California Environmental Law and Policy Update - November 19, 2013


Environmental and Policy Focus

California Court Upholds State's Authority to Sell Carbon Allowances at Auction

Reuter's - Nov 14

The California Air Resources Board (ARB) can sell carbon emission allowances at quarterly auctions as part of the state's cap-and-trade program, a state court ruled in a decision released on Thursday, in a setback to businesses that argued that the sales constitute an illegal tax. The California Chamber of Commerce and tomato processor Morning Star sued to stop the sales last year, arguing that the allowances should be distributed freely to companies covered by the program. They argued that charging companies for the allowances at auction constituted the exaction of a tax that could only be imposed by a supermajority vote by the legislature. California's landmark emissions reduction law, AB 32, passed by a simple majority vote in 2006. California Superior Court Judge Timothy M. Frawley did not find the argument persuasive, holding: "Although AB 32 does not explicitly authorize the sale of allowances, it specifically delegates to ARB the discretion to adopt a cap-and-trade program and to ‘design' a system of distribution of emissions allowances."

Obama Administration Nominates Leader in Solar Energy Development to Head Bureau of Land Management

KCET News - Nov 8

The White House has announced its choice for the new head of the Bureau of Land Management, and the nomination may signal an intent to continue the aggressive development of renewable energy facilities on public lands that has characterized the Obama administration's energy policy over last five years. Nominee Neil Kornze, who has been BLM's Principal Deputy Director and Acting Director since March, was a main architect of the Administration's public lands solar policy during his tenure as Acting Deputy Director for Policy and Programs from October 2011 through March 2013. He played a major role in developing the Programmatic Environmental Impact Statement (PEIS) for solar development in six southwestern states, the cornerstone of the administration's renewable energy policy also known as the Western Solar Plan. The Plan established 445 square miles of Solar Energy Zones where solar energy development would be encouraged, along with almost 30,000 square miles of "variance" lands which would also be opened up for solar development. Most of the area designated as Solar Energy Zones is in California, with more than half the total -- 231 square miles -- in Riverside County.

Federal Judge Upholds Stocking of California Lakes With Non-Native Fish

CourtHouse News - Nov 8

The government can continue stocking California lakes with non-native fish, a federal judge ruled, dismissing a lawsuit brought by environmentalists. Wilderness Watch and Felice Pace, a fisherman from Del Norte County, had sued the California Department of Fish and Game (since renamed the Department of Fish and Wildlife) and two of its officials last year, claiming that they were polluting lakes by illegally jettisoning fish from airplanes and by packstock, or "oxygenated plastic bags," without permits. The Clean Water Act regulates the discharge of pollutants, which include chemicals, wastes, and biological materials, that could compromise the integrity of a waterbody, by requiring permits issued under the National Pollutant Discharge Elimination System. Wilderness Watch and Pace claimed that non-native fish qualify as "pollutants" because they change the lakes' chemical and physical structures. In addition to altering nutrient cycles and food webs, they urged that newly added fish could spread disease and increase competition with native fish for food sources. In a motion to dismiss, the Department and its co-defendants argued that their stocking practices are lawful under the Clean Water Act because fish do not quality as biological materials. U.S. District Judge William Orrick agreed and dismissed the suit without the right to re-file it.

Navy Takes Aim at California Sea Otters

KCET News - Nov 11

A Defense Authorization bill now on the floor of the U.S. Senate would exempt the Navy from environmental laws protecting California's southern sea otter population, prompting environmental groups to urge that the language be stripped from the bill. The bill, expected to reach a floor vote in late November, would exempt the Navy from provisions of the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA) in two newly-declared "Southern Sea Otter Military Readiness Areas" along the Ventura and San Diego coasts, sharply reducing the level of protection the otters enjoy. The southern sea otter is listed as "threatened" under the ESA.


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