Welcome to Abbott & Kindermann, Inc.’s November Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.
- PREVIOUS MONTH’S UPDATE
To read the September 2021 Environmental Action News post, click here:
- SUPREME COURT
There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:
County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?
A. WATER RIGHTS AND SUPPLY
- State Water Resources Control Board Issues Curtailment Orders Following Drought Conditions In The State.
On April 21, 2021, California Governor Gavin Newsom issued a 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 directed the State Water Board (“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. The Board has now issued multiple emergency curtailment orders pursuant to the Governor’s emergency proclamation.
- Upper Russian River
- In response to the water level in Lake Mendocino dropping below minimum storage levels, the 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.
- Sacramento-San Joaquin Delta Watershed
- On August 3, 2021, the 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 were sent to 4,500 water right holders to protect drinking water supplies, prevent salinity intrusion and minimize impacts to fisheries and the environment.
- Scott and Shasta Rivers
- On August 17, 2021, the Board approved an emergency curtailment regulation for the Scott and Shasta Rivers. The Scott and Shasta Rivers are important tributaries for the Klamath River and are important for the threatened coho, Chinook salmon, and steelhead trout. According to the Board, temporarily halting diversions will leave more water instream to meet minimum human health and safety and livestock needs and improve habitat and migratory conditions for imperiled coho salmon. On September 10, 2021, the Board issued curtailment orders to 2,380 water right holders in the Scott and Shasta River watersheds.
- Mill and Deer Creeks
- On September 22, 2021, the Board adopted an emergency curtailment regulation for Mill and Deer Creeks in Tehama County. On October 11, 2021, The SWRCB issued curtailment orders to all 22 right holders in the Mill and Deer creek watersheds. The creeks are priority watersheds for sustaining the Central Valley spring-run Chinook salmon and California Central Valley Steelhead, and support Central Valley fall-run and late fall-run Chinook salmon, as well as Sacramento River winter-run Chinook salmon.
For more information see:
B. AIR QUALITY AND CLIMATE CHANGE
- Supreme Court’s Upcoming Review Of The Environmental Protection Agency’s Greenhouse Gas Emissions Authority Could Change Scope Of EPA’s Ability To Regulate Carbon Emissions.
On October 29, 2021, the U.S. Supreme Court agreed to review a D.C. Circuit decision that vacated the Trump Administration’s Affordable Clean Energy (“ACE”) rule. The ACE rule addressed greenhouse gas (“GHG”) emissions from existing fossil-fired power plants. The D.C. Circuit concluded that the Trump administration erred in concluding that only certain on-site emission-reduction measures can be the “best system of emission reduction” for existing power plants under Section 111(d) of the Clean Air Act. The Trump Administration’s interpretation significantly limited the scope of measures the Administrative Branch of the Federal Government could take to address GHG emissions. The Supreme Court granted review only on statutory and constitutional questions relevant to the scope of measures lawfully considered under Section 111(d). Industry petitioners who argued that coal-fired power plants could not be regulated at all under Section 111(d), because the same sources are regulated under Section 112 of the Clean Air Act, but the court declined to consider this issue. The Supreme Court’s decision in this case could impact the ability of the United States to address climate change by dictating how the EPA can regulate GHG emissions in the power sector.
- 100% Of Companies In California Cap-And-Trade Program Meet 2020 Compliance Obligations.
On November 3, 2021, the California Air Resources Board announced that all businesses covered by California’s cap-and-trade program fully complied with greenhouse gas reduction obligations from 2018-2020. This is significant because the program helped the state meet its 2020 emission reduction targets four years early. Additionally, the rate of reduction will help California meet its ambitious 2030 goal of 40% total reduction in emissions. The cap-and-trade program requires companies to fully account for their GHG emissions by reducing emissions and/or purchasing allowances and turning them in to the state. Companies are also allowed to turn in a limited number of CARB-approved carbon offsets. Since 2013, the Legislature has appropriated $15.4 billion in California Climate Investments funds for projects statewide, $9 billion of which are either underway or completed. A detailed report containing information on each business’s compliance will be available on December 1, 2021.
C. RENEWABLE ENERGY
- California Energy Commission Adopted 2022 Building Energy Efficiency Standards For Newly Constructed And Renovated Buildings.
The California Energy Commission (“CEC”) adopted the 2022 Building Energy Efficiency Standards (“Energy Code”) for newly constructed and renovated buildings. The CEC adopts standards every three years to increase energy efficiency and lower the carbon footprint of buildings. This update will be submitted to the California Building Standards Commission which will consider the update in December 2021. If approved, the 2022 Energy Code will go into effect on January 1, 2023. The 2022 Energy Code focuses on:
- Encouraging electric heat pump technology for space and water heating, which consumes less energy and produces fewer emissions than gas-powered units.
- Establishing electric-ready requirements for single-family homes to position owners to use cleaner electric heating, cooking and electric vehicle (EV) charging options whenever they choose to adopt those technologies.
- Expanding solar photovoltaic (PV) system and battery storage standards to make clean energy available onsite and complement the state’s progress toward a 100 percent clean electricity grid.
- Strengthening ventilation standards to improve indoor air quality.
For more information see:
D. HAZARDOUS MATERIALS AND REMEDIATION
- S. Environmental Protection Agency Sets Toxicity Guidelines For “Forever Chemicals.”
In April of 2021, EPA Administrator Michael Regan established the EPA Council on PFAS and charged it to develop a whole-of-EPA strategy to protect public health and the environment from the impacts of polyfluoroalkyl substances (“PFAS”). The EPA released the PFAS Strategic Roadmap in October of 2021, which outlines specific actions and commitments to protect communities from PFAS contamination. PFAS are widely used, long lasting chemicals, components of which break down very slowly over time. Because of their widespread use and their persistence in the environment, many PFAS are found in the blood of people and animals all over the world and are present at low levels in a variety of food products and in the environment. Scientific studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals. The newly formed EPA Council on PFAS will consider and implement the actions listed in the PFAS Strategic Roadmap. Key actions include:
- Propose to designate certain PFAS as CERCLA hazardous substances.
- Enhance PFAS reporting under the Toxics Release Inventory by proposing a rulemaking to remove exemptions and exclusions for toxic chemical reporting.
- Establish a national primary drinking water regulation for perfluorooctanoic acid (“PFOA”) and perfluorooctanesulphonate (“PFOS”) that would set enforceable limits and require monitoring of public water supplies, while evaluating additional PFAS and groups of PFAS.
- Restrict PFAS discharges from industrial sources through a multi-faceted Effluent Limitations Guidelines program to proactively establish national technology-based regulatory limits, including progress on the nine industrial categories in the proposed PFAS Action Act of 2021.
- Build the technical foundation to address PFAS air emissions to identify sources, develop and finalize monitoring approaches for stack emissions and ambient air, develop information on cost-effective mitigation technologies, and increase understanding of the fate and transport of PFAS air emissions—to inform potential regulatory and non-regulatory mitigation options.
- Use enforcement tools to better identify and address PFAS releases at facilities, as appropriate, to require actions by responsible parties, to limit future releases, and to address existing contamination.
- Issue an annual public report on progress towards PFAS commitments included in this roadmap, as well as future actions the Agency may take.
For more information see:
E. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
- The Council On Environmental Quality Filed Notice Of Proposed Rulemaking To Change Procedural Provisions Of NEPA.
