Environment, Land & Resources

California Appeals Court: Statewide Emissions Goals May Inform Mitigation Measures

Posted in Air Quality and Climate Change, California, CEQA

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

By Christopher W. Garrett, Daniel P. Brunton, Diego Enrique Flores, and Samantha K. Seikkula

In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the trial court’s judgment denying Responsible Development for Water Tank Hill’s (Petitioner’s) petition for writ of mandate, finding that the County of San Mateo (County) had properly analyzed the potential environmental impacts of San Mateo Real Estate, Inc.’s (Developers’) proposed housing development (Project) and that the County’s determinations were supported by the substantial evidence. In summary, the court determined:

  • An EIR’s analysis of noise impact should be site-specific and should consider qualitative factors as well as technical factors
  • When an EIR finds, based on substantial evidence, that an impact would be less-than-significant, further mitigation is not required.
  • An agency may rely on statewide emissions-reduction goals when determining mitigation measures to reduce a project’s significant GHG impacts.

Background for Appeal

After several rounds of public comment, the San Mateo County Planning Commission (Commission) approved the Project. The County Board of Supervisors denied an appeal of the approval and upheld the Commission’s decision. Petitioner then filed a petition for writ of mandate seeking to set aside the Project approvals as inadequate under CEQA. Petitioner argued that the approvals were inadequate because:

  • The environmental impact report (EIR) failed to adequately analyze impacts
  • The County failed to adopt feasible mitigation measures
  • The County’s findings were not supported by substantial evidence
  • The County failed to recirculate the final EIR after making changes that constituted significant new information

The trial court rejected Petitioner’s specific challenges to the County’s environmental analysis of air quality, aesthetics, hydrology, and noise, finding that the County had properly analyzed the potential environmental impacts of the Project and that the County’s determinations were supported by substantial evidence. Petitioner appealed the decision with respect to air quality and noise.

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California Appeals Court Dismisses As Moot Litigant’s Challenge to Planned Development Approval

Posted in California, CEQA, Environmental Litigation, Project Siting and Approval

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

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, John D. Niemeyer, and Samantha K. Seikkula

In an unpublished opinion issued February 20, 2018, Advocates for Better Cmty. Dev. v. City of Palm Springs, Case No. E066193, the California Court of Appeal dismissed as moot an appeal from the trial court’s judgment and upheld the City of Palm Springs’ (City’s) decision to approve changes to a planned development in downtown Palm Springs. In summary, the court determined:

  • On appeal, a CEQA challenge is moot where, due to events that occur while the appeal is pending, the court is no longer able to grant effective relief

Advocates for Better Community Development (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to invalidate the City’s addendum to an environmental impact report (EIR) for the changes to the planned development. Petitioner argued that that the City’s approval was inconsistent with the Museum Market Plaza Specific Plan (Specific Plan) and that the approval violated CEQA because the changes were substantial and required additional environmental review. The court held that these issues were moot due to an ordinance that the City passed modifying the Specific Plan before Petitioner filed its notice of appeal.

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California Legislature Eyes 100% Clean Energy Target

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

The California Assembly is expected to vote this summer to establish increased renewable energy targets and set a target of 100% clean energy by 2045.

By Marc T. Campopiano, Jennifer K. Roy, Diego Enrique Flores

SB 100, Senator Kevin De Leon’s renewable energy bill, would increase California’s already ambitious renewable energy standards by 2030 with an ultimate goal of 100% clean energy by 2045. On July 3, the California Assembly Committee on Utilities and Energy passed the bill out of committee. In 2017, the bill was approved in the Senate but did not progress through the Assembly before the term ended. In 2018, SB 100 is expected to again reach the Assembly floor for consideration.

As currently drafted, SB 100 would increase California’s Renewables Portfolio Standard (RPS) requirement from 50% to 60% by 2030, and set a goal of 100% clean energy by December 31, 2045 through RPS-eligible and zero-carbon resources. Clean energy could be defined more broadly than the current definition of renewable energy, to include energy resources such as large-scale hydro power that qualify as zero-carbon.

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How to Prepare for California’s Updated Prop 65 Regulations: Part 1

Posted in California, Water Quality and Supply

Upcoming regulation will require online and catalog retailers to implement product warnings.

By: Michael G. Romey and Lucas I. Quass

Enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop 65), will change significantly on August 30, 2018. Two years earlier, on August 30, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for implementing Prop 65, issued regulations that increased businesses’ responsibility to provide a “clear and reasonable” warning to consumers for products that contain carcinogens and/or reproductive toxicants. Among other requirements, under these new regulations (2016 Regulations) businesses must provide consumers in California with more specific information about potentially harmful chemicals in their consumer products. The 2016 Regulations also specify which entities in the stream of commerce are responsible for providing the Prop 65 warnings and the information that goes into the warnings.

Specifically, the 2016 Regulations will impact online retailers and upstream entities such as product manufacturers, suppliers, and distributers, who under the 2016 Regulations are primarily responsible for Prop 65 warning labels. See CAL. CODE. REGS. tit. 27, § 25600.2(a) (2016).

This blog post is the first in a series to consider several issues as the 2016 Regulations become effective on August 30, 2018. These regulations are only applicable to products manufactured on or after August 30, 2018. If you have further questions about the implementation of the 2016 Regulations, please contact one of the authors or the Latham lawyer with whom you usually consult.

