Latham's Clean Energy Law Report

California Court of Appeal Dismisses Time-Barred Challenge to Development Phase

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

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

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, and Christopher Adam Martinez

In an unpublished opinion issued October 22, 2018, Tennis Club Preservation Society v. City of Palm Springs, Case No. E068896, the California Court of Appeal affirmed the trial court’s decision dismissing the Tennis Club Preservation Society’s (Petitioner’s) petition seeking to enjoin the City of Palm Springs (City) from issuing building and other permits for Phase III of a proposed development (Project) by real parties in interest John Wessman and Baristo Group, LLC (collectively, Developer). In summary, the court determined:

  • The doctrine of laches prevents the Petitioner’s claim that the Phase III plan violates the mitigated negative declaration’s (MND’s) mitigation measures because the Phase III plan conforms with the plans approved 15 years prior.
  • The Project is not a phased development for the purposes of a local ordinance such that planning commission review and approval would be required prior to further development.

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California Court of Appeal Upholds Noise Analysis in Negative Declaration

Posted in California, CEQA, Environmental Litigation

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

By Christopher W. Garrett, Megan K. Ampe, James A. Erselius

In a published opinion issued May 1, 2018, Jensen v. City of Santa Rosa, Case. No. SCV255347, the California Court of Appeal affirmed the trial court’s judgment upholding the City of Santa Rosa’s (City’s) negative declaration finding no significant environmental effects. In summary the court found:

  • The presentation of a non-expert analysis using a vague and difficult-to-grasp methodology cannot be regarded as a legitimate factual or scientific basis and will not satisfy the requirements of substantial evidence to support a fair argument.

The petitioners, two neighbors of the proposed project (Petitioners), had filed an unsuccessful petition for writ of administrative mandate seeking to overturn City’s negative declaration and to compel City to perform an environmental impact report (EIR). Petitioners had challenged City’s decision under CEQA alleging that, among other things, noise impacts from the Project were sufficient to require the preparation of an EIR.

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California Appeals Court Determines Threshold and Scope for EIR Requirement

Posted in California, CEQA, Environmental and approvals, Environmental Regulation, Finance and project development, Permitting

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

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, and Robert C. Hull

In an unpublished opinion issued May 31, 2018, Save Adelaida v. County of San Luis Obispo, Case No. B279285, the California Court of Appeal partially affirmed the trial court’s decision and held that an environmental impact report (EIR) was required for real party in interest Willow Creek Newco, LLC’s (Willow Creek) application for a minor use permit and that the EIR must analyze wastewater. In summary, the court determined:

  • A low threshold for requiring an EIR exists when a fair argument can be made that a project may have a significant environmental impact, even when contrary evidence exists.
  • An EIR is necessary when evidence regarding a project’s impact contradicts the contents of a mitigated negative declaration (MND).

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Webcast – California’s 100% Zero Carbon Future: How SB 100 and EO B-55-18 Will Impact Businesses and Projects

Posted in California, Energy regulatory, Environmental Regulation

Latham lawyers discuss the business implications of the new legislation.

By Tommy P. Beaudreau, Marc T. Campopiano, Michael J. Gergen, Joshua T. Bledsoe, and Jennifer K. Roy

Senate Bill 100, signed into law by Governor Jerry Brown on September 10, 2018, aims to raise California’s already ambitious renewable energy standards by 2030, with an ultimate mandate of 100% clean energy by 2045. On the same day, Brown issued Executive Order B-55-18, which sets a target of climate neutrality for the state by 2045. These developments, as well as other clean energy legislation recently signed into law, represent a major step in California’s long history as a national and global leader on clean energy and climate policy, and will have large-scale implications for electricity supply and demand and electricity infrastructure, wholesale electricity markets, land use development, and more.

Lawyers from Latham & Watkins’ Environment, Land & Resources and Finance Departments discuss the business implications of SB 100 and EO B-55-18 as well as other clean energy laws, including:

  • Energy supply and demand and electricity infrastructure
  • Wholesale electricity markets
  • Carbon markets and California climate programs
  • Land use development and transportation in a low-carbon economy

View the webcast or download the presentation slides on-demand at any time by registering here.

7 Takeaways From California’s Extension of the Low Carbon Fuel Standard

Posted in Energy regulatory, Finance and project development, Uncategorized

By Joshua T. Bledsoe and Kimberly D. Farbota

On September 27, 2018, the California Air Resources Board (CARB) passed Resolution 18-34, extending the Low Carbon Fuel Standard (LCFS) Program to 2030 and making significant changes to the design and implementation of the Program. This blog outlines seven takeaways for market participants and stakeholders.

1. CARB Appears Committed to the LCFS

While California’s Cap-and-Trade Program attracts the lion’s share of attention in the trade press, CARB may view the LCFS as an equally important greenhouse gas (GHG) emissions reduction measure. According to CARB, the Cap-and-Trade Program’s traditional role in the state’s overarching scheme has been to backstop GHG reductions, not drive them. Under this interpretation, the Cap-and-Trade Program has acted as an insurance policy guaranteeing the state’s GHG emissions reduction trajectory via operation of the program’s hard cap in the event that other, more direct emissions reduction measures fail to achieve expected reductions (e.g., the Renewables Portfolio Standard, Advanced Clean Car Standards, Title 24 Energy Efficiency Standards, the LCFS, etc.).

