Latham's Clean Energy Law Report

California Appeals Court: Statewide Emissions Goals May Inform Mitigation Measures

Posted in California, CEQA, Environmental Litigation

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Diego Enrique Flores, and Samantha K. Seikkula

In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the trial court’s judgment denying Responsible Development for Water Tank Hill’s (Petitioner’s) petition for writ of mandate, finding that the County of San Mateo (County) had properly analyzed the potential environmental impacts of San Mateo Real Estate, Inc.’s (Developers’) proposed housing development (Project) and that the County’s determinations were supported by the substantial evidence. In summary, the court determined:

  • An EIR’s analysis of noise impact should be site-specific and should consider qualitative factors as well as technical factors
  • When an EIR finds, based on substantial evidence, that an impact would be less-than-significant, further mitigation is not required.
  • An agency may rely on statewide emissions-reduction goals when determining mitigation measures to reduce a project’s significant GHG impacts.

Background for Appeal

After several rounds of public comment, the San Mateo County Planning Commission (Commission) approved the Project. The County Board of Supervisors denied an appeal of the approval and upheld the Commission’s decision. Petitioner then filed a petition for writ of mandate seeking to set aside the Project approvals as inadequate under CEQA. Petitioner argued that the approvals were inadequate because:

  • The environmental impact report (EIR) failed to adequately analyze impacts
  • The County failed to adopt feasible mitigation measures
  • The County’s findings were not supported by substantial evidence
  • The County failed to recirculate the final EIR after making changes that constituted significant new information

The trial court rejected Petitioner’s specific challenges to the County’s environmental analysis of air quality, aesthetics, hydrology, and noise, finding that the County had properly analyzed the potential environmental impacts of the Project and that the County’s determinations were supported by substantial evidence. Petitioner appealed the decision with respect to air quality and noise.

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California Appeals Court Dismisses As Moot Litigant’s Challenge to Planned Development Approval

Posted in California, CEQA, Environmental and approvals, Environmental Litigation

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, John D. Niemeyer, and Samantha K. Seikkula

In an unpublished opinion issued February 20, 2018, Advocates for Better Cmty. Dev. v. City of Palm Springs, Case No. E066193, the California Court of Appeal dismissed as moot an appeal from the trial court’s judgment and upheld the City of Palm Springs’ (City’s) decision to approve changes to a planned development in downtown Palm Springs. In summary, the court determined:

  • On appeal, a CEQA challenge is moot where, due to events that occur while the appeal is pending, the court is no longer able to grant effective relief

Advocates for Better Community Development (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to invalidate the City’s addendum to an environmental impact report (EIR) for the changes to the planned development. Petitioner argued that that the City’s approval was inconsistent with the Museum Market Plaza Specific Plan (Specific Plan) and that the approval violated CEQA because the changes were substantial and required additional environmental review. The court held that these issues were moot due to an ordinance that the City passed modifying the Specific Plan before Petitioner filed its notice of appeal.

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California Legislature Eyes 100% Clean Energy Target

Posted in Energy regulatory

The California Assembly is expected to vote this summer to establish increased renewable energy targets and set a target of 100% clean energy by 2045.

By Marc T. Campopiano, Jennifer K. Roy, Diego Enrique Flores

SB 100, Senator Kevin De Leon’s renewable energy bill, would increase California’s already ambitious renewable energy standards by 2030 with an ultimate goal of 100% clean energy by 2045. On July 3, the California Assembly Committee on Utilities and Energy passed the bill out of committee. In 2017, the bill was approved in the Senate but did not progress through the Assembly before the term ended. In 2018, SB 100 is expected to again reach the Assembly floor for consideration.

As currently drafted, SB 100 would increase California’s Renewables Portfolio Standard (RPS) requirement from 50% to 60% by 2030, and set a goal of 100% clean energy by December 31, 2045 through RPS-eligible and zero-carbon resources. Clean energy could be defined more broadly than the current definition of renewable energy, to include energy resources such as large-scale hydro power that qualify as zero-carbon.

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CEQ Seeks Input on Potential Revisions to NEPA Regulations

Posted in Environmental and approvals, Permitting

Trump Administration is weighing potentially comprehensive overhaul to regulations governing federal environmental review to cut red tape and avoid excessive delay to process.

By Janice M. Schneider, Tommy P. Beaudreau, Jennifer K. Roy, Bobbi-Jo B. Dobush, and Diego Enrique Flores

The White House Council on Environmental Quality (CEQ) recently published an Advance Notice of Proposed Rulemaking (Advance Notice) in the Federal Register, requesting public comment on potential updates to the National Environmental Policy Act’s (NEPA’s) implementing regulations intended to “ensure a more efficient, timely, and effective NEPA process[.]” The public comment period currently lasts 30 days, until July 20, 2018.

