Archive for October, 2013


On Monday, October 28, 2013, California Governor Jerry Brown signed a landmark climate change agreement. Governor Brown met in San Francisco with the governors of Washington and Oregon and the Premier of British Columbia to announce the partnership. Also in attendance were British Columbia’s Minister of the Environment as well as business, labor, and environmental officials from the four jurisdictions. The deal is based on the contiguous geography and shared infrastructure of the West Coast and linked economies with a combined GDP of $2.8 trillion – collectively, the world’s fifth largest economy. A meeting with the leaders of provinces on the coast of China is scheduled for January 2014, at which point those provinces may join the current group.

The three states and Canadian province formally aligned their climate policies to collectively combat climate change and promote clean energy. Oregon and Washington will bring their efforts to reduce greenhouse gas emissions from vehicles and industrial sources closer to those of California and British Columbia. Oregon will set a price for carbon, and Washington will develop a cap-and-trade market. California and British Columbia will continue their current carbon-reducing pursuits, and the four jurisdictions will harmonize their 2050 greenhouse gas reduction targets. The plan also includes integrating regional electricity grids to provide greater access to renewable sources.

The agreement did not create the regional carbon market sought by California. However, the state is planning to open an emissions market with the Quebec province in 2014. In 2007, a group of western states and Canadian provinces came together in the Western Climate Initiative to create a regional market for greenhouse gas emissions. The group dispersed in 2011, as California and Canadian provinces pursued emissions trading, and the other states branched off to non-market-based strategies.

The accord originated from the Pacific Coast Collaborative, a group that, since 2008, has organized climate change and clean energy policies.

On October 15, 2013, the U.S. Supreme Court granted certiorari in Coalition for Responsible Regulation v. EPA (2012) 684 F.3d 102. It is regarded as the most important federal case involving greenhouse gas emissions after its predecessor, Massachusetts v. EPA (2007) 549 U.S. 497.

Background

The case below involved a number of the U.S. EPA’s Clean Air Act rules regulating greenhouse gas emissions from stationary sources, such as large industrial plants, refineries, and factories. A three-judge panel of the United States Court of Appeals for the D.C. Circuit unanimously upheld the EPA’s rules in June 2012. Specifically, the court upheld the EPA’s endangerment finding for greenhouse gases and the agency’s decision that the endangerment finding made greenhouse gases an “air pollutant” for purposes of the Prevention of Significant Deterioration (PSD) program. The court also held that plaintiffs lacked standing to challenge how the rule is phased in.

Various interest groups and states submitted a total of nine petitions for certiorari, seeking to overturn the D.C. Circuit’s decision. The Supreme Court accepted six of these petitions.

The Court will consider the narrow issue of whether the EPA acted within its authority in determining that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements for stationary sources under the Clean Air Act. This means that the Court will leave some of the lower court’s findings undisturbed, including the endangerment finding and the “tailpipe rule,” which sets emissions standards for automobiles.

Issues

The challenged Clean Air Act provisions are the “timing” and “tailoring” rules, which together exempt small stationary sources from the greenhouse gas regulations that would otherwise apply. As enacted, the Act regulates every “source” of greenhouse gases emitting 100 tons of a single pollutant, including homes, apartment buildings, and small businesses. The EPA determined that regulating every source at that emission level would be both impractical and politically unpopular, so it created the tailoring rule to confine application of the Act to new sources emitting at least 100,000 tons of greenhouse gases per year and modifications of existing sources that increase emissions by 75,000 tons.

The industries and states challenging the tailoring rule argue that the rule is unlawful, since it relieves sources emitting between 100 and 100,000 tons from regulation when the statute clearly says those sources must be regulated. They also argue that the PSD provisions of the Act under which the EPA is regulating the larger emitters do not apply to greenhouse gases. The challengers believe the PSD provisions only apply to those pollutants on the National Ambient Air Quality Standards’ criteria pollutants list, which does not include greenhouse gases.

The criteria pollutant list is selective; it contains only six air pollutants which have a demonstrable effect on human health, such as lead and carbon monoxide. However, after the Court held that greenhouse gases are air pollutants under the Clean Air Act in the 2007 case Massachusetts v. EPA, the EPA found six greenhouse gases that must be regulated due to their threat to public health and welfare. Thus, though greenhouse gases are not technically listed as a criteria air pollutant, they have been found to be dangerous to human health. In fact, the PSD already applies to non-criteria pollutants, albeit more obscure ones like sulfuric acid mist. Plus, the EPA’s interpretation of its own statutes will be accorded significant deference under Chevron, which makes the challengers’ position an uphill battle.

