California Court of Appeal Agrees Two Activities Constitute One CEQA Project

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

By Christopher W. Garrett, Daniel Brunton, James Erselius, and Derek Galey

In a published decision issued June 12, 2018, County of Ventura v. City of Moorpark, Case No. B282466, the California Court of Appeal rejected part of the County of Ventura and the City of Fillmore’s (Petitioners’) appeal and affirmed the trial court’s decision that a beach restoration project undertaken by Broad Beach Geologic Hazard Abatement District (BBGHAD) and a related settlement agreement with the City of Moorpark (City) were exempt from CEQA review.

In summary, the court determined:

Two separate activities can constitute one “project” under CEQA so long as those activities serve a single purpose, have the same proponents, and are inextricably linked.
Courts do not balance the policies served by statutory exemptions against the goal of environmental protection because the legislature has already determined that the policy benefits of the exemption outweigh the benefits of environmental review.

The trial court determined that the beach restoration project and the related settlement agreement between BBGHAD and City were a single statutorily exempt project. Petitioners appealed on the grounds that even if the beach restoration was exempt, the settlement represented a separate, non-exempt project that was not properly reviewed under CEQA.

GIS Owners in California Must Comply With SF6 Regulation

By Latham & Watkins LLP on January 11, 2019 Posted in California, Energy regulatory

Gas-insulated switchgear owners face easy-to-miss, CARB-enforced emissions requirements.

By JP Brisson, Aron Potash, R. Andrew Westgate, Kimberly D. Farbota, and Christopher C. Antonacci

Since 2011, the California Air Resources Board (CARB) has regulated sulfur hexafluoride (SF6) emissions from gas-insulated switchgears (GIS). CARB’s SF6 Regulation applies to all entities that own GIS, including many entities that do not otherwise emit and report greenhouse gas (GHG) emissions such as wind farms, solar parks, and geothermal plants. Accordingly, some companies may not have realized that they are subject to the SF6 requirements. The SF6 Regulation includes emission rate limits, mandatory operating procedures, and recordkeeping and reporting requirements, as well as providing for monetary penalties in the event of a violation.

Background on SF6 Gases

SF6 is used in GIS equipment to protect electrical power plants and distribution systems by insulating circuits and interrupting electric currents. Since the initial use of SF6 in the 1950s, SF6-containing circuit breakers, transformers, switches, fuses, and other equipment have been used regularly because SF6 is non-flammable, non-corrosive, non-toxic, and an effective arc suppressant, which allows SF6 equipment to have a small footprint and be relatively low maintenance. GIS containing SF6 gases are typically found in most if not all substations and at many power generating facilities, including natural gas plants, wind farms, solar parks, and geothermal plants.

California Supreme Court Clarifies Standard of Review for EIRs and Requirements for Air Quality Impact Analyses

By Latham & Watkins LLP on January 8, 2019 Posted in California, CEQA

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

By Marc T. Campopiano, Christopher W. Garrett, Nathaniel L. Glynn, and Natalie C. Rogers

In a published opinion issued December 24, 2018, Sierra Club v. County of Fresno, Case No. S219783, the California Supreme Court determined that an environmental impact report (EIR) prepared and certified by Fresno County (County) for a development project failed to include certain information and analysis required by CEQA. The California Supreme Court held that the EIR did not adequately discuss potential health consequences that could be caused by a significant increase in pollutants resulting from the development project. In summary, the California Supreme Court determined:

A discussion of potential environmental impacts in an EIR must include sufficient detail to enable those who did not participate in its preparation to understand and to meaningfully consider the issues raised by the proposed project.
The issue of whether a discussion in an EIR is sufficient is a mixed question of law and fact subject to de novo review, though underlying factual determinations in an EIR are subject to a more deferential standard.
An EIR must either make a reasonable effort to correlate a project’s significant air quality impacts to potential health consequences, or explain why providing such an analysis is not feasible.
A lead agency does not impermissibly defer mitigation if it leaves open the possibility of employing better mitigation efforts consistent with improvements in technology.
A lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less-than-significant level, so long as the agency can demonstrate in good faith that the mitigation measures will be at least partially effective in mitigating impacts.

