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Category Archives: Environmental and approvals

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President Signs Executive Order Directing EPA and Army to Review and “Rescind or Revise” Clean Water Rule

Joel Beauvais and Claudia O’Brien have authored an article entitled “Re-Evaluating the Clean Water Rule: The Long Road Ahead.” President Donald Trump, on February 28, signed an executive order (EO) directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to issue a proposed rulemaking for notice and comment to rescind or revise … Continue Reading

Twin Challenges to LCFS Advance in California Courts, With Potential Implications for State’s Overall Climate Stabilization Strategy

By Joshua T. Bledsoe and Max Friedman Two related cases, advancing in parallel, have the potential to upend California’s Low Carbon Fuel Standard (LCFS), whether via full suspension of the LCFS or carving out diesel fuels from the deficit and crediting regime.[1] Both cases involve challenges by POET, LLC (POET), a South Dakota-based ethanol producer, … Continue Reading

Los Angeles Regional Water Quality Control Board Approves Second Extension to Malibu Septic Prohibition Deadlines

By John Heintz, Lucas Quass, and Steven Mach On February 2, 2017, the Los Angeles Regional Water Quality Control Board (the Regional Board) approved a Revised Memorandum of Understanding (the 2017 MOU) between the City of Malibu (the City), the Regional Board, and the State Water Resources Control Board (the State Board) to extend the … Continue Reading

Supreme Court Grants Certiorari in Clean Water Rule Case Jurisdictional Challenge

By Andrea Hogan, Lucas Quass, John Morris and Steven Mach On January 13, 2017, the US Supreme Court granted certiorari for an appeal that will allow the Court to determine the proper jurisdiction for litigation challenging the Clean Water Rule (the Final Rule).[1] The federal Clean Water Act (CWA) provides for original jurisdiction in the … Continue Reading

Environmental Protection Agency Adopts National Limits on Formaldehyde Exposure for Composite Wood Products

By Michael Feeley, Winston Stromberg, Ann Claassen, Lucas I. Quass, John Morris, and Samantha Seikkula On December 12, 2016, EPA published the final Formaldehyde Standards For Composite Wood Products Rule (the Rule) in the Federal Register. The compliance date for most aspects of the Rule is December 12, 2017, with a sell-through provision for wood … Continue Reading

US Fish and Wildlife Service Finalizes Eagle Rule Revision

By Sara Orr, Jennifer Roy and Francesca Bochner On December 14, 2016, the US Fish and Wildlife Service (FWS) finalized its proposed revisions to the Eagle Rule (Final Rule) and released its Record of Decision (ROD). The Final Rule allows companies and others to obtain 30-year incidental take permits under the Bald and Golden Eagle Protection … Continue Reading

US Fish and Wildlife Service Moves Forward With Proposed Eagle Rule Revision

By Sara Orr, Jennifer Roy and Francesca Bochner On July 5, 2016, the public comment period closed for the US Fish and Wildlife Service’s (FWS) proposed revisions to the rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act) and accompanying Draft Programmatic Environmental Impact Statement (PEIS), paving the way for … Continue Reading

California Supreme Court Addresses Subsequent Review Under CEQA; Rejects Lishman “New Project” Test

By Christopher W. Garrett, David Amerikaner, Lucas I. Quass and Samantha Seikkula In an opinion by Justice Kruger, the Supreme Court of California unanimously reversed the Court of Appeal in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, Cal. Supreme Court, Case No. S214061 (September 19, 2016). The Court … Continue Reading

California Court of Appeal Partially Upholds Air Quality Thresholds of Significance Following State Supreme Court Decision

By Marc Campopiano, Lucas I. Quass and Samantha Seikkula In a published decision, following the Supreme Court’s decision in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the First District Court of Appeal upheld California Environmental Quality Act (CEQA) thresholds of significance adopted by the Bay Area Air … Continue Reading

California Proposes Draft Amendments to California Cap-and-Trade Program

By Jean-Philippe Brisson, Josh Bledsoe, Michael Dreibelbis and Andrew Westgate On July 12, 2016, the California Air Resources Board (CARB) proposed amendments to the California Cap-and-Trade Program (17 CCR 95800 et. seq.) for the first time since 2014. The amendments include major substantive changes to compliance requirements as well as new program initiatives such as post-2020 … Continue Reading

US FWS Releases Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan

By Sara Orr, Daniel Brunton, Marc Campopiano and Andrea Hogan On April 15, 2016, the US Fish and Wildlife Service (FWS) issued its Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan (Plan) and Draft Environmental Impact Statement (EIS) proposing a regional approach to Endangered Species Act (ESA) compliance process in response to the growth of … Continue Reading

California Supreme Court Hears Oral Argument in Friends of the College of San Mateo Gardens v. San Mateo County (Case No. S214061)

By Christopher Garrett, Daniel Brunton and Shannon Lankenau On May 4, 2016, the California Supreme Court heard oral argument in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Case No. S214061), which addresses the standard of review that applies when a lead agency decides that changes or additions … Continue Reading

