Welcome to Abbott & Kindermann, Inc.’s June Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2020.
- PREVIOUS MONTH’S UPDATE
To read the May 2020 Environmental Action News post, click here: https://blog.aklandlaw.com/2020/05/articles/land-use-law-blog-may-environmental-action-news/
- CASES PENDING AT THE CALIFORNIA SUPREME COURT
There is one case pending at the California Supreme Court. The case and the Court’s summary are as follows:
County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?
A. CALIFORNIA WATER RIGHTS AND SUPPLY
- Under SGMA, Budget Cuts In The Wake Of The Novel Coronavirus Could Hurt Farmers Later
In May, Governor Newsom announced a revised budget in the wake of the response to the novel coronavirus. The governor mapped out the state’s plans to cover the $54.3 billion budget deficit as a result of the impacts from the coronavirus. As outlined, the proposed budget cuts across many industries and as many have argued, disproportionately affects communities below the poverty line. Of those industries affected, the budget cuts will hit all of California’s proposed water and climate change initiatives. In January, Governor Newsom touted the creation of a $1 billion climate catalyst fund including support for SGMA, water supply infrastructure development and public environmental projects. As the governor stated in his May press conference, these initiatives have been put on hold. The Governor also cut a $4.75 billion ballot measure to support localized climate adaptation including water storage projects. Still, as budgets cuts may scrap preexisting projects in the state, the Governor has assured Californians that water enforcement actions as well as all other environmental enforcement actions will remain during and after the pandemic. Further, SGMA compliance must continue as local water agencies implement water plans through 2020. While the State and Governor Newsom grapple with how to self-correct the many budget cuts affecting future adaptation and capacity problems, Governor Newsom implored the federal government to provide additional funding to the state to backfill the cuts faced by the state in 2020-2021. The Governor is waiting on a response from the federal government.
For more information see:
B. WATER QUALITY
- The State Water Resources Control Board Continues Enforcement Actions During COVID-19 Pandemic
The State Water Resources Control Board (“SWRCB”) issued public statements in March and May stating that all organizations subject to enforcement actions and reporting requirements shall continue to report and comply with SWRCB orders prior to the COVID-19 pandemic. The SWRCB stated that these compliance and reporting requirements are to be treated as essential functions during the pandemic. The Board further stated that although compliance is important to ensure public health and safety, the Board will consider case by case exceptions where organizations are unable to reach compliance orders that conflict with County stay-at-home orders. The Board further emphasized that where entities could not comply, they were required to contact the Board immediately. The shift of the Board to ensure compliance efforts continue juxtaposes the order issued by the USEPA which stated that EPA would hold off on all enforcement actions through the remainder of the pandemic. The EPA is allowing states to continue enforcement actions within the state, but further confused how enforcement would continue when state orders conflict with federal relaxation of enforcement.
For more information see:
- California Finalized and Implements A State Wetland Definition
Since adopting Resolution No. 2008-0026, the State has been pressing forward on the development of a policy and program to protect Waters of the State. Nine years and several draft revisions later, on April 2, 2019, the State Water Resources Control Board (“Board”) adopted a State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (“Procedures”) formerly known as the “Wetland Riparian Area Protection Policy.” Those Procedures will be included in the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California. The Procedures consist of four major elements: (1) a wetland definition; (2) a framework for determining if a feature that meets the wetland delineation is a water of the state; (3) wetland delineation procedures; and (4) procedures for application submittal, and the review and approval of Water Quality Certifications and Waste Discharge Requirements for dredged or fill activities. The Board stated that it developed the Procedures because “[t]here is a need to strengthen protection of waters of the state that are no longer protected under the Clean Water Act (“CWA”) due to U.S. Supreme Court decisions, since the Water Boards have historically relied on CWA protections in dredged or fill discharge permitting practices.” The Board also pointed out that there are inconsistencies across the Water Boards in California in the requirements for discharges of dredged or fill material into waters of the state, including wetlands, because there is no single accepted definition of wetlands at the state level. Furthermore, the Board believed that “current regulations have not been adequate to prevent losses in the quantity and quality of wetlands in California, where there have been especially profound historical losses of wetlands.”
The impact may be particularly substantial for the agricultural industry and large-scale infrastructure projects in California that will almost certainly be subjected to additional permitting obligations and exposed to additional third-party litigation.
The Board’s Procedures constitute “regulations” within the meaning of the Administrative Procedure Act and were required to be reviewed and approved by the Office of Administrative Law (“OAL”) before they became effective. The OAL finalized and approved the rule in September 2019. The rule became operative May 28, 2020.
For more information see:
D. AIR QUALITY AND CLIMATE CHANGE
- City of Oakland v. BP PLC, 960 F.3d 570 (9th 2020).
The Ninth Circuit issued an opinion in the City of Oakland v. BP PLC et al., further separating climate litigation cases from the federal court system by holding that the nuisance claims in climate litigation shall be heard in state courts and not federal. The opinion mirrors similar holdings in the Fourth Circuit Court of Appeals limiting climate tort cases to state courts rather than federal. Should the remaining federal appellate courts split decisions on whether federal tort claims are permissible, it likely will result in an appealable issue for the Supreme Court to settle. The Ninth Circuit rejected District Court judge William Alsup’s conclusion that nuisance claims for climate change are born out of federal law since they are largely greenhouse gas emissions based and entangle with the Clean Air Act. The Circuit further expanded on the discussion of federal preemption giving greater space to state courts to consider broader nuisance claims by stating that the Clean Air Act did not preempt any consideration of state law nuisance claims and litigants could try nuisance claims in state court. The Ninth Circuit’s opinion opens up the floodgates for state courts to hear tort based climate change suits and closes the loophole allowing for nationwide corporations to avoid liability via federal preemption under the Clean Air Act.
E. RENEWABLE ENERGY
- Waste To Energy Project In Santa Barbara County Reaches Phase 2 With The Funding And Support Of The CEC
An innovative joint waste-to-energy project launched in Goleta, CA in 2020. Funded by a mix of private enterprise and state, local, and university support, the project is part of the California Energy Commission’s (“CEC”) 2017 Electric Program Investment Charge (“EPIC”) program. The project uses a large scale biodigester to convert source-separate organic food waste from the University of California, Santa Barbara campus into a clean burning energy source for the campus. The operations manager believes the project can be successfully scaled up as a green energy solution for full scale commercial use throughout California. CEC granted a portion of the funds used to jumpstart the project and stated that the type of energy created by biogas digestion would qualify as sourced energy for California Cap-and-Trade and RPS compliance. The second phase of the project will continue throughout 2020 where the project operations team will coordinate with Goleta Sanitary District to optimize biogas yield and increase energy generation and look toward a path for reducing dependency on carbon-based energy.
For more information see:
F. ENDANGERED SPECIES
- Joshua Trees Recommended For Endangered Species Listing
In April 2020, California Department of Fish and Wildlife recommended the listing of the Joshua Tree under the California Endangered Species Act. There are two species of Joshua Tree and the species proposed for listing are the western Joshua Tree. U.S. Fish and Wildlife denied a petition to list the Joshua Tree under the U.S. Endangered Species Act. The state listing recommendation collected public comments from April to early June. The Fish and Game Commission provided its recommendation to the Department of Fish and Wildlife and a vote on the matter will occur in late June or July. Once the recommendation is accepted, the Joshua Tree will be placed on the candidate list for a year to determine the species status and decide whether listing is appropriate. After the one year period, a second recommendation is made and a vote occurs to determine whether final protection is necessary. The Joshua Tree and Joshua Tree National Park generate roughly $150 million in revenue for communities living around or indirectly supported by the health of the Joshua Tree species. Public comments on the listing recommendation largely addressed concerns from the surrounding community about how listing the species would affect development in the surrounding areas when the species recovery plan and sensitive habitat zones are established. The concern over survival of the western Joshua Tree is particularly tenuous because much of the range habitat in California is on private and state land. This creates development problems for private landowners but would go a long way to support species survival and the longevity of the economy dependent upon the Joshua Tree.
