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Daniel P. Brunton

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In a decision that could have widespread application to cases challenging agency action, the California Supreme Court in Voices of Wetlands v. State Water Resources Control Board recently upheld the use of a procedural mechanism that some earlier decisions had held impermissible—the interlocutory remand to an administrative agency.  Use of this procedure can significantly expedite the litigation and the administrative proceedings when an agency makes findings that are not sufficiently supported by the evidence. 

In the case, the owners of…

The Army Corps of Engineers recently proposed to reissue the existing NWPs (PDF) authorizing the discharge of dredged or fill material into waters of the United States for specified projects.  For those projects, NWPs can take the place of individual permits (PDF) under section 404 of the Clean Water Act.  Obtaining permit coverage through an NWP is generally quicker and less expensive than obtaining an individual 404 permit—so, for projects that fall within their scope, these NWPs have the potential to streamline one part of the approval process.  

Importantly for renewable energy developers, the Army Corps also proposes to issue two new NWPs—NWP A, for land-based renewable energy generation facilities and NWP B for water-based renewable energy generation pilot projects. 

As part of the Energy Policy Act of 2005 (Act), the Department of Energy (DOE) was directed to identify NIETCs—which are essentially corridors with a pressing need for more transmission capacity for electricity.  The Act allows utilities a fast-track approval process for permits for transmission lines within an NIETC.  Notably, the Federal Energy Regulatory Commission (FERC) may grant a permit for transmission lines within an NIETC if, among other things, a state agency fails to approve the permit application within…

In Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (PDF) (2010) 190 Cal.App.4th 1351, a Court of Appeal in California has ruled that a project’s impacts under the California Environmental Quality Act (CEQA) must be measured against existing conditions—even when the project will not be built and the project’s impacts will not be felt for a number of years after environmental review.  

In the case, the City of Sunnyvale prepared an environmental impact report for a new road…

Finding that the Bureau of Land Management (BLM) had likely failed to consult adequately with the Quechan Tribe over a large solar project’s potential impacts on historic resources, the Federal District Court for the Southern District of California issued an order on December 15th granting a preliminary injunction that halts development of the project. 

The 709-megawatt-project is planned on 6,500 acres of mostly federally owned land in Imperial County, California.  On October 29, 2010, the Quechan Tribe, a federally recognized tribe with a reservation in Imperial County and Arizona, sued the Department of Interior, BLM to overturn the approvals for the project, alleging that they violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Federal Land Policy and Management Act (FLPMA). 

NHPA and its implementing regulations identify certain Indian tribes that the BLM must consult with before approving or spending money on a federally assisted project.  NHPA and its regulations generally require the consultation to “be conducted in a manner sensitive to the concerns and needs of the Indian tribe” and to “recognize the government-to-government relationship between the Federal Government and Indian tribes.”  NHPA’s overall goal is straightforward, but the regulations outlining the required consultations are detailed and complex.  As the court noted: