By Diane G. Kindermann, William W. Abbott and Glen Hansen

Welcome to Abbott & Kindermann’s 2015 Third Quarter Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) Mining / Oil & Gas, and (I) Environmental Enforcement.

Click here to read the complete update.

If you have any questions about these court decisions, contact Diane Kindermann or Glen Hansen. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.

 

By Diane Kindermann, William W. Abbott and Glen Hansen

Welcome to Abbott & Kindermann’s 2015 Mid-Year Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) Mining / Oil & Gas, and (I) Environmental Enforcement.

Click Here to read the complete update.

If you have any questions about these court decisions, contact Diane Kindermann, William Abbott or Glen Hansen. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.

Continue Reading 2015 MID-YEAR ENVIRONMENTAL LAW UPDATE

By Glen Hansen

In American Electric Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011) (“AEP”), the United States Supreme Court held that the Clean Air Act (“CAA”) and any Environmental Protection Agency action authorized by the CAA displaces any federal common law of interstate nuisance seeking abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Following AEP, several federal courts in 2012 rejected lawsuits based on common law claims that sought to remedy climate change, either by way of damages or injunctive relief.

Continue Reading Federal Courts Continue To Reject Climate Change Lawsuits That Rely On Federal Common Law

By Glen Hansen

The Clean Air Act (“CAA”) charges the United States Environmental Protection Agency (“EPA”) with setting National Ambient Air Quality Standards (“NAAQS”), which prescribe the maximum permissible levels of common pollutants in the ambient air. EPA designates “nonattainment” areas — that is, areas within each State where the level of the pollutant exceeds the NAAQS. Once EPA sets a NAAQS and designates nonattainment areas within the States, the lead role shifts to the States. The States implement the NAAQS within their borders through State Implementation Plans (“SIPs”). In their SIPs, States choose which individual sources within the State must reduce emissions, and by how much. States must submit SIPs to EPA within three years of each new or revised NAAQS. One of the required elements of a SIP submission is the “good neighbor” provision, which recognizes that emissions from “upwind” regions may pollute “downwind” regions. The good neighbor provision requires upwind States to bear responsibility for their fair share of the nonattainment in downwind States. EPA plays the critical role in gathering information about air quality in the downwind States, calculating each upwind State’s good neighbor obligation, and transmitting that information to the upwind State. With that information, the upwind State can then determine how to meet its good neighbor obligation in a new SIP or SIP revision. If a State does not timely submit an adequate SIP (or an adequate SIP revision) to take account of the good neighbor obligation as defined by EPA, responsibility shifts back to the Federal Government. Within two years of disapproving a State’s SIP submission or SIP revision, or determining that a State has failed to submit a SIP, EPA must promulgate a Federal Implementation Plan (“FIP”) to implement the NAAQS within that State.

Continue Reading In Striking Down EPA’s “Transport Rule” Under The Clean Air Act, Federal Court Is Struck With EPA’s Refusal To Acknowledge Any Textual Limits On Its Authority

By Glen C. Hansen

As California seeks to reduce greenhouse gas (“GHG”) emissions in the state’s industries in order to implement provisions of California’s Global Warming Solutions Act of 2006 (i.e., AB 32), entities and trade groups both inside and outside the state have looked to the “dormant” Commerce Clause in the U.S. Constitution as a legal means to challenge those efforts. That constitutional argument could be potent. As Professor Deborah A. Sivas of Stanford Law School explains: “It could become impossible for states to do anything for regulating greenhouse gas emissions if there’s an invigorated dormant Commerce Clause, because states can’t really get their arms around emissions unless they look at what other states are doing.” To date, dormant Commerce Clause challenges to California’s GHG-reduction efforts have met with varied success in the federal courts.

Continue Reading The Commerce Clause As A Sword To Challenge California’s Efforts To Curb Greenhouse Gas Emissions

By Leslie Z. Walker

On December 13, the Office of Administrative Law (“OAL”) approved and transmitted to the Secretary of State the regulations for the California Cap on Greenhouse Gas Emissions and Market-Based Compliance Mechanisms (Cal. Code Regs., tit 17, §§ 95800 et seq.), (“Cap and Trade Regulations”) including Compliance Offset Protocols (“Offset Protocol”). One day later, OAL approved and filed with the Secretary of State revisions to Mandatory Reporting Requirements initially enacted in 2007 (“MRR”). The Cap and Trade Regulations, Compliance Offset Protocol, and MMR are central to implementing California’s Global Warming Solutions Act (AB 32, Health & Saf. Code, § 38500 et seq.) and will take effect on January 1, 2012.

Continue Reading Cap and Trade Regulations Approved and Transmitted; Preliminary List of Covered Entities Now Available

By Leslie Z. Walker, William W. Abbott, Cori M. Badgley and Katherine J. Hart

In the first six months of 2011, the appellate courts have issued eight opinions and the results are a mixed bag. On the one hand, the Sixth Appellate District gave cities and project proponents a strategy to deal with Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150); the First Appellate District gave more clarity on deferred mitigation in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884; and the Fourth District held that petitioners failed to exhaust their administrative remedies when they did not fairly present evidence to the City (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032). On the other hand however, the Fifth Appellate District held that project components not properly documented for CEQA purposes cannot be severed from the balance of the approval and a project found to partially violate CEQA, must be set aside in its entirety (Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675.)

Continue Reading 2011 CEQA MID-YEAR UPDATE

By Leslie Z. Walker

San Francisco Superior Court enjoined the implementation of the Air Resources Board’s Climate Change Scoping Plan, finding the alternatives analysis and public review process violated both CEQA and the Air Resources Board’s certified regulatory program.

The Scoping Plan is the strategy for achieving the Greenhouse Gas (“GHG”) reductions mandated by the Global Warming Solutions Act of 2006 (Health & Saf. Code, 38500 et seq., “AB 32”). AB 32 directed the Air Resources Board (“ARB”) to prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions by 2020. (Health & Saf. Code, § 38561.) ARB adopted the Climate Change Scoping Plan including the functional equivalent document (“FED”) on December 12, 2008. Petitioners challenged both the Scoping Plan and the FED, claiming the former violated AB 32 and the latter violated CEQA and ARB’s certified regulatory program (Cal. Code Regs., tit. 17, 60005-60007). The court found the plan violated CEQA and the certified regulatory program, but not AB 32.

Continue Reading AB 32 Scoping Plan Enjoined

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. – 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

California Air Resources Board is Expected to Adopt the California Cap and Trade Program at today’s hearing.

According to the Air Resources Board, the Program:

  • Limits emissions from sources responsible for 85 percent of California’s Green House Gas emissions;
  • Establishes the price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy; and
  • Affords covered entities flexibility to seek out and implement the lowest-cost options to reduce emissions.

For more details see the Initial Statement of Reason at http://www.arb.ca.gov/regact/2010/capandtrade10/capisor.pdf