The Council on Environmental Quality (“CEQ”) proposed modifications to the procedural provisions of NEPA. The most recent changes to these provisions occurred in 2020 and the CEQ believes the proposed changes better align with NEPA’s statutory text and purpose. The proposed changes generally revert the procedural provisions to the 1978 NEPA Regulations that were in effect for over 40 years. The proposed rule would make the following three important changes to the 2020 NEPA rules:
- Eliminate language in the description of purpose and need for a proposed action when it is an agency’s statutory duty to review applications for authorization (40 CFR 1502.13) and make a conforming edit to the definition of “reasonable alternatives” (40 CFR 1508.1(z));
- Remove limitations on agency NEPA procedures for implementing CEQ’s NEPA Regulations (40 CFR 1507.3); and
- Return to the definitions of “effects” in the prior, longstanding 1978 NEPA Regulations (40 CFR 1508.1(g)).
The Council on Environmental Quality is accepting comments on this proposed rulemaking through November 22, 2021. Comments can be submitted through the Federal Register link below.
For more information see:
F. MINING, OIL, AND GAS
- S. Environmental Protection Agency Proposed Methane Emissions Control Program That Targets Existing Oil And Gas Sources.
On November 2, 2021, the U.S. Environmental Protection Agency (“EPA”) released its proposed new performance standards and emissions guidelines for new and existing oil and gas facilities. The EPA is issuing the proposal in response to President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The EPA estimates that the proposed rule would reduce 41 million tons of methane emissions from 2023 to 2035, the equivalent of 920 million metric tons of carbon dioxide. The proposal contains updated and broadened methane and smog-forming volatile organic compounds (“VOC”) emission reduction requirements for new, modified, and reconstructed oil and gas sources, including standards that limit emissions from additional types of sources for the first time under the Clean Air Act. The proposal also includes a requirement that states develop plans to limit methane emissions from hundreds of thousands of existing sources nationwide, along with presumptive standards for existing sources to assist in the planning process. Key features of the proposed rule include:
- a comprehensive monitoring program for new and existing well sites and compressor stations;
- a compliance option that allows owners and operators the flexibility to use advanced technology that can find major leaks more rapidly and at lower cost than ever before;
- a zero-emissions standard for new and existing pneumatic controllers (with a limited alternative standard for sites in Alaska), certain types of which account for approximately 30 percent of current methane emissions from the oil and natural gas sector;
- standards to eliminate venting of associated gas, and require capture and sale of gas where a sales line is available, at new and existing oil wells;
- proposed performance standards and presumptive standards for other new and existing sources, including storage tanks, pneumatic pumps, and compressors; and
- a requirement that states meaningfully engage with overburdened and underserved communities, among other stakeholders, in developing state plans. EPA is seeking comment on additional sources of methane to further strengthen emission controls and increase reductions from oil and gas operations.
EPA will take comment on the proposed rule for 60 days after it is published in the Federal Register. For instructions on how to comment, please see the first link below.
For more information see:
G. ENVIRONMENTAL ENFORCEMENT
- S. Environmental Protection Agency and California Environmental Protection Agency Launch Joint Program To Strengthen Environmental Enforcement In Vulnerable Communities.
The U.S. Environmental Protection Agency (“EPA”) and the California Environmental Protection Agency (“CalEPA”) launched a partnership aimed at strengthening environmental enforcement in communities that are overburdened by pollution. This five-year Memorandum of Understanding (“MOU”) to expand joint activities supporting the agencies’ shared goals of reducing pollution burdens, increasing environmental compliance, and improving public health outcomes in overburdened California communities. The MOU creates a framework for a partnership between the two agencies and expands collaborative activities related to enforcement, inspections, compliance assistance, communication, community engagement, and training to benefit public health and the environment in overburdened communities.
Under the MOU, the agencies intend to:
- Enhance existing collaborations by increasing joint inspections in overburdened communities; sharing or jointly developing metrics for determining pollution burdens and vulnerability; and collaborating on staff training.
- Promote coordination of enforcement responses, including joint judicial enforcement actions in overburdened communities.
- Expand engagement with overburdened communities to ensure that targeting of enforcement resources, and compliance-related activities are fully informed by the knowledge and lived experience of these communities.
- Improve communication and transparency by collaborating on an annual workplan and annual report to highlight achievements under the MOU.
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.