Environment, Land & Resources

UPDATE: LCFS Standards for Diesel and Diesel Substitutes to Revert to Schedule Specified in LCFS Regulation January 1, 2019

Posted in Energy Regulatory

California Air Resources Board lifts freeze on Low Carbon Fuel Standard.

By Joshua T. Bledsoe and Kimberly D. Farbota

On December 7, 2018, the California Air Resources Board (CARB) issued Regulatory Guidance Document 18-02 which lifts the freeze on Low Carbon Fuel Standard (LCFS) diesel and diesel substitute targets previously enacted by CARB in 2017 in connection with the POET I case. The Guidance becomes effective January 1, 2019 at which point the applicable diesel standards will revert to the schedule specified in the current LCFS Regulation.

The freeze, put in place by CARB to comply with a writ of mandate, will now be lifted following the discharge of the writ. As discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by CARB in 2009. In April 2017, the Court of Appeal ruled that CARB failed to faithfully execute a writ of peremptory mandate requiring the agency to properly address nitrogen oxide (NOx) emissions from biodiesel, and in October 2017, the Superior Court issued a modified writ of mandate to reflect the Court of Appeals holding. In accordance with the modified writ, in November 2017 Continue Reading

Why EPA’s Proposed CO2 Standards for New Power Plants Matter

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

EPA’s proposed standards have important implications, even though few coal plants are slated for development.

By Joel C. Beauvais and Stacey L. VanBelleghem


On December 6, the US Environmental Protection Agency (EPA) signed a proposed rule to establish new source performance standards (NSPS) under Clean Air Act Section 111(b) for carbon dioxide (CO2) emissions from new, reconstructed, and modified power plants. The proposal would replace the existing Obama-era standards — which were based on applying partial carbon capture and sequestration (CCS) technology for new coal-fired plants — with significantly less stringent requirements. EPA’s proposal has several important implications for the power industry and other emitting sectors, even though few, if any, new coal plants are expected to be built in the United States in the near future.

EPA’s Current and Proposed CO2 Standards: A Comparison

EPA’s proposal would establish new emission limits, based on the “best system of emission reduction” (BSER) identified by the agency, for new, reconstructed, and modified coal-fired steam electric generating units (EGUs). For natural gas-fired combustion turbines, EPA proposes no changes to the 2015 Obama-era rule. Continue Reading

California Court of Appeal Dismisses Time-Barred Challenge to Development Phase

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, and Christopher Adam Martinez

In an unpublished opinion issued October 22, 2018, Tennis Club Preservation Society v. City of Palm Springs, Case No. E068896, the California Court of Appeal affirmed the trial court’s decision dismissing the Tennis Club Preservation Society’s (Petitioner’s) petition seeking to enjoin the City of Palm Springs (City) from issuing building and other permits for Phase III of a proposed development (Project) by real parties in interest John Wessman and Baristo Group, LLC (collectively, Developer). In summary, the court determined:

  • The doctrine of laches prevents the Petitioner’s claim that the Phase III plan violates the mitigated negative declaration’s (MND’s) mitigation measures because the Phase III plan conforms with the plans approved 15 years prior.
  • The Project is not a phased development for the purposes of a local ordinance such that planning commission review and approval would be required prior to further development.

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California Court of Appeal Upholds Noise Analysis in Negative Declaration

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

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

By Christopher W. Garrett, Megan K. Ampe, James A. Erselius

In a published opinion issued May 1, 2018, Jensen v. City of Santa Rosa, Case. No. SCV255347, the California Court of Appeal affirmed the trial court’s judgment upholding the City of Santa Rosa’s (City’s) negative declaration finding no significant environmental effects. In summary the court found:

  • The presentation of a non-expert analysis using a vague and difficult-to-grasp methodology cannot be regarded as a legitimate factual or scientific basis and will not satisfy the requirements of substantial evidence to support a fair argument.