For more information see:
G. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
- Citizen’s for Responsible CalTrans Decisions v. DOT (2020) 46 Cal.App.5th 1103.
A complete analysis of this recent decision is posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/04/uncategorized/2020-ceqa-1st-quarter-review/ .
H. MINING, OIL, AND GAS
- Coal Production States File Suit Against The State Of California To Force Port Cities To Ship Exports
Coastal communities on the west coast is taking a stand against climate change and are citing health concerns and pollution risks to block their ports from exporting coal. In the wake of an already declining coal industry, producers have filed suit against these states claiming that the cities are interfering with interstate commerce.
For more information see:
I. FOREST RESOURCES
- Natural Desert Ass’n v. United States Forest Serv., 957 F.3d 1024 (9th Cir. 2020).
The Ninth Circuit affirmed a summary judgment motion in favor of the United States Forest Service (“USFS”) finding that the actions of USFS were not arbitrary and capricious. USFS was required to prove consistency between the National Forest Management Act (“NFMA”) and Inland Native Fish Strategy (“INFS”) and in a contemporaneous document, the Service met its burden of proof by thoroughly analyzing its efforts to protect bull trout species and issue livestock grazing permits in Oregon. USFS issued livestock grazing permits between 2006-2015 in the Malheur National Forest consistent with the Forest Management Plan and Endangered Species Act. In 1995, the Service adopted the INFS to protect, among other species, the bull trout. Petitioner Oregon Natural Desert Association (“ONDA”) alleged that the INFS and issuance of livestock grazing permits were inconsistent and arbitrary and capricious without considering the bull trout species. The Ninth Circuit did not find ONDA’s argument compelling, holding that USFS included measures to protect species embedded in each grazing permit issued. The Court further held that it was not within the Court’s jurisdiction to force USFS to deny grazing permits until the bull trout populations recover.
J. STREAMBED ALTERATION AGREEMENTS
A complete analysis of this recent decision is posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/06/articles/ceqa/subsequent-review-process-further-clarified-to-promote-ceqa-finality-for-implementation-decisions/ .
K. CULTURAL RESOURCE MANAGEMENT
- Center for Biological Diversity v. Esper, 958 F.3d 895 (9th 2020).
The Ninth Circuit affirmed a summary judgment motion in favor of the Department of Defense finding that the actions of the Department were not arbitrary and capricious under the National Historic Preservation Act (“NHPA”). The Center for Biological Diversity (“CBD”) filed suit against the Department of Defense citing violations of NHPA when the Department found there was “no adverse impact” to foreign property at the site of a new military base in Japan. Under Section 402 of NHPA, the Department is required to “take into account” the effect that construction of a new military base would have on the historic and foreign property in the region. The finding of the Department must not be “arbitrary and capricious” where the Department finds little to no adverse effect resulting from construction. CBD alleged that the Department’s analysis of the adverse effects of construction on the culturally significant dugong was arbitrary and capricious. A dugong is a close relative of the manatee and endemic to South East Asia and the Indian Ocean. The district court and Ninth Circuit affirmed the Department’s position that there need not be consideration for the World Heritage List when determining whether or not the Department was complying with NHPA. As the Ninth Circuit held, Section 402 does not have specific guidelines requiring the agency to consider world heritage considerations when making an impact determination. The Court further held that the Department properly followed the procedural steps required by Section 402 and consulted with the appropriate outside parties when making its determination that a new military base would not have an “adverse effect” on the dugong.
William Abbott, Diane Kindermann, Glen Hansen, and Dan Cucchi are attorneys at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.