California Environmental Law Blog Launches New Responsive Design and Enhanced Reader Features

Dear California Environmental Law Blog readers. We launched this blog in 2011 to help us keep you informed about developing environmental stories that impact the California business community. While our commitment to keep you informed hasn’t changed, technology has. More than three years ago, we were still operating in a desktop- and RSS-dominated world. Today, more and more of you are reading our posts on tablets and smartphones. As readers ourselves, we understand your need for news on-the-go and at your convenience.

So we’re very excited to announce to you today a completely new – and improved – blog design, along with new feature sets we think will enhance your content experience.

  • First, California Environmental Law Blog now uses a responsive design format. So no matter where – or on what device – you visit us, you can be assured of a consistent, clean and crisp reader experience.
  • Second, we’ve added new social sharing features to our posts. With easy-to-read social icons, sharing California Environmental Law Blog posts with your social networks is now a snap.
  • Third, we’ve improved our content subscription options. We’ve expanded the number of RSS subscription feeds, optimized the look and feel of our email subscription service, and added links to our Twitter feed as an alternative content consumption option.

We hope you enjoy the enhanced readership experience made possible by the new design. Thanks for keeping us on your list of must-read California environmental news sites!

Governor Signs Two New CEQA Bills

Governor Brown has signed two new bills amending the California Environmental Quality Act (CEQA).  AB 52 establishes new consultation procedures with California Native American tribes, and provides that an adverse change to a tribal cultural resource is a significant impact under CEQA.  AB 1104 extends an existing CEQA exemption for certain pipeline projects to biogas pipelines. 

AB 52

AB 52 is intended to provide greater protection for Native American sacred sites.  The new law provides that a project that may cause a substantial adverse change to a tribal cultural resource is a project that may have a significant effect on the environment.  The implication of this is that such projects must be subject to either a mitigated negative declaration (if mitigation measures can reduce the impacts to less than significant) or an environmental impact report (EIR). 

The law allows California Native American tribes to provide written notice to lead agencies identifying geographic areas that are traditionally and culturally affiliated with the tribe.  A CEQA lead agency is then required to provide notice to such tribes of projects proposed in those geographic areas, and required to consult with such tribes if the tribe requests consultation on a particular project in that geographic area. 

During the consultation, the parties may propose mitigation measures to avoid or lessen any potentially significant impacts to a tribal cultural resource.  Any mitigation measures agreed to during consultation shall be recommended for inclusion in the environmental document and be fully enforceable.  The law also includes provisions to maintain the confidentiality of cultural information provided by the tribes.

The law provides examples of mitigation measures that should be considered to minimize impacts to tribal cultural resources, if the consultation process does not occur or measures cannot be agreed to.  Among the examples of mitigation measures are avoidance and preservation in place, treating the resource with culturally appropriate dignity, and permanent conservation easements.  The new law stops short of requiring that these mitigation measures be adopted.

AB 1104

AB 1104 expands an existing exemption under CEQA for biogas pipelines located in four select counties in the San Joaquin Valley.  Pursuant to Public Resources Code section 21080.23, CEQA does not apply to the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline, as defined, if certain conditions are met.  Among the conditions are that the project be less than eight miles in length, actual construction and excavation activities do not exceed more than one mile at a time, the project is within an existing right-of-way, and will comply with local agency permit requirements.  The existing exemption also requires notification to affected public agencies and private property owners. 

AB 52 adds Public Resources Code section 21080.23.5 to CEQA, which defines “pipeline” to include a pipeline located in Fresno, Kern, Kings, or Tulare County that is used to transport biogas that is derived from anaerobic digestion of dairy animal waste.

 By Kristen T. Castaños (ktcastaños@stoel.com, (916) 319-4674).

Is It Historical Under CEQA? Court Confirms Substantial Evidence Remains the Standard

Citizens for the Restoration of L Street v. City of Fresno, et al., No. F066498,(Cal. Ct. App. 5th Dist., August 28, 2014)

In a two-part opinion, the Fifth District Court of Appeal affirmed the trial court’s judgment and writ of mandate, finding that the City of Fresno’s Municipal Code did not delegate authority to its Historic Preservation Commission (HPC) to approve CEQA documents, including the Mitigated Negative Declaration (MND) at issue. The Fifth District also upheld the trial court’s holding that the substantial evidence standard, not the fair argument standard, governs review of decisions regarding designation of historic resources.

