Environment, Land & Resources

California Court of Appeal Upholds CEQA Exemption for Wireless Communications Facility

Posted in California, CEQA, Environmental Litigation

By Daniel P. Brunton, Lucas I. Quass, and Stephanie L. Postal

CEQA Case Report: Understanding the Judicial Landscape for Development [i]

In a published opinion issued March 15, 2018, Don’t Cell Our Parks v. City of San Diego, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of San Diego’s (the City’s) determination that a wireless communications facility (the Project) qualified for a categorical exemption for new small facilities under CEQA. In summary, the court determined:

  • Exhaustion of administrative remedies is not required if the agency did not hold a public hearing or otherwise provide an opportunity for members of the public to raise objections.
  • A standalone utility can qualify under the Class 3 exemption.
  • For the location exception to CEQA exemptions to apply, a location impacted by a project must be designated as an environmental resource of hazardous or critical concern by an agency.

The petitioner, a non-profit entity (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to overturn the approval of development and use permits for the Project. Petitioner argued that the City’s determination that the Project was exempt from environmental review under the Class 3 exemption was erroneous because, as a standalone utility, the Project would not qualify for a Class 3 exemption. Petitioner also argued that, even if the Project fell within the Class 3 exemption, an environmental impact report (EIR) would be required because the unusual circumstances exception and location exception applied . The court rejected each of these arguments.

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Investing in the Environment — European Commission Announces Innovation Fund

Posted in Air Quality and Climate Change, European Environmental and Public Law, Power, Oil, Gas and Minerals, Project Siting and Approval

The Innovation Fund will promote advanced low-carbon technologies to reduce greenhouse gas emissions and promote decarbonisation.

By Paul A. Davies and Michael D. Green

By the end of 2018, the European Commission will set up an Innovation Fund (the Fund) to aid decarbonisation. To achieve this, the European Commission will amend the EU Emissions Trading System (EU ETS) Directive via a delegated act. The EU ETS was created to reduce carbon emissions and incentivise companies to reduce their output, and covers around 45% of the EU’s greenhouse gas (GHG) emissions. Entities with access to the Fund from 2021 to 2030 (phase 4 of EU ETS) will include power and energy-intensive industrial sectors.

The Fund will build on support from the NER300 initiative — a large funding programme for innovative low-carbon projects. This support led to €2.1 billion being awarded to 38 innovative renewable energy projects and a carbon capture and geological storage (CCS) project. Money from the Fund will be used to help finance low-carbon technologies such as CCS, and will extend to both small and large-scale projects. Continue Reading

Can China Meet Its Paris Agreement Targets?

Posted in Air Quality and Climate Change, China, Power, Oil, Gas and Minerals

Increased manufacturing offshoring and industrial activity may prevent China from reaching its commitments, despite a booming renewable energy sector.

By Paul A. Davies, Kimberly Leefatt, and R. Andrew Westgate

China’s carbon emissions increased by 4% in the first quarter of 2018 — marking the biggest hike in carbon emissions in the last seven years, according to an article published by China Economic Review. Increased industrial activity is due in large part to the government’s financial support of furnaces and kilns meant to stimulate the economy. However, industrial growth could prevent China from achieving its Paris Agreement targets, despite the country’s reduction in coal use and commitment to promoting renewable forms of energy.

Increasing Carbon Emissions

China is responsible for approximately 30% of global carbon emissions. In fact, China emits twice the amount of CO2 per dollar of gross domestic product compared with the United States, and more than in the European Union. Continue Reading

CEQA Case Report: Understanding the Judicial Landscape for Development

Posted in California, CEQA, Environmental Litigation

By James ArnoneLucinda Starrett, Marc Campopiano, and Christopher Garrett

California higher courts rule in favor of public agencies on small majority of environmental impact report cases.

Over the course of 2017, Latham lawyers reviewed all 46 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a wide variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion of the patterns that emerged in these cases. Latham will continue to monitor CEQA cases in 2018, posting summaries to this blog.

The California Court of Appeal heard 43 CEQA cases, while the California Supreme Court heard the following three cases: Banning Ranch Conservancy v. City of Newport Beach, Friends of the Eel River v. North Coast Railroad Authority, and Cleveland National Forest Foundation v. San Diego Association of Governments. Exactly half of all CEQA cases decided in 2017 were published.

