Environment, Land & Resources

CEQA Case Report: Understanding the Judicial Landscape for Development

Posted in California, CEQA, Environmental Litigation, Environmental Regulation

2018 Year in Review: Public agencies prevailed in 65% of CEQA cases analyzed.

By James L. Arnone, Marc T. Campopiano, Christopher W. Garrett, and Lucinda Starrett

Over the course of 2018, Latham & Watkins lawyers reviewed all 57 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a 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 2019, posting summaries to this blog.

The California Court of Appeal heard 55 CEQA cases, while the California Supreme Court heard one case: Sierra Club v. County of Fresno. This case concerned what constitutes sufficient detail in an environmental impact report (EIR) and has implications for the preparation of EIRs as well as judicial review of agency decisions certifying EIRs.

In addition to the 56 state cases, one federal CEQA case, AquAlliance v. U.S. Bureau of Reclamation, was heard by the Eastern District of California.

Of the 57 cases, 26 were published, 25 were unpublished, and six were partially published. Figure 1 (above) shows all 57 cases sorted by topic. The greatest number of cases (28 of the 57, or 49%) focused on EIRs. In 2017, only 43% of cases focused on EIRs. Attorneys’ Fees, Justiciability, and Other Procedures accounted for 16 cases. This category includes issues such as mootness, statutes of limitations, waiver, and res judicata. Nine cases focused on Exemptions and Exceptions. Two cases focused on Mitigated Negative Declarations and two cases focused on Supplemental Review.

Figure 2 (right) shows the distribution of cases heard among the six appellate districts as well as the public agency success in each district. The Sixth District was the only district in which the public agencies prevailed in all cases. In the Fifth District, public agencies had the least success, prevailing in only 29% of the cases.

Figure 3 (below) sorts cases by topic and includes additional information on whether the public agency prevailed in each kind of case. For the purposes of this summary, if the public agency lost on any issue, it was deemed not to have prevailed. Overall, public agencies prevailed in 37 of 57 cases, or 65% of the time, the same percentage as in 2017, and won in 68% of EIR cases, compared with 55% in 2017. By contrast, public agencies prevailed in only 56% of cases involving Attorneys’ Fees, Justiciability, and Other Procedures, compared with 67% in 2017.

Additionally, a suite of amendments to the CEQA Guidelines went into effect this year. The California Office of Administrative Law adopted amendments relating to several sections, including those affecting greenhouse gas impacts, baseline procedural requirements, and permissible mitigation deferral. More detail on these amendments can be found in this article, published on Latham’s Environment, Land & Resources blog. The final adopted text of these amendments is publicly available here.

Read the full CEQA Case Report Year in Review 2018.

Committee on Climate Change Recommends UK Government Adopt 2050 Net-Zero Greenhouse Gases Budget

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

The Committee has recommended that the UK government take the lead in reaching net-zero, through social, financial, and policy change.

By Paul A. Davies and Michael D. Green

The Committee on Climate Change (CCC), a statutory body that advises the UK government on carbon budgets, has recommended that the UK government should commit to cutting greenhouse gases (GHGs) to net-zero by 2050 in an attempt to meet its commitments under the 2015 Paris Agreement. The Financial Times described the proposed goal as the “toughest binding target of any big economy.”[i] To meet this ambitious net-zero target, the UK government would need to employ technologies such as carbon capture, utilization, and storage to curtail the volume of GHGs entering the atmosphere. Chris Stark, chief executive of the CCC, remarked that the UK’s bid to reach net-zero will be a “powerful signal to other countries”[ii] to take action. Continue Reading

TCFD Issues Implementation Guide Incorporating SASB and CDSB Frameworks

Posted in Air Quality and Climate Change, Environmental Regulation

The Guide aims to improve climate-related risk disclosure in organizations’ mainstream reports.

By Paul A. Davies and Kristina S. Wyatt

The Taskforce on Climate Related Financial Disclosures (TCFD) has issued an Implementation Guide designed to foster improved reporting of climate-related information. The TCFD has enjoyed widespread support since its formation in 2015, yet relatively few organizations are applying the TCFD’s reporting guidance to address climate impacts in their disclosure documents.[i] The new Implementation Guide is designed as a “how to” manual to remedy this disclosure gap. The Guide aims to help companies to enhance the robustness, consistency, and utility of their climate disclosures by applying the disclosure guidance offered by the Sustainability Accounting Standards Board (SASB) and Climate Disclosure Standards Board (CDSB). This application of the TCFD, CDSB, and SASB standards should help companies to craft disclosures in harmony with the TCFD’s principles-based framework and the disclosure principles offered by the CDSB and SASB. Continue Reading

2012 German Law on Renewable Energy Does Not Constitute State Aid

Posted in Energy Regulatory, Environmental Litigation, European Environmental and Public Law, Power, Oil, Gas and Minerals

ECJ ruling provides EU Member States more flexibility in designing the promotion of renewable energies.