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EU Aims to Improve the Energy Efficiency of Europe’s Buildings with New Directive

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

Building owners and developers will need to provide energy performance certificates for buildings.

By Paul A. Davies and Michael D. Green

The European Union has published a directive aimed at improving building energy efficiency and reducing carbon emissions. EU Member States are required to transpose the directive (Directive (EU) 2018/844) by March 10, 2020.

The directive, published on June 19, 2018, replaces the previous directive on the energy performance of buildings, which was first introduced in 2002 and then recast in 2010. The directive, forms part of the Clean Energy for all Europeans legislative package and is designed to promote energy efficiency in both old and new buildings as well as encourage building renovation. The revised directive is one of the EU’s eight proposals to achieve the Energy Union targets. Continue Reading

Protecting the Environment Under the French Constitution: The Story Continues

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

Lawmakers will debate an amendment to include the country’s environmental commitments in Article 1 of France’s Constitution.

By Fabrice Fages

MPs in France have adopted an amendment to include a new paragraph in Article 1 of the French Constitution. The amendment reads:

France acts towards the preservation of the environment and biological diversity, and against climate change.”

The Constitutional Law Commission of the National Assembly adopted the amendment on June 27, 2018, as part of France’s upcoming constitutional reform. A plenary session beginning on July 10, 2018 will debate the amendment.

The amendment represents an interesting shift from the previous constitutional reform proposal. The previous proposal addressed the protection of the environment and the fight against climate change via the modification of Article 34 of the Constitution. Continue Reading

Green Bond Principles Stay the Course

Posted in Green Finance

Latest iteration of popular guidelines continue with voluntary, market-driven approach.

By Paul A. Davies and Aaron E. Franklin

The annual update of the Green Bond Principles (now also including the Social Bond Principles, and the Sustainability Bond Guidelines, collectively, the Principles) on June 14, 2018 created few surprises. The Principles, highly influential in the sustainable finance space, are subject to annual revision by an executive committee comprised of a set of underwriters, issuers and investors (with the support of the International Capital Market Association (ICMA) as secretariat). Each year, members and observers of the Principles (including Latham & Watkins) submit proposals for amendments to the Principles, with the final amendments formally announced at an annual conference. This year’s conference was held in Hong Kong, in a move to highlight the importance of Asian markets for sustainable finance and the global reach of the Principles.

As has been the case since the inception of the Principles in 2014, the bedrock idea behind the Principles is that the market decides what counts as a green bond. Third-party assurance or review is “encouraged”, but the emphasis remains on issuer communication to enable informed decision-making by investors. This emphasis takes the form of four core components that an issuer should disclose as part of its offering documents: (i) the use of the bond’s proceeds (i.e., what are the eligible green projects?); (ii) the process for project evaluation and selection; (iii) management of proceeds and (iv) reporting. As they have in prior editions, the Principles continue to discourage the green bond label on green bonds that do not otherwise follow the core components (including “pure play” green bonds). Continue Reading

EU Increases Renewable Energy Target in Preparation for Renewable Energy Directive

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

The EU has agreed that one third of energy use should be from renewable sources and encourages the use of renewable electricity or biofuels sourced from waste rather than crops.

By Paul A. Davies and Michael D. Green

After 18 months of negotiations, the EU has increased its renewable energy target from 27% to 32% for the years 2020 to 2030. The European Parliament and Council will formally approve the agreement in the near future, so it can be set into EU law in the form of the EU Renewable Energy Directive (RED II).

The EU has agreed that by 2030, just under one third of energy use in the EU should be from renewable sources. The trade body for European energy utilities has described the deal as a “well-balanced compromise”. Miguel Arias Cañete, the climate and energy commissioner, noted that “the binding nature of the target will also provide additional certainty to the investors”. Continue Reading

The EU Adopts Four Directives to Solidify Europe’s Leading Position in Waste Management

Posted in Contaminated Properties & Waste, European Environmental and Public Law

The Circular Economy Package aims to “close the loop” of product lifecycles through greater recycling and re-use.

By Paul A. Davies, Eun-Kyung Lee, and Patrick Braasch

The Circular Economy Package includes four directives that were adopted by the European Parliament on 18 April 2018 (see Latham’s previous post) and by the EU Council on 22 May 2018. The directives were recently published in the Official Journal (OJ L 150, 14 June 2018), and entered into force on 4 July 2018 and Member States should implement the directives within a two year period.

The legislative package amends:

  • The Waste Framework Directive (2008/98/EC)
  • The Landfilling Directive (1999/31/EC)
  • The Packaging Waste Directive (94/62/EC)
  • The Directives on end-of-life vehicles (2000/53/EC), on batteries and accumulators and waste batteries and accumulators (2006/66/EC), and on waste electrical and electronic equipment (2012/19/EU)

The overall goal of the directives is to improve EU waste management. This will contribute to the protection, preservation, and improvement of the quality of the environment as well as encourage the prudent and rational use of natural resources. More specifically, the directives aim to implement the concept of “waste hierarchy”, which has been defined in Article 4 of the Waste Framework Directive. The waste hierarchy sets a priority order for all waste prevention and management legislation and policy which should make any disposal of waste a solution the last resort:

  1. Prevention
  2. Preparing for re-use
  3. Recycling
  4. Other recovery, e.g., energy recovery
  5. Disposal

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