The chart on the right shows all 46 cases sorted by topic. The greatest number of cases (20 of the 46) focused on Environmental Impact Reports (EIRs). Attorneys’ Fees, Justiciability, and Other Procedures accounted for 12 cases. This category includes issues such as standing, preemption, statute of limitations, and res judicata. Six cases focused on negative declarations or mitigated negative declaration, while five cases focused on CEQA exemptions and exceptions to these exemptions. The remaining three cases involved supplemental review or certified regulatory programs.

In the below chart, cases are also sorted by topic but include additional information on whether the public agency prevailed in each kind of case. For purposes of this summary, if the public agency lost on any issue it is deemed to have not prevailed. Overall, public agencies prevailed in 30 of 46 cases, or 65%, but won only 55% of EIR cases. Public agencies saw their greatest level of success in exemption/exception, negative declaration, and supplemental review cases.

Read the full CEQA Case Report Year in Review 2017.

Overview and Notable Features of the European Commission’s Proposed Sustainable Finance Regulations

Posted in European Environmental and Public Law, Green Finance

Measures aim to establish consistent criteria for sustainable investments, as well as clear market standards for investors.

By Paul A. Davies and Aaron E. Franklin

Overview

The European Commission (EC) has set out its first proposal for “concrete actions” to help the EU financial sector take the lead in establishing a greener economy and supporting the Paris Agreement. These legislative proposals, which were published on 24 May 2018, follow the release of the EC’s Action Plan on sustainable finance on 8 March 2018 (more information on the Action Plan is available in this Latham blog post).

If the changes are adopted, they would be implemented through a series of delegated acts to establish the environmental taxonomy, followed by a fitness check of EU legislation on public corporate reporting and amendments to non-binding guidelines on non-financial reporting. The EC would also adopt a prospectus for green bond issuances and would publish a comprehensive study on sustainability ratings and research. Finally, the EC would create ecolabels for financial products and explore possible measures to see how climate and environmental risks can be incorporated into banks’ risk management policies aligning with the EU taxonomy. Continue Reading

China Faces Serious Water Supply Problems

Posted in China, Contaminated Properties & Waste, Water Quality and Supply

China’s uneven distribution of water sources presents unique difficulties to China as demand for water is increasing rapidly.

By Paul A. Davies and R. Andrew Westgate

China’s water supply problems are well-known globally. However, the main problem facing China is how to distribute its water, rather than lack of water per se. 80% of China’s water supply lies in southern China. But this water cannot be used by the population of 12 Chinese provinces representing 41% of its total population, 38% of Chinese agriculture, 46% of its industry, and 50% of its power generation. Eight of these provinces are currently experiencing acute water scarcity, while in four provinces water is merely “scarce,” and two provinces are largely desert. Moreover, the problem is getting worse, with 28,000 rivers in China having dried up over the past 25 years. And China’s appetite for water continues to grow, with consumption forecast to rise to 670 billion cubic meters a year by the early 2020s.

Adding to the problem is the fact that coal mining is a water-intensive as well as polluting process, and 85% of coal reserves in China are located in provinces where water is scarce and must be shared with a large agriculture industry. Reportedly 20% of all water use in China is for mining, processing, or consumption of coal, and almost 70% is for agricultural purposes. Rapid growth in water demand, combined with a reliance on groundwater drawn from aquifers, has resulted in a new problem — subsidence. This poses a threat to over 50 cities in China and is being closely monitored by the government. Continue Reading

Conseil d’Etat Issues Advisory Opinion on Environmental Permits Challenged Before Administrative Courts

Posted in European Environmental and Public Law, Project Siting and Approval

A recent Environmental Code amendment aims to invigorate sluggish legal processes delaying environmental project development.

