California Environmental Law and Policy Update - August 2017

by Allen Matkins

Environmental and Policy Focus

Reversing course, EPA will not delay an Obama ozone rule

Washington Post - Aug 3 The U.S. Environmental Protection Agency (EPA) has reversed its effort to delay Obama administration regulations to curb air pollution that forms smog, which are slated to take effect on October 1. With no mention of the lawsuit filed this week by 16 states (including California) over that proposed delay, EPA Administrator Scott Pruitt, who previously said he would delay implementation of the 2015 Ozone National Ambient Air Quality Standards, said in a statement late Wednesday that he would now work “with the states through the complex designation process.” In his statement, Pruitt asserted that the Clean Air Act gave his agency authority to delay implementation for up to a year to obtain “sufficient information to support ozone designations,” and said the EPA may take “future action to use its delay authority.” The rule would lower limits on the amount of ground-level ozone — produced when pollutants from cars, oil refineries, and other industrial plants react chemically in sunlight — to 70 parts per billion from 75.

Federal court avoids big issue for California bullet train

KPCC - Aug 3 The U.S. Court of Appeals for the Ninth Circuit on Wednesday refused to weigh in on a thorny issue that could complicate California's plans to construct a $64 billion bullet train between Los Angeles and San Francisco. The three-judge panel said it lacked authority to rule on a federal agency's determination that it has the power to preempt California's strict environmental law, the California Environmental Quality Act (CEQA), because the agency’s decision was advisory and had no legal consequences. The case stemmed from a 2014 finding by the U.S. Surface Transportation Board, which created uncertainty for lawsuits filed against the state's high-speed rail project under CEQA. The California Supreme Court last week contradicted the surface transportation board finding, ruling in a separate case that federal law does not allow state-owned rail projects to completely bypass CEQA.

Gas utility resumes injections at Aliso Canyon despite opposition from county, residents

Los Angeles Times - Jul 31 Southern California Gas Co. (SoCalGas) announced Monday it had resumed injections at the Aliso Canyon gas storage facility, less than two days after an appeals court lifted a temporary stay banning operation of the facility. The Aliso Canyon natural gas storage facility in the San Fernando Valley was the site of the largest methane gas leak in U.S. history, emitting more than 100,000 tons of the greenhouse gas over a four month period starting in October 2015. The news Monday came amid ongoing legal wrangling between L.A. County, state regulators, and SoCalGas over what the county alleges was a failure to conduct legally-required safety and environmental analyses before reopening the facility, and to turn over related public records. L.A. Deputy County Counsel, Scott Kuhn, said the county was very disappointed its stay of the decision to reopen the facility was denied, but noted that the courts have yet to rule on the county’s broader request to order state regulators to complete the safety and environmental analyses before continuing injections.

Ranchers sue over designation of 1.8 million California acres as critical habit for amphibian species

Sacramento Bee - Jul 31 The California Farm Bureau and two ranchers’ associations sued the U.S. Fish and Wildlife Service on Monday, challenging a year-old decision to designate more than 1.8 million acres of rural California in the Sierra Nevada region as “critical habitat” for two frog species and one toad species protected by the federal Endangered Species Act (ESA). Most of the land is owned by the government and is in designated wilderness areas, where the “highest level of conservation protection” is required. The Sierra Nevada yellow-legged frog and the mountain yellow-legged frog were listed as “endangered ” while the Yosemite toad was listed as threatened in 2014 under the ESA. Designation of critical habitat is typically the final step in the process of officially listing an animal as endangered.

Department of Homeland Security to bypass environmental laws in border wall work

New York Times - Aug 1 The Department of Homeland Security said on Tuesday that it would use its authority to exempt the agency from having to comply with environmental and other laws in its efforts to build border walls and access roads in the San Diego area. The waiver would apply to the construction of several wall prototypes the agency plans to build in the region in response to an executive order signed by President Trump in January. Congress has passed several laws that give Homeland Security the authority to exempt its construction of physical barriers like border walls from a variety of environmental and land management laws. According to the agency, the department invoked that authority five times from 2005 to 2008. Trump’s plan to build a border wall has been part of a contentious budget fight in Congress.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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