California Environmental Law and Policy Update - January 31, 2014

by Allen Matkins
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Environmental and Policy Focus

Ninth Circuit debates application of dormant Commerce Clause

CourtHouse News - Jan 22

A Ninth Circuit appellate panel’s rejection of a challenge to the “life-cycle analysis” approach to measuring carbon intensity of fuels used in California has set off a heated debate within the court. The “life-cycle” approach, mandated by California’s Low Carbon Fuel Standard (LCFS), measures carbon emissions from a vehicle and the total emissions created from producing, refining and moving the fuel to California. Fuel manufacturers and ethanol producers challenged the approach in federal court, arguing that it discriminates against out-of-state producers in violation of the Commerce Clause. The district court upheld the challenge, but on appeal last September, a divided three-judge panel of the 9th Circuit reversed, emphasizing California's leadership in environmental regulation and its reputation as a national "laboratory" for new policy. The producers then sought an en banc rehearing by a larger Ninth Circuit panel. Last Wednesday, their petition was denied. The denial drew an unusual and lengthy dissent from some of the court’s judges, who criticized the majority for disregarding longstanding doctrine on the dormant commerce clause and placing "the law of this circuit squarely at odds with Supreme Court precedent."

Tighter regulations recommended for trains carrying crude oil

San Francisco CBS Local - Jan 24

Noting that the amount of crude oil being shipped by rail across the United States has spiked 443 percent since 2005, National Transportation Safety Board officials recommended changes in rail transport policies and practices in order to avoid “major loss of life, property damage and environmental consequences.” In November the president of the Association of American Railroads suggested the industry build stronger tankers to cut down on accidents. Last week, the NTSB agreed and suggested that trains also develop new routes to avoid populated areas, and do a better job of properly classifying hazardous cargo, in order to reduce the risk of catastrophic derailment.

Chevron, Southwest Gas fined $1 million for deficient GHG emissions reporting

Environmental Leader - Jan 28

Chevron and Southwest Gas have been fined about $1 million for violating California’s mandatory greenhouse gas emissions reporting rule in 2011. This is the second time the California Air Resources Board (ARB) has issued fines for late or inaccurate reporting under the regulation, which mandates that utilities and industrial facilities emitting more than 10,000 metric tons of carbon dioxide or its equivalents annually report their GHG emissions.

Court grants Drakes Bay Oyster Co. a short reprieve

SF Gate - Bay Area News - Jan 27

An oyster farm at Point Reyes in Marin County can stay open temporarily while its owner attempts to persuade the U.S. Supreme Court to review a ruling rejecting its effort to obtain an extended lease in waters that Congress designated as a marine wilderness. The Ninth U.S. Circuit Court of Appeals upheld the federal government's refusal to renew the lease of Drakes Bay Oyster Co., but on Monday granted the company a 90-day stay to allow time for the owner to petition for Supreme Court review.

Suit alleges U.S. ignored 'best available science' in sonar ruling

LA Times - Environment News - Jan 27

In a lawsuit filed last Monday, the National Marine Fisheries Service was alleged to have violated federal law when it authorized the Navy's use of sonar in training exercises off Hawaii and California through 2018. The Service's analysis had determined that the underwater noise generated during war games would result in 155 marine mammal deaths, more than 2,000 permanent injuries and about 9.6 million instances of temporary hearing loss and disruptions of vital behaviors.

 

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