The lower court never reached the substance of the challengers’ arguments because it found that they did not have standing, reasoning that regulating larger businesses while exempting smaller ones did not injure the larger businesses. In fact, the Court found that the tailoring rule could even help states like Texas – one of the states challenging the rule – because it would lessen the state’s burden in administering the Clean Air Act permitting program.

A ruling on the statutory interpretation issues could help to clear some of the ambiguities plaguing the Clean Air Act, which has not been amended since 1990. With the increasing national and international focus on climate change, environmentalists and industry alike would benefit from more guidance on how the Act applies to greenhouse gases. The Court will hear arguments in early 2014 and is anticipated to issue a ruling by July.

(2013) 57 Cal.4th 439

A majority of the California Supreme Court held that a lead agency only has the discretion to completely omit analysis of the project impacts on existing conditions if it can justify its decision to exclusively use a future conditions baseline by showing an existing conditions analysis would be misleading or without informational value. On this basis, the majority found a light-rail project’s EIR deficient for exclusively using year-2030 conditions as the baseline and for failing to provide an existing conditions analysis. Although the lead opinion by Justice Werdeger and the concurrence by Justice Baxter provided different rationales for upholding the EIR, the six justices joining in these two opinions did agree to affirm the appellate court’s judgment that upheld the EIR and denied the petition for writ of mandate.

Facts and Procedural Background

In 2007, the Exposition Metro Line Construction Authority (Expo Authority) issued a notice of preparation for an EIR for the Exposition Corridor Transit Project (Expo Phase 2), which would construct a light-rail transit line running from a station in Culver City to a terminus in Santa Monica. The Expo Phase 2 project was designed to provide high-capacity transit service between the Westside area of Los Angeles and Santa Monica, creating an alternative to the area’s congested roadways. The Expo Authority certified a final EIR and approved the Expo Phase 2 project in 2010.

Subsequently, Neighbors for Smart Rail filed a petition for writ of mandate alleging that the approval of Expo Phase 2 violated CEQA. The superior court denied the petition, and the Court of Appeal affirmed. The Neighbors filed a petition for review with the California Supreme Court, raising two issues: (1) the propriety of the EIR’s exclusive use of a future conditions baseline for assessment of likely impacts on traffic congestion and air quality, and (2) the adequacy of mitigation measures for potentially significant spillover parking effects in areas near planned transit stations.

California Supreme Court’s Decision

The Court issued one lead opinion and two concurring and dissenting opinions. Justice Werdeger, joined by Justices Kennard and Corrigan, wrote the Court’s lead opinion. Justice Baxter, joined by Chief Justice Cantil-Sakauye and Justice Chin, wrote a concurrence and dissent that differed from the lead opinion on the baseline issue. Justice Liu wrote a separate concurrence and dissent that differed from the lead opinion on the question of whether the EIR’s failure to use existing conditions as the baseline was prejudicial. All justices agreed that the Neighbors’ contentions regarding mitigation for spillover parking effects should be rejected. Otherwise, the Court split along different lines on both the baseline and prejudice analyses. Nonetheless, there was a majority of four justices on every issue except the prejudice question, and six justices agreed the EIR should be upheld.

Justice Werdeger’s lead opinion tackled the baseline issue first. In an overview of leading CEQA cases that discuss the use of a future conditions baseline, the lead opinion paid special attention to Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, and Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. Expressing the majority’s view, the lead opinion concluded that unusual aspects of a project or surrounding conditions can justify a departure from the “default” use of an existing conditions baseline that CEQA Guidelines section 15125, subdivision (a), prescribes. In other words, the Court held that while lead agencies have the discretion to “omit an analysis of the project’s significant impacts on existing environmental conditions and substitute a baseline consisting of environmental conditions projected to exist in the future, the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.” The Court explicitly disapproved Sunnyvale West Neighborhood Association, supra, 190 Cal.App.4th 1351, and Madera Oversight Coalition v. County of Madera (2011) 199 Cal.App.4th 48, insofar as they hold the exclusive use of a future conditions baseline may never be employed.

Having established the appropriate standard for analyzing the baseline issue, the Court proceeded to conduct a factual assessment of the Expo Authority’s use of projected conditions in the year 2030 as a baseline. After a brief review of the EIR’s discussion of traffic congestion, air pollution, and baseline choice, the Court found that the administrative record did not contain substantial evidence to support the Expo Authority’s decision to omit an analysis of project impacts on existing conditions. This conclusion was joined by Justice Liu and represents the majority view.

