By Tom Henry and Michael Sherman on Posted in CEQA,Mining
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 … Continue Reading
By Parissa Florez and Michael Sherman on Posted in CEQA
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 … Continue Reading
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 … Continue Reading
By Juliet H. Cho and Tom Henry on Posted in Air,CEQA
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
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, … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 public … Continue Reading
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 … Continue Reading
On June 4, 2015, the Court of Appeal ruled that California Fish and Game Code section 1602 (“Section 1602”) unambiguously requires notification to the Department of Fish and Wildlife (“Department”) if an entity or individual plans to “substantially divert” water, even when the legal right to use the water was previously established. (Siskiyou County Farm … Continue Reading
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 10,000-square-foot … Continue Reading
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 … Continue Reading
On December 10, 2014, the California Supreme Court granted petition for review in Friends of the Eel River v. North Coast Railroad Authority to resolve a split between the First and Third District Courts of Appeal. (230 Cal.App.4th 85 (2014), cert. granted, 339 P.3d 329, Cal. S.C. Case No. S222472 (2014).) The Court will consider two questions: … Continue Reading
Today saw two significant developments for oil and gas operators utilizing well stimulation treatments in California. Pursuant to SB 4, the Department of Conservation’s Division of Oil, Gas and Geothermal Resources released a statewide programmatic Draft Environmental Impact Report (“EIR”) analyzing the potential environmental impacts associated with well stimulation treatments, including hydraulic fracturing (aka “fracking”). … Continue Reading
By Michael Sherman and Tom Henry on Posted in CEQA
In Friends of the Kings River v. County of Fresno, No. F068818 (Cal. Ct. App. 5th Dist., Dec. 8, 2014), the Fifth Appellate District upheld Fresno County’s (County) approval of the Carmelita Mine and Reclamation Project (Project) in 2012. The Project includes a proposed aggregate mine and related processing plants on a 1,500-acre site located … Continue Reading
The Surface Transportation Board (“STB”) issued a declaratory order in a 2-1 vote last Friday, finding that the California Environmental Quality Act (“CEQA”) is categorically preempted by federal law, as it relates to the Fresno to Bakersfield segment of the California High-Speed Rail Project (“HSR Project”).
Section 10501(b) of Title 49 of the United States Code provides that remedies with respect to rail transportation are exclusive and preempt remedies provided under State or Federal law. The STB has previously ruled that states or localities are precluded from intruding into matters directly regulated by the STB, in particular when the state or local action would have the effect of foreclosing or unduly restricting the rail carrier’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.
Under this section, the STB could not overlook the fact that CEQA, as a state pre-clearance requirement, could ultimately deny or significantly delay the High-Speed Rail Authority’s (the “Authority”) right to construct a railroad line. This would directly defy the STB’s exclusive jurisdiction over a project that it regulates. Even if it could be argued that the Authority created an implied agreement by voluntarily beginning the CEQA process, the STB concluded that any such agreement would unreasonably interfere with interstate commerce because it would prevent the Authority from exercising its authority to construct the rail line, which it had been previously authorized to do by the STB.… Continue Reading
The California High-Speed Rail Authority (“CHSRA”) is gaining more steam in keeping the High-Speed Rail Project (the “Project”) on track. Today, the California Supreme Court issued a decision declining to review an appellate ruling against the CHSRA. In July of this year, the Third District Court of Appeal overturned a lower court’s decision ruling that … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
In Roberson v. City of Rialto, No. E058187 (Cal. Ct. App. 4th Dist., May 21, 2014), the Fourth Appellate District affirmed the trial court’s judgment, upholding several project approvals for a new commercial retail center in the City of Rialto (City), including a Wal-Mart supercenter. The appellate court denied Roberson’s petition for writ of administrative … Continue Reading
In North Coast Rivers Alliance v. Westlands Water District, No. FO67383 (Cal. Ct. App. 5th Dist. July 3, 2014), the Fifth Appellate District upheld the Westland Water District and its related distribution districts’ (Water Districts) conclusion that their approval of the 2012 interim renewal contracts with the U.S. Bureau of Reclamation (Bureau) for Central Valley … Continue Reading
