California Fish and Game Commission to Reconsider Petition to Protect the American Pika under the California Endangered Species Act Based on the Threat of Climate Change

At its February 3, 2011, meeting, the California Fish and Game Commission (Commission) announced it will reconsider whether the American pika qualifies for listing as a threatened species under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.). The American pika is a small, herbivorous relative of the rabbit that resides in cool, relatively moist climates, including California’s eastern Sierra Nevada mountain range. The Commission’s decision to reconsider the pika for listing was made in response to a lawsuit filed by the Center for Biological Diversity (CBD), which petitioned the Commission to list the pika in 2008. (Center for Biological Diversity v. California Fish & Game Commission (San Francisco Superior Court No. CPF-090509927).) According to CBD’s petition, the pika is threatened with extinction because temperature increases resulting from global climate change have reduced the pika’s alpine habitat, thereby forcing the pika to move to higher, cooler elevations. As its habitat has diminished, so has its population.

Federal Government Approves of Blythe Solar Power Project

On October 25, 2010, Secretary of the Interior, Ken Salazar, approved the Blythe Solar Power Project, making it the largest solar power project to be approved for construction on public lands in the United States. The California Energy Commission licensed the project on September 15, 2010. The project will also require a right-of-way grant from the U.S. Bureau of Land Management. As a result of environmental review under CEQA and NEPA, the project applicant will be required to providing funding for the conservation of more than 7,000 acres of habitat for the desert tortoise, western burrowing owl, bighorn sheep, and Mojave fringe-toed lizard to mitigate the project’s impacts. It is expected to be the world’s largest concentrated solar power facility upon completion, at least for now.

Summary of Recent Actions on Land Use and Redevelopment Legislation

LAND USE PLANNING & DEVELOPMENT

SB 959 (Ducheny) reestablishes the Office of Planning and Research’s permit assistance duties. Status: Vetoed.

SB 1019 (Correa) extends the sunset date on the procedures for cities and counties to release subdivision performance securities to January 1, 2016. Status: Signed; Chapter 174, Statutes of 2010…

Ninth Circuit Finds Endangered Species Act Imposes No Requirement that Agencies Consider Cumulative Impacts Above and Beyond Effect of Critical Habitat Designation

In Home Builders Association of Northern California v. United States Fish and Wildlife Service (9th Cir. 2010) 616 F.3d 983, Home Builders Association of Northern California and other industry groups (Home Builders) challenged the designation by the U.S. Fish and Wildlife Service (USFWS) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species. Butte Environmental Council and other conservation groups (Butte Environmental) intervened as defendants in support of the designation. The Home Builders alleged the USFWS’s final critical habitat designation went too far, while Butte Environmental challenged it for not going far enough. The district court ultimately granted summary judgment to the USFWS on Home Builders’ challenge. On Butte Environmental’s challenge, though, the court ruled that the USFWS failed to properly consider the issue of species conservation, in addition to species survival, in violation of the Endangered Species Act (ESA) as interpreted in Gifford Pinchot…

EPA Proposes New Rule for Power Plant Emissions

The federal Environmental Protection Agency (EPA) has proposed a new rule to regulate emissions from fossil fuel-fired power plants in thirty-one eastern and midwestern states as well as the District of Columbia. The Transport Rule would require significant reductions in emissions of SO2 and NOx. These pollutants often travel downwind to inhibit the ability of downwind states to comply with National Ambient Air Quality Standards for particulate matter and ground-level ozone. Specifically, EPA would establish an emission cap for each upwind state subject to the rule, with trading in emission credits allowed intrastate and, on a limited basis, interstate. The Transport Rule would go into effect in 2012, with a second phase following in 2014. EPA is accepting…

First District Upholds Alternatives Analysis, Finding Substantial Evidence Supported Agency’s Decision Not to Analyze an Off-Site Alternative

Jones v. University of California Regents (2010) 183 Cal.App.4th 818.

The First District Court of Appeal reversed a trial court ruling and upheld the alternatives analysis in an environmental impact report (EIR) prepared by the Regents of the University of California (Regents) for a long range development plan (LRDP) for the Lawrence Berkeley National Laboratory. The LRDP EIR included analysis of the following alternatives: (1) the mandatory “no project” alternative; (2) a reduced growth alternative that would reduce the amount of occupiable building space and parking, as well as the new adjusted daily population; (3) a reduced growth alternative that would increase…

CEQ Issues Draft NEPA Guidance On Climate Change, Mitigation Measures, And Categorical Exclusions

In conjunction with this year’s 40th anniversary celebration of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) published two new draft NEPA guidance documents in the form of memoranda on February 18, 2010, addressing issues of global climate change. The NEPA process seeks to inform federal agency decision-makers and the public about major federal actions by making “advice and information useful in restoring, maintaining, and enhancing the quality of the environment[.]” (42 U.S.C. § 4332(2)(G).) The memoranda discuss…