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EPA Proposes to Eliminate Dual Standard for “All Appropriate Inquires” under CERCLA

EPA Proposes Rule to eliminate the dual standard for compliance with the “All Appropriate Inquiries” requirement for the Innocent Purchaser, Bona Fide Prospective Purchaser and Contiguous Property Owner Defenses to CERCLA....more

EPA Proposes Change to Environmental Due Diligence Rule For Property Transactions

For the second time in a year, the U.S. Environmental Protection Agency (EPA) proposed to amend the “all appropriate inquiry” rule under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). ...more

EPA Proposes to Amend All Appropriate Inquiries Rule to Remove References to 2005 ASTM Standard for Phase 1 Assessments

Yesterday, the EPA published for comment notice of its intent to amend the “All Appropriate Inquiries Rule,” 40 CFR part 312, to remove references to ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase...more

EPA Proposes Elimination of ASTM Phase I ESA Standard E1527-05 from CERCLA All Appropriate Inquiries Rule

The EPA has announced a proposal to amend the “All Appropriate Inquiries Rule” for conducting environmental site investigations of potentially contaminated property. The proposed amendment will eliminate ASTM E1527-05...more

Bowman v. California Coastal Commission: New California Court of Appeal Decision Holds that a Collateral Attack is no Substitute...

Sometimes in land use law, the most impactful court holdings come from the simplest of cases. That may be the situation with the new California Court of Appeal decision in Bowman v. California Coastal Commission, issued by...more

Warrantless Inspections are Not Warranted under the Freshwater Wetlands Protection Act

The New Jersey Supreme Court recently held that the New Jersey Department of Environmental Protection (NJDEP) may not conduct a warrantless administrative inspection of a residential property subject to a Freshwater Wetlands...more

The ASTM Standard Practice for Phase II Environmental Site Assessments

Originally published in the Environment Reporter, 43 ER 3080, 11/30/2012. Phase II Site Assessments - This article reviews the background of the revised Phase II Environmental Site Assessment Standard issued in...more

U.S. EPA Issues New Guidance on Bona Fide Prospective Purchaser Defense for Tenants

The United States Environmental Protection Agency ("EPA") released revised guidance on the applicability of the bona fide prospective purchaser ("BFPP") defense to tenants under the Comprehensive Environmental Response,...more

Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties;...

The Respondent City of Berkeley and Real Parties (Kapors) filed their joint Reply Brief on the Merits in the California Supreme Court in a much-watched categorical exemption case, Berkeley Hillside Preservation, et al. v....more

City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies

Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would...more

How Much Uncertainty Does CEQA Allow? Court Upholds EIR's Practical Approach for Evaluating Uncertain Cumulative Impacts, but...

In Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve. The court upheld the...more

CERCLA and Original Sin -- Who Has to Pay For Other People's Contamination

In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of...more

Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?

Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he...more

PACE Fights Regulatory and Legal Headwinds

Once lauded by the Harvard Business Review as a “Breakthrough Idea of 2010,” the promise of an innovative financing method for residential renewable energy and energy conservation retrofits under Property Assessed Clean...more

Does CEQA Provide For Classes of Exempt Projects? Parties File Opening Merits Brief in Supreme Court in Berkeley Hillside...

Following up on previous posts (see February and May archives), the City of Berkeley Respondents and the Kapors (Real Parties in Interest) filed their joint 80-page opening brief on the merits on July 27 in Berkeley Hillside...more

Property Tax Savings for Green Condo Projects

How do you motivate condo developers to make green building standards a priority? Offer creative green building incentives that will make their projects more marketable. This is what Governor Cuomo had in mind for the State...more

Legal Issues Associated with Building “Green”

State and local governments have enacted a variety of incentives to encourage energy efficient “green” design and construction practices. Projects owned or leased by government authorities are often subject to mandatory green...more

Ordinance Allowing Sequential Lot Line Adjustments Is Not Preempted By The Map Act

A court of appeal recently held a county ordinance that allows sequential lot line adjustments is consistent with exclusion of lot line adjustments from the requirements of the Subdivision Map Act (“Map Act”). The court also...more

MoFo New York Tax Insights - Volume 3, Issue 7 - July 2012

In This Issue: Gain on Sale of New York Property Allocated Entirely to New York; Failure to Establish Value of Assets in a Bulk Sale Leads to Liability for Entire Sales Tax Deficiency; Entitlement to QEZE Credits...more

FHFA Announces Multiple New Policy Initiatives

On June 15, the FHFA published a Notice of Proposed Rulemaking regarding state and local Property Assessed Clean Energy (PACE) programs, as required by a preliminary injunction issued by the Northern District of California in...more

FHFA Proposes Rule for PACE Programs

On June 15, the FHFA, as required by a preliminary injunction from the Northern District Court of California, issued a notice of proposed rulemaking on state and local energy retrofit financing arrangements known as Property...more

Projects Affecting Wetlands: Coming Into Force Of Measures On Compensation

June 2012 — On May 22, 2012, Bill 71 – An Act respecting compensation measures for the carrying out of projects affecting wetlands or bodies of water (the “Act”) was passed. The Act came into force on May 23, 2012, almost a...more

UPDATE: Exhaustion-Of-Administrative-Remedies Requirement Applies If There Is A Public Hearing Before An Agency Determines A...

The California Supreme Court recently held that the exhaustion-of-administrative-remedies requirement found in Public Resources Code § 21177, subdivision (a), applies where a public agency determines that a proposed project...more

Practical Considerations in Real Estate Transactions in Light of SRRA

Originally published in the June 4, 2012 edition of New Jersey Law Journal. In an effort to expedite the remediation of more than 20,000 contaminated sites, New Jersey passed the Site Remediation and Reform Act (SRRA) on...more

How Recent CEQA Cases Show The Need For Legislative CEQA Reform

Some CEQA practitioners think the sheer volume of published CEQA opinions demonstrates the need for reform – res ipsa loquitur, so to speak. Recently a litigation mentor of mine, a brilliant man who was at the forefront of...more

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