California Environmental Law & Policy Update - March 2015

Allen Matkins
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Environmental and Policy Focus

Berkeley Hillside: New Supreme Court decision defines limits of CEQA exemption challenges to development

Allen Matkins - Mar 2

On March 2, the California Supreme Court issued the highly anticipated CEQA decision: Berkeley Hillside Preservation v. City of Berkeley. The case addresses whether the "unusual circumstances" exception to CEQA's categorical exemptions is subject to either "fair argument" or "substantial evidence" review when evaluating if unusual circumstances exist for a real estate development project and whether those circumstances could cause one or more significant environmental impacts. The Court ruled that whether unusual circumstances exist was subject to the more deferential substantial evidence test. Accordingly, a lead agency's determination that a project does not present any unusual circumstances will be upheld in the courts as long as there is evidence to support that decision, notwithstanding conflicting evidence submitted by project opponents. Significantly, however, if a lead agency determines that unusual circumstances are, in fact, present, whether those circumstances will cause a significant environmental effect is determined under the less-deferential "fair argument" standard, making it easier for project opponents to challenge the project.

Senate fails to override Obama veto of Keystone measure

Bloomberg - Mar 4

The U.S. Senate failed to override President Barack Obama’s veto of a bill forcing approval of the Keystone XL pipeline, a setback for Republicans who’ve made building the $8 billion U.S.-Canada oil link a legislative priority. Eight Democrats joined 54 Republicans in voting to overturn the veto, short of the two-thirds super majority needed. Obama said he opposed the bill because it would circumvent his administration’s review, now in its sixth year.

State alleges Modesto wine bottle maker used hazardous waste in glass

San Jose Mercury News - Mar 4

The state Department of Toxic Substances Control (DTSC) has alleged that Gallo Glass Co. used hazardous waste in the manufacturing process for its wine bottles, but Gallo officials say the lawsuit has no merit. The state attorney general's office filed a civil complaint against Gallo on behalf of the DTSC in Alameda County Superior Court in Oakland on February 27. The complaint alleges that Gallo's plant in Modesto illegally introduced dust containing lead, arsenic, cadmium, and selenium into the manufacture of the bottles. Gallo agreed to stop using the dust as an ingredient in their wine bottles last May, but the complaint alleges that the dust is hazardous waste that Gallo has failed to handle appropriately under state law.

Oil company sues to overturn San Benito County hydraulic fracturing ban

San Jose Mercury News - Mar 2

An oil company has sued to block San Benito County’s voter-approved hydraulic fracturing ban in a move that could affect the growing trend of California cities and counties’ efforts to stop the controversial oil drilling practice. In the lawsuit, Citadel Exploration, based in Newport Beach, is attempting to overturn Measure J, approved by 59 percent of San Benito County voters four months ago. Calling Measure J "an illegal local statutory scheme," Citadel said only the state of California, not local governments, can regulate oil and gas drilling.

Hundreds of illicit oil wastewater pits found in Kern County

Los Angeles Times - Feb 26

Water officials in Kern County discovered that oil producers have been dumping chemical-laden wastewater into hundreds of unlined pits that are operating without proper permits. Inspections completed last week by the Central Valley Regional Water Quality Control Board revealed the existence of more than 300 previously unidentified waste sites. The water board’s review found that more than one-third of the region’s active disposal pits are operating without permission. The pits raise new water quality concerns in a region where agricultural fields sit side by side with oil fields and where California’s ongoing drought has made protecting groundwater supplies paramount.

Federal officials: no water for many Central Valley farms

KQED - Feb 27

The latest shoe to drop in the Great Drought of 2011-15 (and counting): Farms that have contracts to get water from the federal Central Valley Project can expect none this year. For those customers, this news from the U.S. Bureau of Reclamation belongs in the “not-shocking-but-terribly-disappointing” category. Carl Janzen, chairman of the San Joaquin Valley’s Friant Water Authority board and a retired dairyman, said that as hard as 2014 was — another zero-allocation year that led farmers to fallow hundreds of thousands of acres and spurred a frenzy of well-drilling as growers tried to keep crops and orchards alive with groundwater — 2015 could be worse.

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