed agencies not to issue new leases for oil and gas drilling in offshore waters and on public lands while officials conduct an environmental and financial review of leasing practices. The injunction applies nationwide and will be in place pending resolution of the lawsuit itself. To receive a preliminary injunction, the movant must show (1) the substantial likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of a preliminary injunction, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. The states’ lawsuit claims that the Biden Administration violated the Administrative Procedure Act (“APA”) because the administration (i) acted contrary to law in violation of APA § 706(2)(A) and (C) by effectively amending congressional statutes OCSLA and MLA; (ii) acted in an arbitrary and capricious manner in violation of APA § 706(2)(A) by omitting any “any rational explanation in cancelling the lease sales”; (iii) failed to provide notice and comment required by APA § 553(a); and (iv) unreasonably withheld and unreasonably delayed lease sales which constitute agency required activity in violation of APA § 706(1). The Biden Department of the Interior confirmed that it will comply with the order while continuing to work on an interim report that will include initial findings on the state of the federal conventional energy program.

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  1. California Prosecutor Files Criminal Charges Against Pacific Gas & Electric Over The 2019 Kincade Wildfire.

The Sonoma County District Attorney (“DA”) charged Pacific Gas & Electric (“PG&E”) with five felony and twenty-eight misdemeanor counts that allege the utility of endangering public health and injuring six firefighters. The California Department of Forestry and Fire Protection reported that the fifteen-day fire, which ultimately destroyed 374 buildings and forced 100,000 people to evacuate, was sparked when high winds broke a PG&E transmission line. The DA accuses the company of destroying inhabited structures and endangering public health by causing contamination of the air “with reckless disregard for the risk of great bodily injury” from toxic wildfire smoke. They allege that the utility failed to maintain facilities including transmission lines, among the numerous related misdemeanor charges. While PG&E accepts the finding that its transmission line caused the fire, the company asserts that no crimes were committed.

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  1. Supreme Court Sends Climate Change Lawsuit Against Five Major Oil Companies Back To District Court, Future Of Lawsuit Uncertain.

In June of 2021, the Supreme Court upheld a Ninth Circuit Court of Appeals decision that public nuisance claims brought by cities and local governments against major oil companies could be pursued in state court. This ruling moves forward the lawsuits by the cities of San Francisco and Oakland, among others, against ExxonMobil, BP, Chevron, ConocoPhillips, and Shell in California state court over their roles in climate change driven sea level rise. In 2017, San Francisco filed the first of many lawsuits that seek to force the companies to fund a sea level rise abatement program that will be used to build sea walls and other structures to protect about $49 billion in public and private property sitting within six feet of the current sea level. Since 2017, 26 state and local governments, including the states of Connecticut, Delaware, Massachusetts, Minnesota, and Rhode Island; the District of Columbia, and 20 city and county governments in California, Colorado, Hawaii, Maryland, New Jersey, New York, South Carolina, and Washington have filed similar lawsuits. The cities, states, and local governments brought public nuisance claims against the companies alleging the firms have known for decades that their products were accelerating global warming and instead of acting to reduce harm, the companies attempted to undermine climate science and mislead the public by claiming fossil fuel production is environmentally responsible. As the suits allege only public nuisance claims, San Francisco and Oakland stated explicitly that the cities are not seeking to impose any liability for the companies’ greenhouse gas emissions or stop the companies from producing fossil fuels. In response to the lawsuits, the oil companies transferred the suits to federal court. In 2018, U.S. District Court Judge William Alsup denied the cities’ request to move the cases back to state court. Judge Alsup then dismissed the suits, saying that emissions control is up to policymakers, not judges. The Supreme Court’s decision not to review the Ninth Circuit’s ruling sends the issue back to Judge Alsup to reconsider the case and decide whether there are any other grounds to hear it in federal court, meaning he could dismiss the suits for a second time.

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  1. California Senators Introduce Bill That Would Expand Protected Wilderness In The State By More Than One Million Acres.

A package of bills in the United States Senate would expand protections for more than one million acres of public land in California. The bill, introduced by California Senator Alex Padilla and co-sponsored by fellow California Senator Diane Feinstein, passed through the House of Representatives in February. This designation prohibits development, vehicles, and commercial activity. The package of legislation would also designate as wilderness about 262,000 acres of public lands in northwest California and 288,000 acres of land in the Los Padres National Forest and Carrizo Plain National Monument, as well as establish a 400-mile-long Condor National Scenic Trail stretching from Los Angeles to Monterey County. The designation of land as “wilderness” is the most restrictive classification of federal land and would limit commercial activities such as logging, mining, and ranching. The protections in this bill are almost entirely limited to federal lands and not private holdings.

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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.


  1. Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812.

In a case involving a beachfront property owner’s violation of provisions of the California Coastal Act, the Second District Court of Appeal upheld the imposition of a nearly $4.2 million fine. A previous owner of the beachfront Malibu property violated a five-foot-wide public coastal access easement by building private accessory structures that included a gate blocking public access. After asking the owners to remove the structure for years, the Commission served the owner with notice of intent to issue a cease-and-desist order and warned that the owner could face penalties. The owner refused and the Commission imposed a substantial fine. In response, the owner filed a writ of mandate asserting that the fine was unconstitutional. The court did set aside the fine, finding that though the fine was constitutional the owner’s due process rights were violated because the Commission did not give adequate notice of the amount of the penalty. The court of appeal upheld the finding of constitutionality and reversed the trial court’s finding of due process violations. The court of appeal ruled that the Commission had given the owner notice of the maximum fine permissible under section 30821, and it held that this was sufficient to satisfy the owner’s due process rights. Additionally, the court found that the informal hearing procedures used by the Commission gave the owners adequate protection, and the commissioners were not shown to be biased adjudicators. Section 30821 allows for a penalty of $11,250 for each day the violation persists for up to five years, meaning potential fines could exceed $20 million.

  1. California Attorney General Rob Bonta Announced Expansion of Environmental Justice Bureau.

On April 28, 2021, California Attorney General Rob Bonta announced an expansion of the California AG’s Bureau of Environmental Justice (“Bureau”). The Bureau was established in 2018 and will expand to include eleven attorneys. Bonta explained that the expansion will allow the office to increase oversight and take on more cases. The Bureau focuses on oversight and enforcement work, specifically:

  • Ensuring compliance with the California Environmental Quality Act (“CEQA”) and land use planning laws;
  • Penalizing and preventing illegal discharge to air and water from facilities located in communities already burdened disproportionately with pollution;
  • Eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
  • Remediating contaminated drinking water; and
  • Challenging the Federal Government’s actions that repeal or reduce public health and environmental protections.

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.