California Appeals Court: Which Conflicting Limitations Period Applies to CEQA Claim

By Latham & Watkins LLP on December 20, 2018 Posted in California, CEQA, Environmental Litigation

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

By Christopher H. Norton, Lucas I. Quass and Megan K. Ampe

In a published opinion issued on October 23, 2018, Save Lafayette Trees v. City of Lafayette, Case No. A154168, the California Court of Appeal upheld the trial court’s decision to grant a demurrer without leave to amend with respect to challenges to the substantive and procedural requirements of applicable planning and zoning laws, but reversed with respect to a challenge brought pursuant to CEQA, concluding that the 180-day statute of limitations applicable to CEQA claims applied to the claim filed by Save Lafayette Trees, Michael Dawson, and David Kosters (together Petitioners) alleging non-compliance with CEQA.

In summary, the Court of Appeal determined:

If two statutes of limitation of equal authority apply to a claim brought pursuant to CEQA — one contained in a general state planning and zoning law and the other contained in a statute specific to CEQA — and the two cannot be reconciled, the more specific limitations period pursuant to CEQA prevails.

Petitioners filed a petition for writ of mandate challenging the City of Lafayette’s (City’s) approval of a letter agreement allowing a public utility company to remove trees without obtaining a permit. City filed a demurrer, claiming that the petition was time-barred under the 90-day limitations period applicable to zoning and planning decisions under state law. The trial court agreed, sustaining the demurrer without leave to amend. Petitioners appealed. Continue Reading

Cutting-Edge Environmental Advice Profiled by the Financial Times

By Latham & Watkins LLP on December 18, 2018 Posted in California

The Newhall Ranch project in Los Angeles County was highlighted for its proactive and innovative strategy to reduce carbon emissions.

A strategy to gain approvals for the development of the Newhall Ranch community in Los Angeles County — built around the project’s net-zero impact on climate change — was recently featured in a report by the Financial Times that profiled proactive approaches to navigating environmental legal challenges.

The featured article was part of the FT’s annual North America Innovative Lawyers report, which ranks and analyzes creative legal work by law firms and in-house executives based on their originality, leadership, and impact. Continue Reading

UPDATE: LCFS Standards for Diesel and Diesel Substitutes to Revert to Schedule Specified in LCFS Regulation January 1, 2019

By Latham & Watkins LLP on December 12, 2018 Posted in Energy regulatory

California Air Resources Board lifts freeze on Low Carbon Fuel Standard.

By Joshua T. Bledsoe and Kimberly D. Farbota

On December 7, 2018, the California Air Resources Board (CARB) issued Regulatory Guidance Document 18-02 which lifts the freeze on Low Carbon Fuel Standard (LCFS) diesel and diesel substitute targets previously enacted by CARB in 2017 in connection with the POET I case. The Guidance becomes effective January 1, 2019 at which point the applicable diesel standards will revert to the schedule specified in the current LCFS Regulation.

The freeze, put in place by CARB to comply with a writ of mandate, will now be lifted following the discharge of the writ. As discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by CARB in 2009. In April 2017, the Court of Appeal ruled that CARB failed to faithfully execute a writ of peremptory mandate requiring the agency to properly address nitrogen oxide (NOx) emissions from biodiesel, and in October 2017, the Superior Court issued a modified writ of mandate to reflect the Court of Appeals holding. In accordance with the modified writ, in November 2017 Continue Reading

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

By Latham & Watkins LLP on December 10, 2018 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.

California Court of Appeal Upholds Noise Analysis in Negative Declaration

By Latham & Watkins LLP on December 7, 2018 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.

California Appeals Court Determines Threshold and Scope for EIR Requirement

By Latham & Watkins LLP on December 7, 2018 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).

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

By Latham & Watkins LLP on November 14, 2018 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.