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California Court of Appeal Overturns Specific Plan EIR for Inadequate Air Quality Impact Mitigation

Posted in California, CEQA, Environmental Regulation

By Christopher H. Norton, Lucas I. Quass, and Derek Galey

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

In an unpublished opinion issued July 10, 2018, Sierra Club v. County of Kern, Case No. F071133, the California Court of Appeal reversed the trial court’s decision and remanded for the issuance of a new writ of mandate directing the County of Kern (County) to address the improper deferral of mitigation measures for air quality impacts in the Kern River Valley Specific Plan’s (Specific Plan) Environmental Impact Report (EIR). In summary, the court determined:

  • The EIR’s analysis of the long-term significance of the Specific Plan’s greenhouse gas emissions was adequate at its time of release in 2011.
  • The EIR’s approach to mitigating greenhouse gas emissions was not a prejudicial abuse of discretion.
  • CEQA does not require greater than a 1:1 mitigation ratio for the amount of farmland to be placed under an agricultural conservation easement or similar program.
  • County violated CEQA by deferring the formulation of air quality mitigation measures without firmly committing to specific performance standards.

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California Court of Appeal Rejects City’s MND in Historic District Due to Aesthetic and Traffic Impacts

Posted in California, CEQA, Environmental Litigation

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

By Winston P. Stromberg, Lucas Quass and Christopher Adam Martinez

In an opinion published on August 9, 2018, Protect Niles v. City of Fremont, Case No. A151645, the First Appellate District of the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate ordering the City of Fremont (the City) to overturn a Mitigated Negative Declaration (MND) and prepare an Environmental Impact Report (EIR) for an 85-unit residential and retail development in a historical district (the Project).

In summary, the court determined:

  • A project’s visual impact on an officially designated historical district is appropriate to review as a potential aesthetic impact under CEQA.
  • The City’s Historical Architectural Review Board members’ collective opinions about the compatibility of the Project with the Niles Historical Overlay District are substantial evidence of the Project’s potentially significant aesthetic impacts.
  • Residents’ personal observations of traffic conditions where they live and commute may constitute substantial evidence, even if residents’ accounts contradict the conclusions of a professional traffic study.

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Viewpoints Video Examines California’s Cap-and-Trade Program

Posted in California, Environmental Regulation

Harvard professor Robert Stavins joins Latham partner Bob Wyman to review key climate change mitigation policies.

California’s climate change mitigation program is widely viewed as one of the most comprehensive of its kind — encompassing a cap-and-trade component and a series of complementary measures with specific performance targets for important sectors such as motor vehicles, transportation fuels, power plants, and emissions related to land use decisions.

In this Viewpoints video, Latham partner Bob Wyman, a leader in the firm’s Environment, Land & Resources Department, discusses unique aspects of the California program with Harvard University professor Robert Stavins, the A.J. Meyer Professor of Energy & Economic Development at the John F. Kennedy School of Government.

The two veterans of climate change policy explore the purpose and design of climate change programs in California and globally that deliver environmental performance at lower cost, and they explain key terms such as a price ceiling, “speed bumps,” and the banking of carbon emissions allowances.

Latham Viewpoints is a video series spotlighting hot topics in the practice and business of law.

California Appeals Court: Petitioner Must Show Prejudice for Brown Act Violation

Posted in CEQA, Environmental and approvals, Permitting

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

By Christopher W. Garrett, Daniel P. Brunton, Robert C. Hull, and Natalie C. Rogers

In an unpublished opinion issued January 31, 2018, Citizens for Open & Public Participation v. City of Montebello, Case No. B277060, the California Court of Appeal affirmed the trial court’s denial of a petition for writ of mandate, upholding the City of Montebello’s (City) approval of a residential development project (Project). In summary, the court determined:

  • The trial court properly struck portions of the plaintiff’s opening brief that were inconsistent with the petition, in which the plaintiff had filed no statement of issues, and when the local rules required briefing to be consistent with the statement of issues.
  • A petitioner challenging an action as violating the Brown Act must show prejudice.
  • A city’s determination that a project is consistent with its general plan carries a strong presumption of regularity that a project opponent can overcome only by showing the city abused its discretion.

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California Court of Appeal Ruling Exempts Parking Requirements From CEQA Review

Posted in California, CEQA, Environmental and approvals

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

By Christopher W. Garrett, Daniel P. Brunton, Natalie C. Rogers, and Roopika Subramanian

In a published opinion issued February 28, 2018, Covina Residents for Responsible Development v. City of Covina, Case No. B279590, the Court of Appeal affirmed the trial court’s judgment and upheld the City of Covina’s (the City) approval of a 68-unit mixed-use infill project (Project). In summary, the court determined:

  • An EIR must address secondary parking impacts caused by traffic congestion, but parking impacts, in and of themselves, are exempt from CEQA review.
  • An agency is permitted to tier from a specific plan EIR if (1) the proposed action falls under an exemption, or (2) potential project impacts have been adequately analyzed and mitigated in the specific plan EIR.
  • In determining whether to approve a tentative map for a project, local agencies must make findings showing the proposed map’s compatibility with objectives, policies, and programs in the specific plan, but need not show perfect conformity.

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