The CEQ NEPA regulations, which were first promulgated in 1978, have only been revised once (to eliminate the “worst case” analysis requirement) in 40 years. The Advance Notice was prompted by an executive order issued by President Trump on August 15, 2017, directing CEQ to enhance and modernize the federal environmental review and authorization process. Streamlining the environmental review process and cutting red tape has been a hallmark priority of the Trump Administration. CEQ subsequently identified reviewing NEPA regulations as a priority for complying with President Trump’s executive order — consistent with the Trump Administration’s many actions — including the recently issued “One Federal Decision” Memorandum of Agreement. In particular, the Department of Interior has issued Secretarial orders and policy memoranda aimed at, among other things, compressing the time and length for agency preparation of environmental impact statements and other NEPA reviews. The potentially sweeping changes to CEQ’s NEPA regulations, signaled by the Advance Notice, may prove to be the Trump Administration’s most consequential reforms of the federal environmental review process. Continue Reading

California Court of Appeal Upholds CEQA Exemption for Wireless Communications Facility

Posted in Environmental and approvals

By Daniel P. Brunton, Lucas I. Quass, and Stephanie L. Postal

CEQA Case Report: Understanding the Judicial Landscape for Development [i]

In a published opinion issued March 15, 2018, Don’t Cell Our Parks v. City of San Diego, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of San Diego’s (the City’s) determination that a wireless communications facility (the Project) qualified for a categorical exemption for new small facilities under CEQA. In summary, the court determined:

  • Exhaustion of administrative remedies is not required if the agency did not hold a public hearing or otherwise provide an opportunity for members of the public to raise objections.
  • A standalone utility can qualify under the Class 3 exemption.
  • For the location exception to CEQA exemptions to apply, a location impacted by a project must be designated as an environmental resource of hazardous or critical concern by an agency.

The petitioner, a non-profit entity (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to overturn the approval of development and use permits for the Project. Petitioner argued that the City’s determination that the Project was exempt from environmental review under the Class 3 exemption was erroneous because, as a standalone utility, the Project would not qualify for a Class 3 exemption. Petitioner also argued that, even if the Project fell within the Class 3 exemption, an environmental impact report (EIR) would be required because the unusual circumstances exception and location exception applied . The court rejected each of these arguments.

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CEQA Case Report: Understanding the Judicial Landscape for Development

Posted in Environmental and approvals

By James Arnone, Lucinda Starrett, Marc Campopiano, and Christopher Garrett

California higher courts rule in favor of public agencies on small majority of environmental impact report cases.

Over the course of 2017, Latham lawyers reviewed all 46 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a wide variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion of the patterns that emerged in these cases. Latham will continue to monitor CEQA cases in 2018, posting summaries to this blog.

The California Court of Appeal heard 43 CEQA cases, while the California Supreme Court heard the following three cases: Banning Ranch Conservancy v. City of Newport Beach, Friends of the Eel River v. North Coast Railroad Authority, and Cleveland National Forest Foundation v. San Diego Association of Governments. Exactly half of all CEQA cases decided in 2017 were published.

The chart on the right shows all 46 cases sorted by topic. The greatest number of cases (20 of the 46) focused on Environmental Impact Reports (EIRs). Attorneys’ Fees, Justiciability, and Other Procedures accounted for 12 cases. This category includes issues such as standing, preemption, statute of limitations, and res judicata. Six cases focused on negative declarations or mitigated negative declaration, while five cases focused on CEQA exemptions and exceptions to these exemptions. The remaining three cases involved supplemental review or certified regulatory programs.

In the below chart, cases are also sorted by topic but include additional information on whether the public agency prevailed in each kind of case. For purposes of this summary, if the public agency lost on any issue it is deemed to have not prevailed. Overall, public agencies prevailed in 30 of 46 cases, or 65%, but won only 55% of EIR cases. Public agencies saw their greatest level of success in exemption/exception, negative declaration, and supplemental review cases.

Read the full CEQA Case Report Year in Review 2017.

Big Changes Ahead for US Renewable Fuel Standard

Posted in Energy regulatory

Recapping the first year of activity by the Trump administration on key issues.

By Joel C. Beauvais and Steven P. Croley

The Renewable Fuel Standard, or RFS, has been the focus of sustained policy discussion and resulting uncertainty during the first year of the Trump administration. Over the past year, the administration has floated, and then set aside, several proposals for substantial policy change. The administration has also granted RFS exemptions to a substantial number of small refineries, dampening demand for the tradable credits known as renewable identification numbers, or RINs — which represent production of renewable fuels and are used to demonstrate compliance with RFS requirements — and RIN prices have decreased from approximately US$1 in November 2017 to about US$0.34 today. The administration meanwhile is conducting high-level policy discussions and considering a number of potential other changes, including allowing sales of E15 (gasoline that is 10 to 15% ethanol by volume) during summer months, currently prohibited in most areas of the country.

In an Expert Analysis article published by Law360, Latham partners Joel Beauvais and Steven Croley examined these developments, with a focus on the legal framework and implications for the RFS program writ large. The article is available here.

