On February 22, 2018, California Attorney General Xavier Becerra announced that the Department of Justice is opening an environmental justice office within the Environment Section: the Bureau of Environmental Justice (“Bureau”).  “The Bureau’s mission will be to protect people and communities that endure a disproportionate share of environmental pollution and public health hazards.”  Using existing federal and state statutes, the Bureau will accomplish its mission through targeted oversight, investigation, and enforcement actions.

According to the press release, the Bureau’s oversight and enforcement work will focus on:

  • Ensuring compliance with the California Environmental Quality Act (“CEQA”) and land use planning laws;
  • Remediating contaminated drinking water;
  • Eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
  • Challenging the federal government’s actions that repeal or reduce public health and environmental protections; and
  • Penalizing and preventing illegal discharges to air and water from facilities located in communities already burdened disproportionately with pollution.

Continue Reading At the Intersection of Pollution and Poverty, California Attorney General Establishes Bureau of Environmental Justice, and Industry Should Get Prepared

Okay, maybe slightly longer than 60 seconds.  The point being, though, that CEQA case updates really should not read like law school case briefs.  Long discussion of the lower court’s findings?  No thank you.  Point/counterpoint for each and every argument made by petitioners?  No one has time for that.  Get in, get out and move on with some useful knowledge — that’s the goal for this update on CEQA cases in the first quarter of 2017.

If we had to pick a theme for first quarter CEQA cases, it would be simple: don’t stick your head in the sand, do explain yourself, and all will be fine.  Why this theme?  Continue reading and find out in these case summaries.
Continue Reading First Quarter CEQA Update in Under 60 Seconds

With Senate Bill 1262 (“SB 1262”), California’s Sustainable Groundwater Management Act (“SGMA”) has become firmly rooted into the State’s water supply planning laws. Specifically, SB 1262 amends the Water Supply Assessment statute (commonly referred to as “SB 610”) and the Written Verification statute (commonly referred to as “SB 221”).

Background – SB 610 & SB 221

As way of background, SB 610 and SB 221 operate to help cities and counties make informed land use decisions by providing the local governments with information on water supply availability. SB 610 and SB 221 are companion laws that promote more collaborative planning between local water suppliers and cities and counties.  Both statutes require detailed information regarding water availability to be provided to the city and county decision-makers prior to approval of specified large development projects.

Under SB 610, Water Supply Assessments must be provided to local governments for certain projects subject to the California Environmental Quality Act (“CEQA”). The Water Supply Assessment must analyze whether projected water supplies are sufficient to meet the projected water demand of the proposed development project.  Similarly, under SB 221, approval by a city or county of certain subdivisions requires an affirmative Written Verification of sufficient water supply.
Continue Reading With SB 1262, SGMA Becomes Further Entrenched in California’s Water Supply Planning Laws

On Thursday, December 10, environmental organizations filed a complaint against Kern County in California Superior Court alleging that the County violated the California Environmental Quality Act (“CEQA”) by preparing a “grossly inadequate” Environmental Impact Report (“EIR”) for its new oil and gas rules.  The Sierra Club, Center for Biological Diversity, and the Natural Resources Defense Council (jointly “the Sierra Club”), along with several other local organizations, take issue with the programmatic approach of the EIR, and urge a well-by-well environmental analysis.  This lawsuit comes as no surprise to the County.  Environmental groups have a long history of opposing oil and gas development in Kern County, which produces over 70% of all the oil in California.

This lawsuit comes in reaction to a Kern County zoning ordinance amendment which harnessed broad local support.  On November 9, 2015, the Kern County Board of Supervisors unanimously approved amendments to Title 19 of the Kern County Zoning Ordinance which provides a streamline permitting process for oil and gas operations.  Notably, the new ordinance encourages oil and gas producers to work with surface owners to agree on a development plan, promoting cooperation and transparency.  The amendments also required the County to conduct an extensive environmental analysis pursuant to CEQA.  The Board of Supervisors certified the Final EIR after holding multiple public Scoping Meetings and reviewing various mitigation measures.Continue Reading Environmental Challenge Blasts Kern County Oil and Gas Rules

My colleague, Michael Sherman, posted yesterday about two issues decided in the California Supreme Court’s decision in Center for Biological Diversity v. California Department of Fish and Wildlife.  Today, I’ll address the part of the decision that involves the evaluation of the Newhall Ranch project’s greenhouse gas emissions.  In short, the Court just made it a lot harder to evaluate greenhouse gas emissions under CEQA for any large land use project.  There is likely a solution for some situations where the emissions primarily involve the consumption of transportation fuel – the AB 32 Cap and Trade Program was recently expanded to cover those fuels.  This potential solution is hinted at by the Court.  I’ll get to that at the bottom of the post.  But first I’ll discuss the decision and why it’s a problem.

