Environmental Construction Civil Procedure

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EPA Reinforces Standards to Use "Representative Data" After Sierra Club

On January 22, 2013, in Sierra Club v. EPA, the US Court of Appeals for the District of Columbia issued an opinion that addressed some Prevention of Significant Deterioration (PSD) permitting program issues. Following this...more

Collateral Estoppel Bars Copy-Cat Environmental Plaintiff in New Case After Judgment

Roberson v. City of Rialto (4th Dist., Div. 2, 5/21/2014, E058187) - The Fourth District Court of Appeal affirmed a judgment denying a petition for writ of mandate to invalidate project approvals for the construction...more

Fifth Circuit Limits the Reach of ESA "Take Liability" for State Regulatory Agencies Based on "Proximate Causation" Principles

The Fifth Circuit's decision provides important legal and factual guidance for whether an action will cause a "take" under the ESA. While the decision only affects states covered by the Fifth Circuit (Texas, Louisiana and...more

Bright Line Rule: Collateral Estoppel Precludes Attacks on Quasi-Judicial Permit Decisions (But Stay Tuned: Rehearing Granted on...

Simply stated: “[a] collateral attack is not a substitute for an appeal” reasoned the Second Appellate District Court in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 03/18/2014, B243015) ___Cal.App.2nd___,...more

Second District Addresses Interesting CEQA and CESA Species Mitigation Issues in Lengthy Partially Published Opinion Upholding...

In a lengthy, mostly published opinion filed on March 20, 2014, the Second District Court of Appeal reversed the trial court’s judgment granting a writ of mandate, and upheld – as against state law challenges brought by a...more

Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations...

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric...more

Tower Lane Properties v. City of Los Angeles: JMBM Prevails in Published Court of Appeal Opinion Holding that a City's Erroneous...

JMBM has prevailed in the Court of Appeal on behalf of its client in a well-publicized and hotly-contested development project in the City of Los Angeles. The court's published opinion will come as welcome relief to property...more

CEQA Requires CalTrans’ EIR to Separately Analyze Significance of Highway Project’s Impacts on Protected Old Growth Redwoods’ Root...

In a partially-published opinion filed January 30, 2014, the First District Court of Appeal, Division 3, reversed the trial court’s judgment denying a writ petition, and held that Caltrans must correct certain deficiencies in...more

All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing...

In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel...more

CEQA "Modernization"—Urgent End-of-Session Alert

We recently reported in our August 20, 2013, newsalert that Senate President Pro Tem Darrell Steinberg’s August 6 amendments to SB 731, The CEQA Modernization Act of 2013, continued to stray further from meaningful CEQA...more

Air Quality Thresholds of Significance Not a “Project” Under CEQA

A local air quality management district proposed new thresholds of significance for air pollutants to meet tighter state and federal air quality standards and to clarify analysis of air pollutant impacts under the California...more

Third Circuit Dismisses NSR Action Against Coal Plant, Affirms Limits of Clean Air Act Liability

On August 21, 2013, the U.S. Court of Appeals for the 3rd Circuit roundly dismissed an enforcement action brought under the federal Clean Air Act (CAA or the Act) by the U.S. Environmental Protection Agency (EPA) and several...more

Depublication Of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders

While Real Party in Interest Wal-Mart Stores did not elect to seek California Supreme Court’s review of the Fifth District’s controversial decision in Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, the...more

Court of Appeal Rules Setting Thresholds is Not a "Project" Under CEQA - Air District’s CEQA Thresholds for Greenhouse Gases...

Yesterday, the Court of Appeal for the First District issued its ruling in California Building Industry Association v. Bay Area Air Quality Management District. In a win for public agencies, the court held that establishing...more

State Supreme Court Makes Key CEQA Ruling Involving Baseline Analyses - Future Conditions Can Be Used as the Sole Baseline for...

In a victory for public agencies, the California Supreme Court today issued its much-anticipated ruling in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (August 5, 2013). The Court held that, in...more

Seventh Circuit Presents Statute of Limitations Roadblock for Future PSD Enforcement Matters

On July 8, 2013, in United States v. Midwest Generation, et. al, the U.S. Court of Appeals for the Seventh Circuit ruled that the failure to obtain a prevention of significant deterioration (PSD) construction permit under the...more

Coalition for Clean Air: Filing an NOE Before Project Approval Does Not Trigger CEQA's 35-Day Statute of Limitations

On September 14, 2012, the Fifth District Court of Appeal decided in Coalition for Clean Air v. City of Visalia that a Notice of Exemption (NOE) filed before the final approval of a proposed project is invalid and does not...more

First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services

The First Appellate District recently ordered partially published its opinion in City of Hayward v. Board of Trustees of the California State University (2012) __ Cal.App.4th __, 2012 WL 2832858 (cert. for pub. 6/28/12),...more

Use of Projected Future Conditions Appropriate Baseline for Analyzing Impacts of Long-Term Infrastructure Projects

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (“Neighbors for Smart Rail”), the California Court of Appeal for the Second District considered plaintiff and appellant Neighbors for Smart...more

Will Green Codes LEED to Litigation?

As seen in DRI For The Defense. A deep recession and lethargic recovery have taken their toll on the U.S. construction industry. But despite the overall sluggishness in the construction sector, the U.S. green-building...more

Green Building Newsletter - January 2012

In This Edition: *Law & Policy Updates: ..Henry Gifford’s Lawsuit Against U.S. Green Building Council Dismissed; LEED 101: A Look at the Proposed LEED Update - LEED 2012; and ML Strategies Energy and Environment...more

Ninth Circuit Hears Oral Argument in Climate Change Case

The Ninth Circuit recently heard oral argument in a potentially significant case raising climate change issues. See Kivalina v. Exxon Mobil Corp., No. 09-17490 (9th Cir.)(oral argument 11/28/11). We have posted on this...more

Don’t Go Near the Water . . . Stymied by Congress, EPA and the Corps Issue New CWA Jurisdictional “Guidance”

On April 27, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) (“the Agencies”) issued draft guidance (“Proposed Guidance”) that signals a dramatic expansion of asserted...more

Protecting Investigative Materials

A great summary of Attorney Client and Work Product Privilege in the context of an internal investigation. Something you should keep in mind when bad things happen....more

Sierra Club Challenges RUS Lien Accommodation Regulation

The Sierra Club has broadened its campaign against approvals granted by the Rural Utilities Service (RUS) related to new coal plants involving electric cooperatives. Having previously challenged specific RUS approvals, the...more

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