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Decision is third initiative of the EC’s REFIT programme to simplify regulation for Member States.

By Paul A. Davies and Michael D. Green

The EU Council has adopted a decision to reduce and consolidate EU environmental reporting legislation in order to decrease bureaucracy and costs as well as to simplify environmental reporting compliance for Member States.

This streamlining forms part of the regulatory fitness and performance programme (REFIT) which the European Commission (the Commission) established in 2014. The REFIT programme aims to remove out-of-date and unnecessary legislation relating to environmental monitoring and reporting as well as to improve communication between Member States and citizens so that information about the environment is shared more efficiently.

As part of this effort, the Commission set out its “repeal package” which was made up of three initiatives. The decision taken on 14 May 2018 was the third part of this initiative.

Recapping the first year of activity by the Trump administration on key issues.

By Joel C. Beauvais and Steven P. Croley

The Renewable Fuel Standard, or RFS, has been the focus of sustained policy discussion and resulting uncertainty during the first year of the Trump administration. Over the past year, the administration has floated, and then set aside, several proposals for substantial policy change. The administration has also granted RFS exemptions to a substantial number of small refineries, dampening demand…

By Christopher Garrett, James Erselius, and Samantha Seikkula

CEQA Case Report: Understanding the Judicial Landscape for Development[1]

In a partially published opinion[2] issued January 12, 2018, City of Long Beach v. City of Los Angeles, the California Court of Appeal affirmed in part and reversed in part the trial court’s judgment requiring the City of Los Angeles (Los Angeles) to set aside certifications of the environmental impact report (EIR) for a project whereby BNSF Railway Company (BNSF) would construct a 153-acre near-dock railyard four miles from the Ports of Long Beach and Los Angeles (Project).  In summary, the court determined:

  • An EIR’s analysis of air quality impacts is incomplete where it fails to provide information sufficient for the public and decision makers to understand how air quality will change with reference to time.
  • The Attorney General is exempt from CEQA’s issue exhaustion requirement.
  • A project description does not need to analyze the project’s environmental impacts.

Petitioner City of Long Beach (Petitioner) filed a petition for writ of mandate seeking to invalidate the City of Los Angeles’s (Los Angeles) EIR for the Project.  On appeal, Los Angeles challenged the trial court’s conclusions that: 1) the EIR was deficient because its project description and analysis of indirect impacts failed to discuss reasonably foreseeable indirect impacts from freeing capacity at the existing railyard near the Project site, the Hobart railyard; 2) the EIR’s analysis of noise, traffic, air quality, and greenhouse gas emissions was inadequate; and 3) the Attorney General, who intervened in the petition, was not precluded from asserting objections to the EIR that were not raised in the administrative proceedings.  The court agreed with Los Angeles that the project description, analysis of indirect impacts, and analysis of noise, traffic, and greenhouse gas emissions were adequate, but affirmed the trial court’s decision with respect to the inadequacy of the EIR’s air quality analysis and the Attorney General’s exemption from issue exhaustion rules. 

By Winston P. Stromberg, Lucas I. Quass, and Derek Galey

Rodeo Citzens Ass’n v. County of Contra Costa, California Court of Appeal, First Appellate District, Division Three, Case No. A151184 (March 20, 2018).

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

In a published opinion issued March 20, 2018, Rodeo Citizens v. County of Contra Costa, the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate requiring the County of Contra Costa to set aside the certification of the environmental impact report (EIR) and approval of the land use permit for the Propane Recovery Project (Project) at an oil refinery in Rodeo, California. In summary, the court determined:

  • A project description need not address potential changes in the use of a facility that are unrelated to the project under consideration.
  • CEQA does not require speculation regarding downstream greenhouse gas (GHG) emissions that cannot be reasonably feasibly quantified.

The petitioner, Rodeo Citizens Association (Petitioner) had filed a petition for writ of mandate seeking to invalidate the County’s certification of the final EIR and approval of the Project’s land use permit. The trial court found certain deficiencies in the air quality section of the Recirculated Final EIR (RFEIR) and issued a writ of mandate requiring reconsideration of that section, but rejected Petitioner’s remaining arguments. Despite the trial court’s issuance of the writ, Petitioner appealed the trial court’s decision rejecting Petitioner’s additional arguments that the project description and the analysis of GHG emissions and environmental hazards fail to comply with CEQA. The court found no error in the trial court’s conclusions and affirmed the peremptory writ as issued.

Plan outlines next steps for procuring 2,400 MW by 2030, with a likely significant benefit for New York’s economic development.

By Tommy Beaudreau, Janice Schneider, Michael Gergen, and David Amerikaner

New York Governor Andrew Cuomo and the New York State Energy Research and Development Authority (NYSERDA) have released the New York State Offshore Wind Master Plan, an extensive document that highlights the state’s progress on offshore wind development while charting an ambitious path forward. The plan is designed to help meet the Governor’s previously announced goal of procuring 2,400 megawatts (MW) of offshore wind energy by 2030. The offshore wind goal is part of an overall strategy to generate at least 50% of New York’s electricity from renewables by 2030, as previously covered in this blog.

Proposed changes include shifting the methodology for studying projects’ potential traffic impacts and clarifying the terms for deferred mitigation measures.

By Marc Campopiano, Winston Stromberg, and Samantha Seikkula

The California Natural Resources Agency (the Agency) has given notice that it intends to revise many of the regulations implementing the California Environmental Quality Act (the CEQA Guidelines). If adopted, the proposed rulemaking package would represent the most substantial amendments to the CEQA Guidelines in 20 years. The most significant proposed change shifts the methodology for studying projects’ potential traffic impacts and mitigation measures under CEQA.

By Christopher Garrett, Lucas Quass, Natalie Rogers, and Derek Galey

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

In an unpublished opinion issued January 4, 2018, Visalia Retail v. City of Visalia, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of Visalia’s (the City) final environmental impact report (EIR) for its 2030 General Plan Update (the General Plan Update). In summary, the court determined:

New England wind farms poised to lead the way in utilities converting from fossil fuel to wind generation.

By Tommy Beaudreau, Janice Schneider, and David Amerikaner

The race is on to build the first utility-scale offshore wind farm in the United States (US) on the federal Outer Continental Shelf. In December, three companies — Bay State Wind, Deepwater Wind, and Vineyard Wind — submitted bids in response to the Request for Proposal (RFP) issued by the Massachusetts Electric Distribution Companies (Distribution Companies), in coordination with the Massachusetts Department of Energy Resources, to enter into long-term contracts for offshore wind energy generation off of the coast of Massachusetts. The RFP was issued pursuant to Section 83C of Massachusetts’ Act to Promote Energy Diversity. Under the RFP, the Distribution Companies required developers to submit projects of at least 400 megawatts (MW) of offshore wind power generation, while also considering projects generating up to 800 MW. This initial solicitation is part of a staggered procurement plan, in accordance with Section 83C, to acquire approximately 1,600 MW of aggregate offshore wind nameplate capacity by June 30, 2027.

Each of the submitting wind farm ventures holds a federal lease from the Bureau of Ocean and Energy Management (BOEM) for areas in federal waters 15 to 25 miles offshore. All three bids propose wind farms south of the island of Martha’s Vineyard that would provide 400 MW of power, though some bids include alternate proposals on smaller or larger scales. Each bid also includes storage and transmission proposals, as the RFP required.

Interior Department agencies to take immediate steps to jumpstart a plan for promoting US critical mineral production.

By Janice M. Schneider, Tommy Beaudreau, