CEQA: The California Environmental Quality Act

California’s State Mining and Geology Board had a busy 2017 with ongoing rulemakings to implement SMARA reform enacted in 2016.  The Board’s 2018 will be busy and one to closely watch too, in particular, because the Board plans to address the unintended environmental consequences created by the adoption fifteen years ago of what is known as the “Backfill Regulation.”

For those who fled California in the wake of the Backfill Regulation, here’s a quick refresher on why you packed your bags and haven’t returned.  The Backfill Regulation has two key requirements for open pit metallic mineral mines.  First, the regulation requires all open pit excavations to be backfilled to the original surface elevation.  Second, any excess material must be graded with the resulting topography not to exceed the pre-mining surface elevation by more than 25 feet.

Overall, the Backfill Regulation has been bad news for the California mining industry and the environment as explained in this February 2016 Update on the Regulatory Environment for Metallic Mines in California.  In a nutshell, the Backfill Regulation requires moving material twice (increasing GHG emissions), fails to address the proper storage and handling of waste materials (jeopardizing water quality), and can cause greater ground disturbances (impacting habitat for sensitive species).Continue Reading California Mining Board to Address Environmental Problems Created by Backfill Regulation Affecting Gold and Other Metallic Mineral Mines

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

As the sands shift on federal climate change policy, California’s cap-and-trade program survives to fight another day.  Yesterday, a California Court of Appeal upheld the program because it does not impose a tax subject to the two-thirds supermajority vote requirement under Proposition 13.  The Court also affirmed the California Air Resources Board’s (CARB) authority to auction GHG emissions allowances.  For the ins and outs of the decision and prior coverage of the case, pop on over to Renewable + Law for a great post by my colleagues, Allison Smith and Parissa Florez.

Now, stating the obvious here: a lot is riding on this case.  The cap-and-trade program has generated billions of dollars in fees and the program plays a crucial role in California’s goal to cut GHG emissions.  Those fees don’t get paid with monopoly money, but instead hit the bottom line of companies across many different industries.  Of course, some consider the fees to be a small price to pay to prevent flooding, the sixth mass extinction, and in their view, the end of the world. On a level that hits closer to home for many readers of this blog, the challenge to the cap-and-trade program has added to the uncertainty of how to address GHG emissions for development projects subject to CEQA.  As previously discussed by my colleague, Tom Henry, reliance on the cap-and-trade program appears to be one of the few approaches to a legally defensible CEQA GHG analysis.Continue Reading CARB Wins Again on Cap-and-Trade, But Is It Really in Any Danger of Losing?

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released a revised draft of thresholds for measuring transportation impacts under the California Environmental Quality Act (“CEQA”). These draft thresholds are designed to promote the reduction of greenhouse gas emissions (“GHG”) pursuant to its mandate under Senate Bill 743 (Steinberg, 2013). The initial draft was released for review in August 2014.

OPR’s revised draft is fundamentally similar to its initial draft. In particular, under both drafts, the focus of a project’s transportation impacts analysis under revised Guidelines would shift from analyzing the project’s potential to increase traffic delays to the project’s effects on GHG emissions by focusing on vehicle miles traveled (“VMT”). The CEQA Guidelines have always focused a project’s potential transportation impacts analysis on the project’s potential to increase traffic delays by analyzing the project’s level of service (“LOS”).
Continue Reading Updates to CEQA Guidelines for Transportation Impacts Analysis Under SB 743

Looks like Christmas came early, again, for the Center for Biological Diversity (CBD).  Based on a petition submitted by CBD, the California Fish and Game Commission voted earlier this month to designate the tricolored blackbird as a candidate species under the California Endangered Species Act (ESA).  The tricolored blackbird now enjoys the same legal protections, including the “take” prohibition, that apply to endangered or threatened species under the California ESA.

Within the next 12 months, the Department of Fish and Wildlife will prepare a status report with a listing recommendation.  Based on staff comments at the candidacy hearing, it appears that report will take the full 12 months to prepare.  Consequently, the Commission would likely make its final determination to list (or not to list) the tricolored blackbird as endangered at a public hearing in early 2017.
Continue Reading Your Tricolored Blackbird Problem Just Got Worse With Candidate Listing Under the California ESA

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

While many of us were busy hitting refresh for those great Cyber Monday deals, the California Supreme Court quietly issued its decision on the Newhall Ranch project.  In a decision reminiscent of the snail darter era, the Court held that “fully protected fish” are just that — fully protected under California law from all forms of incidental “take” resulting from a development project.  The Court also found that project opponents had exhausted their administrative remedies by submitting comments during an “optional comment period.”  Further, the Court found inadequacies in the “business-as-usual” analysis of GHG impacts from the project.  Stay tuned for a post later this week from one of my air quality colleagues on the implications of the GHG analysis.

I won’t bore you with the long history of this litigation again and again, but in 2010 the California Department of Fish and Wildlife (CDFW) issued an incidental take permit and master streambed alteration agreement to facilitate the build out of the Newhall Ranch project, a mixed-use development project on nearly 12,000 acres in LA County.  Permitting and litigation for the project has been ongoing for over 15 years.

The opposition’s battle cry has consistently been the project’s potential negative impacts to multitudes of fauna and flora.  The showdown before the Court, however, involved only one tiny fish: the unarmored threespine stickleback (stickleback).  While the name may not scream “poster species,” the stickleback has “fully protected” status under California law.  Consequently, the California Fish & Game Code prohibits the “take” of stickleback, i.e. a person may not “hunt, pursue, catch, capture, or kill” or attempt any of those actions.
Continue Reading Take of Fully Protected Fish Stops Large Housing Development Project in LA County

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

As one of many implementation steps under the Sustainable Groundwater Management Act (“SGMA” codified as Water Code §§ 10720 et seq.), basin boundary regulations were released recently by the California Department of Water Resources (“DWR”), with a public comment deadline set for Friday, September 4. DWR is holding public meetings this week to solicit

With the Sustainable Groundwater Management Act (“SGMA”) taking effect on January 1, 2015, the California Department of Water Resources (“DWR”) is in full swing of holding public workshops and information sessions to solicit input from stakeholders and other members of the public as well as to answer questions regarding SGMA’s various milestone requirements.

On July