California Court of Appeal Finds EIR’s Air Quality Analysis Deficient

Posted in Environmental and approvals

By Christopher Garrett, James Erselius, and Samantha Seikkula

CEQA Case Report: Understanding the Judicial Landscape for Development[1]

In a partially published opinion[2] issued January 12, 2018, City of Long Beach v. City of Los Angeles, the California Court of Appeal affirmed in part and reversed in part the trial court’s judgment requiring the City of Los Angeles (Los Angeles) to set aside certifications of the environmental impact report (EIR) for a project whereby BNSF Railway Company (BNSF) would construct a 153-acre near-dock railyard four miles from the Ports of Long Beach and Los Angeles (Project).  In summary, the court determined:

  • An EIR’s analysis of air quality impacts is incomplete where it fails to provide information sufficient for the public and decision makers to understand how air quality will change with reference to time.
  • The Attorney General is exempt from CEQA’s issue exhaustion requirement.
  • A project description does not need to analyze the project’s environmental impacts.

Petitioner City of Long Beach (Petitioner) filed a petition for writ of mandate seeking to invalidate the City of Los Angeles’s (Los Angeles) EIR for the Project.  On appeal, Los Angeles challenged the trial court’s conclusions that: 1) the EIR was deficient because its project description and analysis of indirect impacts failed to discuss reasonably foreseeable indirect impacts from freeing capacity at the existing railyard near the Project site, the Hobart railyard; 2) the EIR’s analysis of noise, traffic, air quality, and greenhouse gas emissions was inadequate; and 3) the Attorney General, who intervened in the petition, was not precluded from asserting objections to the EIR that were not raised in the administrative proceedings.  The court agreed with Los Angeles that the project description, analysis of indirect impacts, and analysis of noise, traffic, and greenhouse gas emissions were adequate, but affirmed the trial court’s decision with respect to the inadequacy of the EIR’s air quality analysis and the Attorney General’s exemption from issue exhaustion rules.  Continue Reading

California Court of Appeal Approves Environmental Analysis for Oil Refinery Propane Recovery Project

Posted in Environmental and approvals

By Winston P. Stromberg, Lucas I. Quass, and Derek Galey

Rodeo Citzens Ass’n v. County of Contra Costa, California Court of Appeal, First Appellate District, Division Three, Case No. A151184 (March 20, 2018).

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

In a published opinion issued March 20, 2018, Rodeo Citizens v. County of Contra Costa, the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate requiring the County of Contra Costa to set aside the certification of the environmental impact report (EIR) and approval of the land use permit for the Propane Recovery Project (Project) at an oil refinery in Rodeo, California. In summary, the court determined:

  • A project description need not address potential changes in the use of a facility that are unrelated to the project under consideration.
  • CEQA does not require speculation regarding downstream greenhouse gas (GHG) emissions that cannot be reasonably feasibly quantified.

The petitioner, Rodeo Citizens Association (Petitioner) had filed a petition for writ of mandate seeking to invalidate the County’s certification of the final EIR and approval of the Project’s land use permit. The trial court found certain deficiencies in the air quality section of the Recirculated Final EIR (RFEIR) and issued a writ of mandate requiring reconsideration of that section, but rejected Petitioner’s remaining arguments. Despite the trial court’s issuance of the writ, Petitioner appealed the trial court’s decision rejecting Petitioner’s additional arguments that the project description and the analysis of GHG emissions and environmental hazards fail to comply with CEQA. The court found no error in the trial court’s conclusions and affirmed the peremptory writ as issued. Continue Reading

Dismissal of Low Carbon Fuel Standard (LCFS) Case Appealed Amidst Program Extension

Posted in Environmental and approvals, Permitting

Appeal in POET II could complicate California Air Resources Board’s proposed LCFS amendments.

Joshua T. Bledsoe, Kimberly D. Farbota

In the case commonly referred to as POET II, petitioner POET, LLC, a biofuels manufacturer, challenged the Low Carbon Fuel Standard (LCFS) and Alternative Diesel Fuels (ADF) regulations which the California Air Resources Board (ARB) adopted in 2015. After briefing had been completed, defendant-respondent ARB filed a motion for judgement on the pleadings (MJOP) on November 21, 2017, in an attempt to have the case dismissed in light of earlier rulings in the related POET I case. On January 5, 2018 the Fresno County Superior Court issued a ruling granting the MJOP with respect to all claims and dismissing the entire case as moot. On March 6, 2018, POET noticed an appeal of the Superior Court’s decision to the California Court of Appeal for the Fifth Appellate District, the same Court of Appeal that issued the decisions in POET I. In that decision, the court sharply criticized the ARB for not acting in good faith and found that ARB failed to comply with the California Environmental Quality Act (CEQA).

Also on March 6, 2018, ARB released proposed amendments to the LCFS that would, inter alia, extend the Program to 2030. Included in the amendment package is an analysis of nitrogen oxide (NOx) emissions attributable to the LCFS, prepared in an attempt to fulfill the writ of mandate issued in POET I. On March 12, 2018, ARB released Regulatory Guidance Document 18-01, which updates prior guidance regarding ARB’s plans to meet the requirements of the writ of mandate issued in POET I. The appeal in POET II carries important implications for the Regulatory Guidance, the amendment package, and potentially for the future of the LCFS Program. Continue Reading

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