The Project, a small 1.29 acre residential infill development in downtown Fresno, required demolition of two homes—one of which was previously designated a “Heritage Property” under the Municipal Code—necessitating a demolition permit from the HPC. In concert with its approval of the demolition permits, the HPC also reviewed and approved the Project MND, concluding that demolition of the two homes would not cause a substantial adverse change in the significance of an historical resource. Citizens for the Restoration of L Street (“Citizens”), a local association, appealed the HPC’s adoption of the MND. The City Council heard Citizens’ appeal, and passed a motion: (1) upholding the HPC’s finding that neither of the two homes was an historical resource under CEQA; (2) electing not to exercise its discretion to designate the homes historical, or the Project area an historical district; and (3) upholding the HPC’s approval of the CEQA findings and MND. Shortly thereafter, both homes were demolished.

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Drilling Bill Fails in Assembly

SB 1096 (Jackson), which sought to foreclose the possibility of oil drilling in state waters from wells that could be drilled at Vandenberg Air Force Base, was defeated in the Assembly on Tuesday.  Pursuant to the Legislature’s summary of the bill, the California Coastal Sanctuary Act of 1994 authorizes the California State Lands Commission (SLC) to enter into a lease for extraction of oil or gas from state-owned tide and submerged lands in the California Coastal Sanctuary, but only if the SLC determines that the oil or gas deposits are being drained by means of producing wells upon adjacent federal lands and the lease in is the best interest of the state.  The bill would have repealed that authorization. 

Co-authored by Michael N. Mills and Kimberly J. Hellwig

SB-1281 Amended to Remove Requirement for Oil, Gas Drillers to Use Recycled Water

SB-1281 faced strong industry opposition due to the bill’s requirement that oil and gas drilling companies use recycled water for new operations during drought emergencies.  Industry representatives have stated that such requirements would violate the California constitution and other laws.  In response, the bill’s author, Senator Fran Pavley, last week agreed to amendments, which removed the requirement for use of recycled water.  As currently drafted, the bill requires reporting, rather than a restriction, on water use.  In summary, the bill would require:

  • the use, or treatment and use, of water produced through oil field activities and recycled water to the extent feasible
  • operators to submit quarterly statement to the State Oil and Gas Supervisor to include the source and amount of fluid or gas injected into each well, and the source and amount of water to generate such fluid or gas
  • disclosures of additional information related to the treatment of water and use of treated or recycled water

 Co-authored by Michael N. Mills and Kimberly J. Hellwig

Updated Status of Oil and Gas-related Bills in California’s Legislature

The end of the 2013-2014 legislative session is coming to a close.  Below are key deadlines for the Legislature and Governor:

  • August 15 was the last day for fiscal committees to meet and report bills to the Floor.
  • August 18-31 Floor Session only – no committees, other than conference committees and Rules committee, may meet for any purpose.
  • August 22 is the last day to amend bills on the Floor.
  • August 31 is the last day for each house to pass bills.
  • All bills passed by the Legislature by September 1, 2014 must be signed or vetoed by the Governor on or before September 30, 2014.

Below you will find summaries of each piece of oil and gas-related legislation, with an updated status for each bill. Stoel Rives has a dedicated team of professionals that will continue to track these bills.

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Full Steam Ahead for Eminent Domain Actions after High Speed Rail Authority Negotiations End in Impasse

The State Public Works Board (the “Board”) adopted four Resolutions of Necessity approving the High-Speed Rail Authority’s (the “Authority”) use of eminent domain for public necessity to acquire four parcels in Fresno and Madera County for the Initial Operating Segment of the High-Speed Rail Project (the “Project”).  (Click HERE for map of Initial Operating Segment.)  In addition, the Board approved the Authority’s selection of 158 parcels in Fresno and Kings County for future acquisition for the Project.  The Authority has already commenced work for the first segment in Fresno County, demolishing buildings and clearing parcels within the alignment.  However, some of the Authority’s negotiations with private property owners along the alignment have been unsuccessful and resulted in the Authority’s request to the Board to authorize its use of eminent domain to acquire these properties. 

Eminent domain or condemnation provides a remedy for government agencies to acquire private property for public works and provides “just compensation” to the private owner for their condemned property.  If the parties cannot agree to the amount, a judge determines what the government must pay.  “Just compensation” encompasses the value of the property as well as any related damages caused by the loss of the property.

For more information regarding this update or the Authority’s planned condemnation proceedings for the Project’s right-of-way, please contact Mike Mills at mnmills@stoel.com or Juliet Cho at jhcho@stoel.com.

Co-authored by Michael N. Mills and Juliet H. Cho.

SB 1281 (Pavley): Oil & Gas Production; Water Use Reporting

SB-1281 was amended in the Assembly Committee on Appropriations on August 4, 2014.  A scheduled hearing on August 6 was postponed and held on suspense under Joint Rule 62(a).  As of this writing, a hearing has not yet been rescheduled. 