Nonetheless, the three justices in the lead opinion proceeded to find that the EIR’s failure to use an existing conditions baseline did not have a prejudicial effect and did not deprive decision makers or the public of substantial information relevant to the project’s potential impacts. In part II.B.5, the lead opinion provides its prejudice analysis and explains how the EIR’s extensive analysis of year 2030 project impacts demonstrated “the lack of grounds to suppose the same analysis performed against existing . . . conditions would have produced any substantially different information.” But Justice Werdeger’s opinion is carefully worded to limit the lead opinion’s conclusion– that the EIR’s failure to analyze the project’s effects on existing traffic and air quality conditions had no prejudicial effect– to “these particular factual circumstances.” As footnote 2 explains, the prejudice analysis in part II.B.5 does not represent the view of the majority. In fact, Justice Liu based his dissent on the prejudice issue, and Justice Baxter’s concurrence brings up Justice Werdegar’s prejudice analysis only to support the assertion that the EIR’s assessment of Expo Phase 2′s impacts did adequately inform decision makers and the public.

The lead opinion closes with a short discussion of the adequacy of mitigation measures for spillover parking effects. The Expo Authority and Metropolitan Transportation Authority (Metro) had adopted a series of measures proposed by the EIR, including: monitoring of on-street parking, Metro’s financial and administrative assistance with appropriate permit parking programs, and Metro’s commitment to work with local jurisdictions to decide on other options (time-restricted, metered, or shared parking arrangements) if necessary. The Court rejected Neighbors’ reliance on Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-62, finding that case to be factually distinguishable. While acknowledging that the Expo Authority and Metro “cannot guarantee local governments will cooperate to implement permit parking programs or other parking restrictions,” the Court found that the record supported the conclusion that local municipalities can and should cooperate. This portion of the opinion is the only part that enjoys the support of all seven justices.

Justice Baxter’s concurring and dissenting opinion disagreed with the lead opinion’s baseline analysis. Rejecting the new standard articulated by the majority, Baxter’s opinion proposed a new rule in which “an agency retains discretion to omit an analysis of a project’s likely impacts with an existing conditions baseline, so long as the selected alternative of a projected future conditions baseline is supported by substantial evidence and results in a realistic impacts analysis that allows for informed decisionmaking and public participation.” Using this alternative rule, Baxter’s opinion concluded that the agency “did not abuse its discretion in forgoing an existing conditions baseline in favor of a 2030 baseline” because substantial evidence did support the 2030 baseline as a realistic baseline for analyzing the project’s impacts. According to Baxter’s opinion, the EIR should be upheld because it was not deficient and, therefore, there was no need to address the question of whether the alleged baseline error was prejudicial. Finally, Baxter’s opinion asserts two main criticisms of the majority’s analysis: (1) the majority’s restrictions are not supported by CEQA or CEQA Guidelines, (2) the majority’s analysis creates uncertainties regarding CEQA compliance, increasing project costs and delays.

[RMM Partner Tiffany K. Wright and Associate Amanda R. Berlin represented Real Parties in Interest Los Angeles County Metropolitan Transportation Authority]

A new EPA draft report titled “Connectivity of Streams and Wetlands to Downstream Waters” is drawing attention across the country. When finalized, the document will provide the scientific basis for clarifying and possibly expanding Clean Water Act jurisdiction over isolated wetlands and other marginal waters. The process is expected to be controversial.

Federal officials increasingly have been at odds with public and private property owners, developers and project proponents over the jurisdiction of such waters in the wake of recent U.S. Supreme Court decisions, including Rapanos v. United States, 547 U.S. 715 (2006).  The EPA’s new report, released in September, synthesizes a large body of peer-reviewed literature on the topic. The report describes the effects that wetlands, ephemeral and intermittent streams, vernal pools, ponds, prairie potholes, and other “unidirectional” water bodies have on larger downstream waters, including lakes, rivers, oceans, and estuaries. The effects studied include not only hydrological connections to traditional downstream waters, but also biological, physical, chemical and ecological impacts.

The report will play a key role in the upcoming joint rulemaking by the U.S. Environmental Protection Agency and the Army Corps of Engineers to clarify which streams, wetlands and other waters fall under Clean Water Act jurisdiction as “waters of the United States.” The two agencies sent a draft rule to the federal Office of Management and Budget on Sept. 17 for interagency review. The draft rule has not yet been made public.

According to the EPA, the report contains three primary conclusions:

  • All streams, regardless of their size and flow rate, are connected to and have important effects on downstream waters, including providing habitat for species and transporting sediment and organic matter.
  • Wetlands and open-waters in the floodplains of streams and rivers and in riparian areas are integrated with streams and rivers. Such waters influence downstream waters by affecting flows, exchanging biological species, and trapping and reducing pollutants.
  • There is insufficient information to generalize about wetlands and open-waters that are located outside of riparian areas and their connectivity to downstream rivers, streams and oceans.

The draft “Connectivity” report is available here:

The EPA Science Advisory Board plans to hold a three-day public hearing Dec. 16–18, 2013, in Washington, D.C. to review the report.