6 Key Takeaways from the FWS’s Proposed Update to the Eagle Act Rules

By Sara Orr, Jennifer Roy and Francesca Bochner On May 2, 2016, the US Fish & Wildlife Service (FWS) announced its second attempt to revise its rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act). The rule would extend the maximum eagle take permit term from 5 to 30 … Continue Reading

Sixth Circuit Determines It Has Jurisdiction to Hear Challenges to the Clean Water Rule

By Christopher Garrett, Andrea Hogan, Daniel Brunton, and Daniel Aleshire On February 22, 2016, in a 2-1 decision, the US Court of Appeals for the Sixth Circuit determined it has jurisdiction over the numerous legal challenges to the Clean Water Rule (the Final Rule), thus siding with the position of the agencies that promulgated the … Continue Reading

California Governor’s Office Releases Updated CEQA Guidelines Proposal on SB 743 Implementation

By Chris Garrett and Ana De Santiago Ayon On January 20, 2016, the Governor’s Office of Planning and Research (OPR) released a new draft proposal for implementing Senate Bill 743 (Steinberg 2013) (SB 743), which would require traffic analysis to be based on vehicle miles traveled (VMT) instead of auto delay, commonly measured by Level … Continue Reading

Low Carbon Fuel Standard Challenged (Again) in California State Court

By Joshua Bledsoe and Max Friedman After a lengthy process of policy review and revision, the California Air Resources Board (ARB) re-adopted the state’s Low Carbon Fuel Standard (LCFS) on September 25, 2015. The LCFS is expected to contribute approximately 20% of the statewide greenhouse gas (GHG) reductions required by 2020 under Assembly Bill 32. … Continue Reading

California Supreme Court Charts New Course For Climate Change Analysis

By Christopher Garrett, James Arnone and Joshua Bledsoe, On Monday November 30, 2015, the California Supreme Court overturned the Department of Fish and Wildlife’s (the Department) Environmental Impact Report (EIR) for the Department’s approvals of the Newhall Ranch project. The Newhall Ranch project includes plans to develop almost 12,000 acres along the Santa Clara River … Continue Reading

Sixth Circuit Stays Obama Administration’s New Clean Water Rule Nationwide

By Paul Singarella, Chris Garrett, Andrea Hogan, Daniel Brunton, John Heintz, Taiga Takahashi, and Lucas Quass On October 9, 2015, the US Court of Appeals for the Sixth Circuit stayed the implementation of the Clean Water Rule (the Final Rule) nationwide. The Final Rule defines “waters of the United States” (WOTUS), a threshold term that determines … Continue Reading

California Supreme Court Hears Oral Argument in Case Challenging 2010 Bay Area Air Quality Management District Air Quality Thresholds

By Chris Garrett, Shivaun Cooney and Shannon Lankenau On October 7, 2015, the California Supreme Court heard oral argument in California Building Industry Association v. Bay Area Air Quality Management District (Supreme Court Case No. S213478), a case which calls into question the “continued vitality” of a line of appellate cases holding that the “reverse … Continue Reading

Obama Administration Releases Infrastructure Permitting Guidance

By Marc Campopiano, Andrea Hogan and Joshua Marnitz On September 22, 2015, the White House, through the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ), issued guidance to the heads of certain federal departments and agencies[1] (the Agencies) establishing metrics for the permitting and environmental review of infrastructure projects in … Continue Reading

Court Limits Migratory Bird Treaty Act Applicability to Incidental Take

By Sara Orr and Jennifer Roy On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the unintentional take of migratory birds. Reversing a district court decision and … Continue Reading

RETI 2.0: CEC and CPUC Plan for New Renewable Energy Transmission Initiative to Meet California’s Increasing Clean Energy Commitments

By Joshua T. Bledsoe, Marc T. Campopiano, and Max Friedman As California begins to turn the page on the first chapter of its efforts to combat climate change through AB 32 and to prepare for greater emissions reductions over the coming decades, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are considering … Continue Reading

Federal Judge Grants Preliminary Injunction Blocking the Obama Administration’s New Clean Water Rule From Taking Effect

By Paul Singarella, Chris Garrett, Andrea Hogan, Daniel Brunton, Garrett Jansma, John Heintz, Danny Aleshire and Lucas Quass On August 27, 2015, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Clean Water Rule (the Final Rule). The Final Rule defines Waters of the United States … Continue Reading

California Energy Commission Report Projects Local Electric Reliability Deficits By 2021, Potentially Triggering The Need For New Natural Gas Power Generation

By Michael Carroll, Marc Campopiano and Max Friedman The California Energy Commission (CEC) has released an August 2015 report projecting local reliability shortfalls in the Los Angeles basin planning area as early as 2021. The deficits may require new natural gas power generation to maintain grid reliability. This finding is part of the Integrated Energy … Continue Reading
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