California Environmental Law & Policy Update - December 2015 #3

by Allen Matkins
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Environmental and Policy Focus

California Supreme Court rejects mandatory "reverse CEQA" analysis

Allen Matkins
- Dec 18

The California Supreme Court issued its long awaited opinion yesterday in California Building Industry Association v. Bay Area Air Quality Management District (CBIA v. BAAQMD), commonly referred to as the "Reverse CEQA" case. The Supreme Court's opinion upholds four published CEQA decisions and rejects the so-called "reverse CEQA" argument, which would require an analysis of the "impact of existing environmental conditions on a project's future users or residents" for every proposed development project in California. The Court held – based on the plain language of CEQA – that a lead agency must analyze the impact of existing environmental conditions on a project only for certain airport, school, and housing construction projects and when a proposed project "risks exacerbating" existing "environmental hazards or conditions."

California reaches $26 million settlement with Comcast over electronic waste

Los Angeles Times 
- Dec 15
Cable television giant Comcast Corp. has agreed to pay the state of California $25.95 million to resolve allegations that the company unlawfully disposed of electronics, including remote controls, modems, splitters, and routers. California Attorney General Kamala Harris and Alameda County District Attorney Nancy O’Malley on Tuesday announced the settlement with Comcast. The Attorney General said the company had been "careless" in disposing materials that are considered hazardous waste. The state's investigation showed that, since 2005, Comcast warehouse and dispatch workers in Northern California had unlawfully disposed of electronic equipment by sending it to local landfills. A judge must approve the settlement with Comcast before it becomes final.

San Diego approves historic climate change plan

San Diego Union-Tribune 
- Dec 15
San Diego on Tuesday adopted one of the nation’s most ambitious plans to cut carbon emissions. In one aspect, the city’s plan goes even further than the historic climate change deal forged Sunday by world leaders gathered in Paris: It creates legally binding mandates for reducing levels of greenhouse gases. The City Council unanimously approved the so-called Climate Action Plan, which requires annual emissions to be cut in half during the next two decades based heavily on a strategy to use 100 percent renewable energy within that same timeline. If the city does not follow through on its promise to fight climate change, environmental groups as well as the state attorney general could file lawsuits to force the City to comply.

Federal appeals court leaves EPA mercury pollution rule in effect

New York Times
- Dec 15
An appeals court has agreed to leave intact a federal rule targeting mercury pollution from coal- and oil-fired power plants while government officials decide how to account for the costs associated with its implementation. The ruling Tuesday is a win for the Obama administration, which is working to revise the rule to address the court rulings and reissue it by April 15. The Supreme Court ruled in a 5-4 decision in June that the Environmental Protection Agency should have considered the costs and benefits of its plan before deciding to impose limits on mercury and other hazardous air pollutants. But the justices let the rule stay in effect and returned it to the U.S. Court of Appeals for the District of Columbia Circuit to decide how a cost-benefits analysis should be conducted. Twenty-one Republican-led states and several industry groups had asked the appeals court to halt the plan, which originally took effect in 2012. They argued that power plants and their customers should not have to bear the hefty costs of installing and operating equipment to remove the pollutants while the legal underpinnings of the rule remain in doubt. In its two-page order Tuesday, the three-judge panel said the decision to leave the rule in place was based in part on the EPA's estimate that it is on track to issue the new rule in just four months.

California drought regulators back off controversial salmon-rescue plan

Sacramento Bee
- Dec 15
California drought regulators on Tuesday backed off a controversial plan to withhold water from farms and cities next year in an effort to preserve an endangered species of salmon, instead choosing a more flexible approach they said still could accomplish the goals. The State Water Resources Control Board voted 4-0 to require that regulators work to ensure Sacramento River temperatures do not exceed 56 degrees next year, the maximum temperature at which juvenile winter-run Chinook salmon can survive. But the board decided to give the U.S. Bureau of Reclamation considerable leeway in determining how best to meet that temperature threshold. The water board was contemplating a plan that would have required the bureau to hold back an additional 200,000 acre-feet of water at Lake Shasta through next October to help ensure the water released into the Sacramento River would be cool enough to keep the juvenile salmon alive during next year’s run. That plan would have kept 1.6 million acre-feet in Shasta much of next year, up from 1.4 million acre-feet this year. Farmers and groups representing downstream cities argued that the plan was too rigid and would deprive them of much-needed water supplies.