For some background, the Newhall Ranch project would consist of over 20,000 residential units in Southern California.  The Environmental Impact Report (EIR) for this project was certified back in 2010.  The resulting litigation has since been making its way through the courts.  The California Department of Fish and Wildlife used an approach to analyze greenhouse gas emissions similar to what other lead agencies have been using recently.  They relied on the AB 32 Scoping Plan to set a threshold of significance.  AB 32 requires statewide greenhouse gas emissions to return to 1990 levels by 2020.  In the Scoping Plan, the California Air Resources Board determined that this would require a 29% reduction in statewide emissions from a business-as-usual approach — an approach with no conservation or regulatory efforts beyond what was in place when the forecast was made.  Lead agencies have used this standard to find that proposed projects that would reduce their greenhouse gas emissions by at least 29% over a project with a business-as-usual approach would, therefore, have a less than significant impact for greenhouse gas emissions.
Continue Reading How to Fix Your GHG Analysis After the California Supreme Court’s Newhall Ranch Decision

On Friday, November 6, three environmental organizations filed suit against the City of Los Angeles in California Superior Court for the County of Los Angeles. The three groups, Youth for Environmental Justice, the Center for Biological Diversity and the South Central Youth Leadership Coalition, allege that the “City of Los Angeles has for years employed a pattern or practice of rubber stamping oil-drilling applications in violation of the California Environmental Quality Act (“CEQA”).” Verified Complaint and Petition for Writ of Mandate, at 2. By categorically exempting oil-drilling projects from CEQA, the Complaint states that L.A. has permitted a disproportionately high number of drilling operations in low-income communities and neighborhoods where people of color reside. According to the environmental groups, this is a racially discriminatory practice because the City of L.A. exhibits a pattern of “developing and approving weaker conditions for drill sites in communities where a vast majority of the residents identify as Latino and black.” Id. at 26.

The Complaint focuses especially on the risks of drilling operations on children. “Because  they breathe at a higher rate, and drink more water and consume more food in proportion to their body size, children receive higher doses of toxins and contaminants than adults.” Id. at 12-13. Further, in contrast to the public outcry over fracking, the environmental groups note that the emissions from oil and gas development in L.A. are associated with “traditional drilling,” not necessarily hydraulic fracturing. The Complaint also addresses the alleged risks of acidizing and gravel packing techniques, though.
Continue Reading Environmental Justice Lawsuit Accuses L.A. of Discriminatory Oil Permitting

Today, July 30, the Center for Biological Diversity (“CBD”) filed a complaint in Sacramento County Superior Court against the Division of Oil, Gas & Geothermal Resources (“DOGGR”). CBD claims, among other things, that DOGGR failed to comply with Senate Bill 4 (“SB 4”) by releasing its Final EIR regarding oil and gas well stimulation treatment prior to the release of a state-mandated Independent Study.

This lawsuit strikes us as more of a shout out to the Legislature and the Governor to highlight CBD’s ongoing disappointment with SB 4, more than anything else. CBD mistakenly construes SB 4 to require DOGGR to analyze and incorporate the Independent Study’s findings into its Final EIR, when no such requirement is found in the law. Indeed, by its terms, SB 4 only requires DOGGR to comply with the following requirements relating to the EIR:

  • The EIR shall be certified by the division as the lead agency, no later than July 1, 2015.
  • The EIR shall address the issue of activities that may be conducted as defined in Section 3157 and that may occur at oil wells in the state existing prior to, and after, the effective date of this section.
  • The EIR shall not conflict with an EIR conducted by a local lead agency that is certified on or before July 1, 2015.

(Pub. Resources Code, § 3161.) The Legislature, not the Sacramento County Superior Court, is the proper body to which this additional request should be made, as there is currently no law mandating it.
Continue Reading Activists ask Court to Scrap EIR and Stop Fracking

In Berkeley Hillside Preservation v. City of Berkeley, No. S201116 (Cal. Mar. 2, 2015) (slip op), the California Supreme Court overturned an appeals court ruling that banned developers from using an exemption under the California Environmental Quality Act (“CEQA”) to avoid undertaking an environmental impact report (“EIR”) for the construction of a proposed two-story

In Saltonstall, et al. v. City of Sacramento, No. C077772 (Cal. Ct. App. 3rd Dist., Feb. 18, 2015), the Third Appellate District affirmed the judgment of the Superior Court in holding that the City of Sacramento did not violate the California Environmental Quality Act (“CEQA”) by beginning construction of the downtown arena. This appeal comes just months after the Third Appellate District rejected the same petitioners’ arguments that expedited CEQA timelines were unconstitutional. (Saltonstall et al., v. City of Sacramento, No. C077031 (Cal. Ct. App. 3rd Dist., Nov. 20, 2014) (Saltonstall I).)
Continue Reading Sacramento Kings – 2, Opponents – 0: Court Rules that the Downtown Arena Satisfies Environmental Review Requirements