The following provides a snapshot of the proposed text of SB-1281:

  • Requires the use, or treatment and use, of water produced through oil field activities and recycled water to the extent feasible;
  • Operators required to submit quarterly statement to the State Oil and Gas Supervisor to include the source and amount of fluid or gas injected into each well, and the source and amount of water to generate such fluid or gas;
  • Requires disclosures of additional information related to the treatment of water and use of treated or recycled water; and
  • Prohibits use of water from a groundwater basin or subbasin designated as high priority if the use would compromise existing use for domestic or irrigation purposes.

Co-authored by Michael N. Mills, Kimberly J. Hellwig, and Juliet Cho

Supreme Court Confirms CEQA Exemption for Voter-Sponsored Initiatives

In Tuolumne Jobs & Small Business Alliance v. Superior Court, No. S207173 (Supreme Court, Aug. 7, 2014), the California Supreme Court ruled that the California Environmental Quality Act (CEQA) does not apply when a lead agency receives a voter initiative petition that qualifies under the Elections Code and the lead agency chooses to adopt the initiative without putting the decision to the voters.  In doing so, the Court reversed the Court of Appeal for the Fifth Appellate District and kick-started speculation as to how wide-reaching the impacts of its decision may be. 

Background

In 2007, Wal-Mart sought to expand an existing Wal-Mart store to a Wal-Mart Supercenter in the City of Sonora and submitted a petition supported by the signatures of more than 20 percent of the city’s 2,489 registered voters.  The City Council then chose not to submit the measure to an election, and instead, adopted the initiative as an ordinance on its own authority under California Elections Code Section 9214(a). Although an EIR was prepared in advance of the adoption of the petition, it was never certified by the City Council.

Under Section 9214[1], when a project applicant submits a voter-sponsored initiative petition to the legislative body of a public agency, signed by at least 15 percent of registered voters, with a request that the ordinance be immediately submitted to a special vote, that body must either: (a) adopt the ordinance, without alteration; (b) immediately order a special election; or (c) order a report pursuant to Elections Code section 9212, which allows for abbreviated environmental review.

In 2004, the Court of Appeal for the Fourth Appellate District concluded that a lead agency’s approval of a voter initiative was exempt from CEQA.  (Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961.)  Notwithstanding that caselaw, the Tuolumne Jobs & Small Business Alliance (Tuolumne Alliance) filed a petition for writ of mandate alleging that the City violated CEQA by adopting the ordinance before conducting a complete CEQA review.  The trial court sustained a demurrer filed by Wal-Mart and the City, and in turn, Tuolumne Alliance sought a writ from the Court of Appeal for the Fifth Appellate District.  The Court of Appeal disagreed with the City of San Juan Capistrano decision, and held that the City’s adoption of the initiative was a discretionary act that required CEQA review.

In light of the conflicting holdings from the two Courts of Appeal, the California Supreme Court granted certiorari on two questions, but its decision focused on this one question:  “(1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter initiative pursuant to Elections Code section 9214, subdivision (a)?”

After oral argument before all seven Supreme Court justices (for a summary of the oral argument, see our blog post here), the Court issued its decision, unanimously reversing the lower court’s judgment.

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Court Signals Green to $8.6bn California High-Speed Rail Bond Issuance

The Third District Court of Appeal reversed a Sacramento Superior Court Judge’s ruling that prohibited the High Speed Rail Authority (HSRA) from selling bonds under  Proposition 1A to construct the High Speed Rail Project (the Project) and ordered the HSRA to draft a new funding plan for the construction and operation of the Project.  (See California High-Speed Rail Authority v. The Superior Court of Sacramento County, No. C075668 (Cal. Ct. App. 3d Dist., July 31, 2014).)

Proposition 1A, originally approved by voters in 2008, authorized the HSRA to issue and sell general obligations bonds (upon appropriation by the Legislature), to begin construction of the Project.  Pursuant to Proposition 1A, the HSRA prepared, published, adopted, and submitted a preliminary funding plan to the Legislature that was also made available for public review and comment.  The plan included the total anticipated federal, state, local, and other funds the HSRA intended to access to fund the construction and operations of the system.  A final funding plan must also be approved by the Director of the Department of Finance before committing any bond proceeds, but such a plan has not yet been prepared by the HSRA.

In 2013, the HSRA requested, and the Legislature appropriated, the issuance of $8.6 billion in general obligation bonds for the Project.  In order to preclude any future lawsuits, the HSRA filed a validation action in Sacramento Superior Court to obtain a judgment validating the bonds to be sold on the capital markets.  Subsequently, several real-parties-in-interest filed a responsive pleading requesting that the court issue a writ of mandate directing the HSRA to rescind the preliminary funding plan for failure to comply with statutory requirements.  On November 25, 2013, the trial court issued a writ of mandate directing the HSRA to rescind its approval of the preliminary funding plan for failing to comply with the statutory requirements.  On the same day, Judge Kenny issued a ruling denying the request for a validation judgment on grounds that the Legislature’s determination to issue the bonds was not supported by evidence in the record.

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