Third suit filed against Kern County’s new oil permit system, this one by oil producer

Bakersfield Californian 
- Dec 14
There are now at least three lawsuits targeting Kern County's new oil and gas permitting system approved November 9 by a unanimous vote of the county Board of Supervisors. A lawsuit filed by a Wasco-area farming company alleges that the county ignored concerns raised by farmers, while a coalition of environmental groups filed a separate suit saying the new rules do not offer enough protection against oil-related pollution. Now, an independent oil producer, Ken Hunter, active in local agricultural areas, has sued to block the new rules, alleging they put petroleum companies at an illegal disadvantage in negotiations with "split-estate" farmers who don't own the mineral rights under their land. Hunter’s suit in Kern County Superior Court alleges that state law guarantees oil companies access to property above their mineral rights, so long as they provide notice to the surface owner at least 30 days in advance. The new rules increase the wait to as long as four months and add the expense of hiring a county employee to monitor a drilling operation 24 hours a day if the surface owner will not sign off on the drilling plans. Under the new system, split-estate farmers may try to negotiate higher payments from mineral rights owners, Hunter’s lawsuit asserts. 

There are now at least three lawsuits targeting Kern County's new oil and gas permitting system approved November 9 by a unanimous vote of the county Board of Supervisors. A lawsuit filed by a Wasco-area farming company alleges that the county ignored concerns raised by farmers, while a coalition of environmental groups filed a separate suit saying the new rules do not offer enough protection against oil-related pollution. Now, an independent oil producer, Ken Hunter, active in local agricultural areas, has sued to block the new rules, alleging they put petroleum companies at an illegal disadvantage in negotiations with "split-estate" farmers who don't own the mineral rights under their land. Hunter’s suit in Kern County Superior Court alleges that state law guarantees oil companies access to property above their mineral rights, so long as they provide notice to the surface owner at least 30 days in advance. The new rules increase the wait to as long as four months and add the expense of hiring a county employee to monitor a drilling operation 24 hours a day if the surface owner will not sign off on the drilling plans. Under the new system, split-estate farmers may try to negotiate higher payments from mineral rights owners, Hunter’s lawsuit asserts. 

There are now at least three lawsuits targeting Kern County's new oil and gas permitting system approved November 9 by a unanimous vote of the county Board of Supervisors. A lawsuit filed by a Wasco-area farming company alleges that the county ignored concerns raised by farmers, while a coalition of environmental groups filed a separate suit saying the new rules do not offer enough protection against oil-related pollution. Now, an independent oil producer, Ken Hunter, active in local agricultural areas, has sued to block the new rules, alleging they put petroleum companies at an illegal disadvantage in negotiations with "split-estate" farmers who don't own the mineral rights under their land. Hunter’s suit in Kern County Superior Court alleges that state law guarantees oil companies access to property above their mineral rights, so long as they provide notice to the surface owner at least 30 days in advance. The new rules increase the wait to as long as four months and add the expense of hiring a county employee to monitor a drilling operation 24 hours a day if the surface owner will not sign off on the drilling plans. Under the new system, split-estate farmers may try to negotiate higher payments from mineral rights owners, Hunter’s lawsuit asserts. 

Harbor-area residents demand better oversight of L.A. port operations

Los Angeles Times
- Dec 15
Harbor-area residents and environmentalists on Tuesday urged the city to appoint an independent body to oversee the Port of Los Angeles, saying it cannot be trusted to fulfill air pollution-cutting requirements at one of its busiest shipping terminals. The demands follow the port's disclosure in September that it has failed to carry out measures it pledged years ago in a legal settlement over the expansion of the China Shipping terminal. The port did not carry out 11 of 52 mitigation measures it agreed to when approving the project in 2008, including mandates for cleaner trucks and cargo-handling equipment and measures to reduce emissions from massive container ships. Gene Seroka, who became head of the port last year, said current management is taking ownership of the problem and preparing a new environmental plan for the terminal that will include yard tractors and trucks that run on alternative fuel and other measures to make good on the air quality pledges.

Shell seeks to preserve U.S. drilling rights in Arctic Ocean

Bloomberg
- Dec 15
Royal Dutch Shell PLC is fighting to preserve U.S. drilling rights in Arctic waters three months after indefinitely halting exploration there because it failed to find meaningful oil or natural gas deposits. Europe’s largest oil company filed a notice of appeal Tuesday challenging the U.S. Interior Department’s October 29 rejection of the company’s requests to stop the clock on Arctic oil and gas leases that otherwise expire between 2017 and 2020. The dispute is expected to undergo an administrative review by the Interior Board of Land Appeals, possibly delaying a final judgment until after a new U.S. president takes office. Shell’s request comes as other companies have abandoned Arctic oil exploration that is opposed by Greenpeace, Oceana, Sierra Club, and other environmental groups that say the drilling risks damaging a fragile ecosystem. The Obama administration also has backed away from selling new leases and canceled two planned auctions, citing low industry interest.

 

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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