By Paul A. Davies and Fabrice Fages

Third parties and local NGOs often bring legal action against environmental permits in France, hampering the development of environmental projects in the country. An example of a practical consequence is that the development of a wind farm takes on average between seven and nine years in France, versus three to four years in Germany. In order to limit the impact of drawn-out legal proceedings before administrative courts and allow projects to progress, a 2017 amendment to the Environmental Code (article L.181-18) now affords administrative judges broader powers to give more time and leeway to the authorities to correct a flawed decision or part of a decision before the court simply annuls it. Continue Reading

EC Refers Member States to ECJ Over Failure to Control Air Pollution

Posted in Air Quality and Climate Change, European Environmental and Public Law

After neglecting to heed an initial warning, six Member States may face financial penalties if they do not reduce pollution levels.

By Paul A. Davies, Michael D. Green, and Alexander Wilhelm

The European Commission (EC) has referred the UK, France, Germany, Hungary, Italy, and Romania to the European Court of Justice (ECJ) for failing to adequately tackle and control air pollution in their respective jurisdictions. The Member States, the EC said, had not produced and delivered “credible, effective and timely measures to reduce pollution as soon as possible, as required under EU law”. The EC had already issued these Member States with a warning in January 2018. Polluted and toxic air is thought to cause over 400,000 early deaths each year in Europe. The actions against the UK, France, and Germany concern exceedances of nitrogen dioxide (NO2), while the actions against Hungary, Italy, and Romania target particulate matter (PM10).

The ECJ can impose significant fines stretching to millions of euros, for Member States that fail to remedy their behaviour.

In this blog, a more detailed analysis of the current position in the UK, France, and Germany is set out. Continue Reading

IMO Strategy to Halve Greenhouse Gas Emissions From Shipping By 2050

Posted in Air Quality and Climate Change, European Environmental and Public Law, Project Siting and Approval

The Initial Strategy provides the first global climate framework for the shipping sector and will support Paris Agreement targets.

By Paul Davies, Janice Schneider, and Eun-Kyung Lee

Background

In April 2018, the Marine Environmental Protection Committee of the International Maritime Organization (IMO) adopted an initial strategy to reduce greenhouse gas (GHG) emissions in international shipping (Initial Strategy). The IMO is a United Nations agency with responsibility for the safety and security of shipping and the prevention of marine pollution from ships. The Initial Strategy represents the first global climate framework for shipping. In tangible terms, IMO aims to reduce the total annual GHG emissions by at least 50% by 2050 compared to 2008 levels, while simultaneously planning to phase GHG emissions out entirely.

Initial Strategy aims and measures

The Initial Strategy consists of (i) a framework for Member States outlining guidelines for the international shipping industry in the future and (ii) short- mid- or long-term measures to reduce GHG emissions. For this purpose, the Initial Strategy determines several “levels of ambition” for the international shipping sector. Levels of ambition directing the Initial Strategy are as follows:

  • Carbon intensity of ships to decline through implementing further phases of the energy efficiency design index (EEDI) for new ships
  • Carbon intensity of international shipping to decline — including reducing CO2 emissions per transport work, as an average across international shipping, by at least 40% by 2030, pursuing efforts towards 70% by 2050, compared to 2008
  • GHG emissions from international shipping to peak and decline

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Post-Brexit Environmental Principles and Governance Bill Consultation Launches in UK

Posted in European Environmental and Public Law, Project Siting and Approval

Consultation document proposes replacing the European Commission with a new environmental watchdog, among other recommendations.

By Paul A. Davies and Michael D. Green

The UK government has announced a consultation in relation to the proposed new Environmental Principles and Governance Bill, which aims to ensure maintained and strengthened environmental protection following the UK’s exit from the EU. While this particular consultation, which was announced on 10 May, relates to England, the government has indicated that it will “… work closely with devolved administrations on common frameworks”. The government’s intention is to “… ensure we leave our environment in a better state than we inherited it”. The planned publication date for the Bill is this autumn.

The consultation document includes three parts:

  • Part 1 relates to the effect of environmental principles enshrined in both international and EU law, and how England’s statutory framework could incorporate these principles.
  • Part 2 addresses the idea of establishing a new watchdog to hold the government to account in relation to environmental protection.
  • Part 3 explores what the exact function and role of the new watchdog would be, as well as the responsibilities of government and Parliament in developing policy and law, along with the Environment Agency’s and Natural England’s role in implementing such policies.

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