Governor signs SB 743, the “Kings Arena” CEQA bill

October 9th, 2013 by Gwynne Hunter

Signed by Governor Brown on September 27, 2013, Senate Bill (SB) 743 includes streamlining provisions to help expedite judicial review of the proposed downtown Sacramento Kings arena. The bill also affects judicial review of environmental leadership projects and procedural requirements for certain infill projects.

The bill lays out requirements for the proposed arena such as carbon-neutral operation which, if met, subject any CEQA challenges to a 270-day resolution timeframe and new rules of court. Snags may arise if the new court rules are not adopted by July 1, 2014, or if litigation precedes that date.

“Environmental leadership projects,” which are projects satisfying particular requirements related to state investment, job creation, and greenhouse gas emissions, qualify for the same 270-day resolution under the bill. SB 743 also extends by six months the period in which to obtain certification for one of these projects, so more projects may receive certification by the new deadline of December 30, 2015.

With SB 743, infill projects in transit priority areas – those near rail stations and other transportation terminals – will no longer have to account for aesthetic and parking impacts under CEQA when undergoing review, since such impacts are no longer considered significant, although any relevant local policies would still need to be considered. The Governor’s Office of Planning and Research is tasked with creating guidelines for assessing transportation impacts within priority areas.

CEQA litigators can breathe a small sigh of relief knowing that a calendaring error during otherwise vigorous advocacy should not prejudice their clients. The Second District Court of Appeal in Comunidad en Accion v. Los Angeles City Council, ___ Cal. App. 4th ___, Case No. B240554 (Sept. 20, 2013) found that requesting a CEQA hearing seven days past the 90-day deadline was excusable error deserving discretionary relief. Environmental justice advocates, however, will be disheartened by the court’s separate holding that a city’s local enforcement agency is not subject to the antidiscrimination statute that applies to state-funded activities.

Background

In May 2010, the Los Angeles City Council approved siting a new 104,000-square-foot solid waste transfer station, an expanded materials recycling facility, and an expanded green waste processing center at the Bradley Landfill site in Sun Valley, Los Angeles. Community organization Comunidad en Accion challenged the city’s decision, alleging the facility subjected the predominately Latino Sun Valley residents to a disproportionate amount of pollution.

Under CEQA, a petitioner must request a hearing within 90 days of filing its petition or be subject to dismissal on the court’s or another party’s motion. Comunidad’s counsel inadvertently omitted the 90-day deadline from his personal calendaring system, and thus was seven days late requesting a hearing. The trial court found this delay inexcusable and dismissed Comunidad’s CEQA claims.

CEQA holding

The court of appeal disagreed and held the trial court abused its discretion in denying Comunidad’s motion for relief from dismissal. The court laid out two competing public policies at play: a strong preference for trial on the merits versus the desire for expeditious CEQA review. Previous cases had afforded plaintiffs relief in CEQA actions where there was “excusable error,” which the court defined as a mistake anyone could have made, rather than conduct falling below a professional standard of care. A calendaring error, the court believed, was a “clerical type mistake, not one involving professional skill.”

The court analogized two cases that had found calendaring errors excusable under certain circumstances. The guiding principle in those cases was that unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. The court also distinguished a case of inexcusable error where counsel made numerous missteps resulting in the absence of any opposition to a summary judgment. Comunidad counsel’s one-week delay in requesting a hearing, in contrast, was “an isolated mistake in an otherwise vigorous and thorough presentation” of the client’s claims. The court emphasized that counsel had diligently prosecuted the case up to that point. Furthermore, respondents had not suffered prejudice from the delay, since their preparation of the administrative record was not complete when Comunidad requested a hearing.

Supreme Court Upholds Marin County’s Plastic Bag Ban

October 7th, 2013 by Gwynne Hunter

On October 2, 2013, the California Supreme Court followed the state’s growing trend of rulings favoring plastic bag bans when it unanimously denied review of the First District Court of Appeal’s decision upholding Marin County’s ordinance.

Since 2012, retail stores in unincorporated Marin County have been banned from offering single-use plastic bags at check-out, and paper bags carry a 5-cent fee. The purpose of the ordinance, according to the County, is to reduce land and water pollution from discarded bags. Nearly 50 other California cities and counties have implemented similar laws.

Plastic bag manufacturers claim that the measure is actually worse for the environment because it leads to greater use of paper bags, which they argue require more energy to produce and also take up more landfill space. However, the First District Court of Appeal found enough evidence to support the County’s assertion that the ordinance will protect the environment and thus did not require a review of possible negative impacts of the ban. Because the ban is limited to unincorporated areas, it only applies to 40 stores. The Court of Appeal opined that any increase in paper bag use at this small scale would have trivial environmental effects.