By Leslie Z. Walker

In White Tanks v. Strock (9th Cir. 2009) 563 F.3d 1033, the Ninth Circuit held the Army Corps of Engineers (“USACE”) had improperly confined the geographic scope of its environmental analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) in issuing a permit under Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”).  The Court held that because the feasibility of the whole project depends upon the Corps granting a Section 404 permit, the entire project is within the purview of the Corps and thus subject to environmental review under NEPA.

Continue Reading Geographic Scope of Environmental Study Depends on Feasibility of Project without Federal Action

By Cori Badgley

Generally, a lawsuit challenging an agency’s decision or environmental review must be brought within 30, 60 or 90 days, depending on the applicable statute of limitations.  Often, an agency’s decision involves powers granted under different statutes, which can lead to conflicting statutes of limitations.  In Strother v. California Coastal Commission (2009) 173 Cal.App.4th 873, the Court of Appeal for the Fourth Appellate District addressed such a conflict in a challenge to the granting of a coastal development permit.  The conflict arose between the statute of limitations under the California Coastal Act (Pub. Resources Code § 30801) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code § 21080.5).  The court held that as long as the challenges related to CEQA, CEQA’s statute of limitations applied.

Continue Reading CEQA Statute of Limitations Still Applies in Challenge to Coastal Development Permit

The House of Representatives voted on the American Clean Energy and Security Act, known as the Waxman-Markey or Cap and Trade bill. The House passed the bill by a vote of 219 to 212. The bill now moves to the Senate.

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 Leslie Z. Walker

The House of Representatives is expected to vote on the American Clean Energy and Security Act (H.R. 2454), known as the Waxman-Markey or Cap and Trade bill, today.  Under the bill, the Administrator of the Environmental Protection Agency would be required to promulgate regulations to cap and reduce Green House Gas emissions (“GHG”) annually, so that GHG emissions from capped sources are reduced by 3 percent (from 2005 levels) by 2012, 17 percent by 2020, and 42 percent by 2030.  (H.R. 2454, § 703.) Sources able to meet and surpass their reduction requirements will be allowed to sell their excess reduction credits while sources unable to meet their targets may purchase offsets in order to obtain compliance. Abbott & Kindermann, LLP will keep you posted on the status of the bill.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

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 Cori Badgley

The Attorney General’s Office declared in a press release on June 24, 2009 that it intervened in a suit against the City of Pleasanton to remove the City’s “draconian and illegal” housing cap.  The housing cap, which was instituted in 1996 through Measure GG, limits housing to 29,000 units throughout the City.  The City can only accommodate another 2,000 units, if the housing cap remains in place.  According to the Attorney General, the job growth over the past 10 years has nearly doubled from 31,683 to more than 58,000, while the available housing has only increased by 7,000 units.  The draft General Plan Update predicts the creation of 45,000 more jobs over the next 15 years.  In addition to not meeting the City’s fair share regional housing needs, the Attorney General asserts that the housing cap will lead to increased traffic congestion, urban sprawl, greenhouse gas emissions and an increased dependence on foreign oil.  As the case progresses, Abbott & Kindermann, LLP will provide further updates.

Cori M. Badgley is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

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 Glen Hansen

In Silver Creek, LLC v. Blackrock Realty Advisors, Inc. (May 20, 2009) 173 Cal.App.4th 1533, the California Court of Appeal for the Fourth Appellate District held that the trial court abused its discretion when it decided there was no prevailing party on a contract for purposes of awarding attorney’s fees under Civil Code section 1717, subdivision (b), because the record clearly revealed that one party obtained greater relief on the contract in this mixed result case.

Continue Reading How Much Equitable Discretion Does a Trial Court Have in Deciding to Award Attorneys’ Fees When Litigation Results are Mixed?

The budget conference committee has proposed suspending Williamson Act subsidies for one year.  For more information, see Budget Committee Highlights and letter from the California Association of Counties and Regional Council of Rural Counties. Please check back for updates on this proposal.

By Glen Hansen

In Hauselt v. County of Butte (March 23, 2009) 172 Cal.App.4th 550, the California Court of Appeal for the Third District reaffirmed the rule established in Locklin v. City of Lafayette (1994) 7 Cal.4th 327, that the rule of reasonableness, and not the rule of strict liability, applies to an inverse condemnation action involving a flood control project. Hauselt applied the reasonableness rule despite the plaintiff’s argument that the government agency activities converted the watercourse into a public work.

Continue Reading The Rule of Reasonableness Applies to Public Agency Liability for Flood Control Projects, Even if the Watercourse has Been Converted into a Public Work

By Leslie Walker

In California Oak Foundation v. County of Tehama et al. 2009 Cal. App. LEXIS 923, the California Oak Foundation (“COF”) challenged Tehama County Board of Supervisors’ (the “County”) approval of the Sun City Tehama Specific Plan and EIR.  The Sun City Tehama Specific Plan is a 3,320 acre residential and commercial development adjacent to Interstate Highway 5 between Red Bluff and Redding. In an unpublished portion of the opinion, the Court of Appeal for the Third Appellate District addressed COF’s claims that the EIR inadequately mitigated for the project’s impacts to Blue Oak Woodlands and traffic. In the published portion of the opinion, the Court affirmed the trial court’s denial of COF’s motion to include privileged documents in the administrative record.

Continue Reading Common Interest Doctrine Applies to County’s Disclosure to Real Parties in Interest