The petitioners, two neighbors of the proposed project (Petitioners), had filed an unsuccessful petition for writ of administrative mandate seeking to overturn City’s negative declaration and to compel City to perform an environmental impact report (EIR). Petitioners had challenged City’s decision under CEQA alleging that, among other things, noise impacts from the Project were sufficient to require the preparation of an EIR.

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California Appeals Court Determines Threshold and Scope for EIR Requirement

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

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

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, and Robert C. Hull

In an unpublished opinion issued May 31, 2018, Save Adelaida v. County of San Luis Obispo, Case No. B279285, the California Court of Appeal partially affirmed the trial court’s decision and held that an environmental impact report (EIR) was required for real party in interest Willow Creek Newco, LLC’s (Willow Creek) application for a minor use permit and that the EIR must analyze wastewater. In summary, the court determined:

  • A low threshold for requiring an EIR exists when a fair argument can be made that a project may have a significant environmental impact, even when contrary evidence exists.
  • An EIR is necessary when evidence regarding a project’s impact contradicts the contents of a mitigated negative declaration (MND).

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Environment Agency Data Shows Spike in Enforcement Undertakings in England and Wales

Posted in Environmental Litigation, Environmental Regulation, European Environmental and Public Law

The growth in the level of undertakings throughout 2018 tallies with a general increase in environmental enforcement.

By Paul A. Davies and Michael D. Green

The Environment Agency has released data indicating that enforcement undertakings in England and Wales reached more than £2.2 million in 2018 — the highest-ever levels within a single year. The amounts raised under these undertakings were given to projects and charities that will benefit the environment and assist in cleaning up parks, rivers, and beaches. In addition, the enforcement undertakings include voluntarily agreed binding commitments to carry out remediation and/or other corrective action.

Enforcement undertakings are voluntary, legally binding agreements that regulators can use if they have reasonable grounds to suspect that an offence has been committed. These undertakings are one of the enforcement tools available to the Environment Agency, Natural England, and Natural Resources Wales in relation to potential environmental offences. Such offences include those relating to breaches of environmental permitting regulations, breaches under producer packaging requirements, and breaches of regulations concerning the discharge of wastewater. Continue Reading

Congress Reauthorizes Federal Water Infrastructure Bank: 3 Takeaways for Project Developers

Posted in Water Quality and Supply

WIFIA program — no longer a “pilot” — is set to grow.

By Joel C. Beauvais and David J. Penna

On October 23, 2018, President Trump signed into law the America’s Water Infrastructure Act of 2018 (AWIA 2018). This bipartisan legislation, among other elements, reauthorized the Water Infrastructure Finance and Innovation Act (WIFIA). WIFIA, which established a federal water infrastructure bank administered by the US Environmental Protection Agency (EPA), is intended to ramp up federal funding for large-scale projects. Under the program, EPA can make low-interest, long-term loans and loan guarantees for a broad range of water projects. Eligible users include private, public, or mixed public-private entities, projects generally must be US$20 million or larger, and loans or guarantees can cover up to 49% of eligible costs. For a broader overview, please see Latham & Watkins’ WIFIA White Paper.

Although WIFIA was enacted in 2014, Congress did not fund the program until Fiscal Year (FY) 2017. In FY 2017, Congress appropriated funding sufficient to provide more than US$3 billion in loans or guarantees, and in FY 2018 expanded this to support more than US$5 billion in loans or guarantees. WIFIA uses a two-step selection process, beginning with the project proponents submitting letters of interest to EPA; from these, EPA selects a subset of projects to make a full application, with the expectation that projects making a full application ultimately will be approved. EPA closed its first loan in April 2018 and recently selected 39 projects to apply for FY 2018 funding. The program enjoys robust bipartisan support, and appears poised to continue to grow in coming years. While the reauthorizing legislation made only modest changes to WIFIA, water project developers considering using the program should note three key takeaways. Continue Reading

Environmental Groups Face Another Loss in Coal Ash Fight

Posted in Contaminated Properties & Waste

Latest court ruling further underscores circuit split on groundwater conduit theory.

By Joel C. Beauvais and Stacey L. VanBelleghem

The US District Court for the Central District of Illinois has held that power plant owners are not liable under the Clean Water Act (CWA) for discharges of pollutants from coal ash disposal facilities through groundwater to waters of the US. The November 14 ruling is the latest in a series of recent defeats of CWA citizen suits premised on the so-called “groundwater conduit” theory.

Plaintiffs in Prairie Rivers Network v. Dynegy Midwest Generation, LLC initiated a CWA citizen suit against the owners of the Vermilion Power Station, a retired coal-fired power plant in Illinois. Plaintiffs alleged that defendants unlawfully discharged pollutants into groundwater from unpermitted seeps in their coal ash disposal facility and this groundwater was hydrologically connected to the Middle Fork of the Vermillion River. The district court relied on prior US Court of Appeals for the Seventh Circuit precedent (outside the coal ash context), holding that the CWA does not govern discharges of pollutants into groundwater, even if there is a hydrologic connection between the groundwater and waters of the US. Unlike other recent cases evaluating CWA liability from coal ash facility seepage into groundwater, this court did not address whether the coal ash facility was a “point source” under the CWA, given the existing circuit court precedent on the groundwater conduit theory. Continue Reading

California Appeals Court Determines When a Second Challenge Meets Res Judicata

Posted in California, CEQA, Project Siting and Approval

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

By Lucas I. Quass, Peter J. Gutierrez, and Roopika Subramanian

In a partially published opinion issued September 18, 2018, Atwell v. City of Rohnert Park, Case No. SCV256891, the California Court of Appeal affirmed the trial court’s judgment that the petition for writ of mandate challenging the City of Rohnert Park’s (City’s) approval of a Walmart expansion project (the Project) was barred by res judicata because a prior petition challenging City’s initial approval raised the same claim of inconsistency with City’s General Plan. In summary, the court held:

  • In determining whether two challenges constitute the same cause of action under the doctrine of res judicata, if a subsequent claim is based on a project proposal that has not changed since the prior action, then a city’s approval will only raise a new issue or injury if the city included new or revised conditions or measures that are at issue in the subsequent petition.

In 2015, Petitioner Nancy Atwell (Petitioner) filed a petition for writ of mandate seeking an order to vacate City’s project approvals alleging inconsistency with the General Plan. After a briefing on the merits was complete, City filed a motion for judgment on the pleadings, asserting that Petitioner’s claims were barred by the doctrine of res judicata. The trial court concluded that the petition was barred by res judicata and the statute of limitations, and that substantial evidence supported the City Council’s determination that the Project complied with the General Plan.

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EPA Announces “Cleaner Trucks Initiative” to Reduce NOx Emissions

Posted in Air Quality and Climate Change

The announcement signals EPA’s intent to publish a proposed rule in 2020.

By Arthur F. Foerster

On November 13, the United States Environmental Protection Agency (EPA) announced its “Cleaner Trucks Initiative” (CTI) to further decrease oxides of nitrogen (NOx) emissions from on-highway trucks and engines. EPA intends to publish a proposed rule in early 2020, which will both reduce emissions and also “cut unnecessary red tape while simplifying certification of compliance requirements.” According to EPA’s announcement, deregulatory efforts will center around onboard diagnostic requirements (OBD), reassuring real-world compliance, recertification, and certain types of testing. The announcement stated, “New programs borne out of the CTI offer opportunities to streamline regulations through smarter program design and reduce the overall regulatory burden while protecting human health and the environment.”

EPA’s Acting Administrator, Andrew Wheeler, launched the initiative and was joined by labor and industry representatives, EPA and White House officials, and certain state partners. Wheeler did not provide a specific proposal, only touching on a broad framework for the eventual rule. However, he did say that “reducing NOx emissions from heavy-duty vehicles is a clean air priority for this administration.” According to Wheeler, “the Cleaner Trucks Initiative will help modernize heavy-duty truck engines, improving their efficiency and providing cleaner air for all Americans.” Continue Reading