In 2011, 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. In 2012, several federal courts have similarly rejected lawsuits based on common law claims that sought to address the effects of 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 Sharon Buckenmeyer

The State’s Climate Action Team just released an Extreme Heat Adaptation Interim Guidance Document to provide direction to State agencies for the incorporation of extreme heat projections into planning and decision making. The guidance document focuses on the health aspects of increasing temperatures in California and provides recommendations to State agencies for

Will Commerce Clause challenges thwart California’s efforts to reduce greenhouse gas emissions? In regards to the state’s Low Carbon Fuel Standard, one U.S. District Court has already said “Yes.”
Continue Reading The Commerce Clause As A Sword To Challenge California’s Efforts To Curb Greenhouse Gas Emissions

While CEQA predominates many local government discussions of climate change, the state has taken a longer view as well, seeking input on strategies for local adaption to climate change. The draft handbook can be found at http://resources.ca.gov/climate_adaptation/docs/APG_-_PUBLIC_DRAFT_4.9.12_small.pdf. A state sponsored webinar will take place on May 15, and comments can be submitted electronically at

On December 13, the Office of Administrative Law 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

CEQA requires an analysis of the project on the environment, not the environment on the project. An EIR which examines all strategies for protection of cultural resources satisfies CEQA’s disclosure requirements. Finally, after a successful writ of mandate, opponents are limited to the legal issues in the court’s order, and do not have a second bite at the litigation apple.
Continue Reading 2nd Appellate District Again Holds That For The Purposes Of CEQA, It Is The Impact Of The Project On The Environment, Not The Other Way Around

On September 16, 2011the Attorney General submitted a letter commenting on the draft EIR for SANDAG’s Regional Transportation Plan and Sustainable Communities Strategy stating the draft inadequately addressed local air pollution and is inconsistent with the State’s climate change goals.
Continue Reading Attorney General Comments on Draft EIR for First SB 375 Sustainable Communities Strategy

By now, most CEQA practitioners have faced the problem of what to do when a project opponent submits the Attorney General’s 18-page list of potential greenhouse gas mitigation measures, suggesting the measures might be appropriate for the project at issue. On June 30, 2011, the Court of Appeal for the Second Appellate District held that the lead agency is not necessarily required to explain why each of the proposed measures is inappropriate for the specific project.
Continue Reading Lead Agencies Are Not Always Required to Explain Why Every Proposed Mitigation Measure is Infeasible

The Court of Appeal for the Fourth Appellate District found substantial evidence of a fair argument that a Target development project would have a significant environmental impact by disturbing contaminated soil, but rejected challenges based on air pollution and greenhouse gas impacts.
Continue Reading Implicit Approval of Using AB 32 Reduction Goals to Establish GHG Thresholds

By Katherine J. Hart

In the recent opinion of CREED v. City of San Diego (2011 Cal. App. LEXIS 720, Court of Appeal, Fourth Appellate District) petitioners are cautioned not to rely on massive, unorganized, last minute submittals of documents and data without clarifying and outlining their specific concerns in order to provide an agency with an opportunity to respond. The court of appeal also held that water supply assessments (WSAs) can be approved by a CEQA lead agency that also serves as the water supplier for the project area by including the WSA analysis in the environmental document and certifying that environmental document (e.g., no separate WSA approval is necessary).
Continue Reading Petitioners Be Forewarned: Massive Document “Dumps” May Not Suffice To Exhaust Administrative Remedies; Water Supply Assessments May Be Approved Via Certification Of An EIR.