By Jörn Kassow and Alexander Wilhelm

The European Court of Justice (ECJ) recently ruled that the German Renewable Energy Act of 2012 (Erneuerbare-Energien-Gesetz – EEG 2012) did not constitute State aid (C-405/16 P). The ECJ found that the support mechanism for renewable energies in practice financed by electricity consumers paying the so-called “EEG surcharge”, and the reductions for electricity-intensive companies related to the EEG surcharge, do not constitute State aid because they do not involve State resources.

The ECJ ruling on 28 March annulled a November 2014 decision by the European Commission (EC) that approved the German support mechanism for renewable energies as compatible State aid, and for the most part the reduction of the EEG surcharge for electricity-intensive undertakings. However, in that decision the EC had also ordered Germany to recover a limited part of the reductions that was deemed incompatible. Continue Reading

EU Announces Stricter Emissions Standards for Cars and Commercial Vans

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

EU will tax manufacturers for excess emissions and collect individual consumption data from vehicles in order to meet climate change goals.

By Jörn Kassow and Patrick Braasch

The EU is setting stricter CO2 emission standards for new passenger cars and light commercial vehicles (LCVs). A new regulation on CO2 emission standards (Regulation (EU) No 2019/631), replacing the past regulations (EC) No 443/2009 and (EU) No 510/2011, was published in the Official Journal on 25 April 2019 and will enter into force with effect from 1 January 2020. From 2025 onwards, the average CO2 emissions of new passenger cars and LCVs must be reduced by 15% compared to 2021 levels. By 2030, the average emissions must be reduced by 37.5% for passenger cars and 31% for LCVs, in each case compared to 2021 levels.

These average emissions targets apply to each manufacturer’s (or group of connected manufacturers’) EU-wide fleet of new passenger cars and LCVs. The regulation will reward manufacturers with less stringent CO2 targets if they meet benchmarks regarding their respective fleet’s share of zero- and low-emission vehicles (2025: 15% for both passenger cars and LCVs, 2030: 35% for passenger cars and 30% for LCVs). Furthermore, manufacturers may enter into pooling arrangements (subject to competition law restrictions) for meeting their emissions targets. These arrangements will allow leaders in zero- and low-emission vehicles to capitalise on their below-average emissions by pooling with, and effectively selling their emissions savings to, manufacturers of more traditional, i.e., CO2-intensive passenger cars and LCVs. Manufacturers can also apply to the Commission for consideration of CO2 savings achieved through the use of innovative technologies. The Commission may grant temporary derogations from their specific emissions targets to certain niche manufacturers. Continue Reading

New York to Consider Imposing California Proposition 65-Like Labeling Requirements

Posted in California

The prospect of facing bicoastal enforcement in two of the largest markets in the US could prove burdensome to businesses.

By Kegan A. Brown, Michael G. Romey, James A. Erselius, and Lucas I. Quass

On January 21, 2019, New York Governor Andrew M. Cuomo announced a proposal for the Consumer Right to Know Act — legislation that would authorize the Department of Environmental Conservation, in consultation with the Department of Health and the Department of State, to develop regulations establishing on-package labeling requirements for designated products indicating the presence of potentially hazardous chemicals, including carcinogens. If passed, the law would parallel California’s Proposition 65, which was enacted in 1986. Regulations updating Proposition 65 went into effect on August 30, 2018, which Latham & Watkins has summarized in previous blog posts.

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China Aims to Boost Investment in Clean Energy

Posted in China, Energy Regulatory, Power, Oil, Gas and Minerals, Project Siting and Approval

The Green Industry Guidance Catalogue attempts to provide consistent nationwide guidelines for green industries and projects.

By Paul A. Davies and R. Andrew Westgate

Background

On 6 March 2019, seven Chinese regulatory agencies issued the Green Industry Guidance Catalogue (the Catalogue) listing “green industries” that are eligible for funding with green bonds. The seven agencies include the National Development and Reform Commission (NDRC), Ministry of Industry and Information Technology, Ministry of Natural Resources, Ministry of Ecology and Environment (MEE), Ministry of Housing and Urban-Rural Development, The People’s Bank of China, and the National Energy Board.

China’s environmental revolution not only entails implementing a robust, modern policy framework, but also a significant rearrangement of the economy itself — rendering the revolution a priority for both ecological and economic development reasons. As a result, in recent years, all provinces and directly-administered municipalities within China and departments within the Chinese government have introduced policies and measures to promote green industries. However, these policies and measures have been hampered by a lack of uniformity and the application of differing standards in different regions. Continue Reading

Recent Prop 65 Amendments Prompt Claims Against Online Alcohol Retailers in California

Posted in California

Online alcohol sellers should ensure compliance with the new Prop 65 warning label requirements.

By Michael G. Romey, Lucas I. Quass, and James A. Erselius

On August 30, 2018, new regulations governing the implementation of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) went into effect. The new regulations apply to all products manufactured after that date and require updated warnings that must appear on product labels in addition to other substantive changes. For an overview of the amendments, please refer to Latham’s four-part “How To Prepare” blog series. One provision of the recent amendments, concerning the warning requirements for the sale of alcoholic beverages, has triggered a notices of violation. In the first quarter of 2019, more than 50 notices alleging failure to comply with Prop 65 have been sent to online retailers of alcoholic beverages. Continue Reading

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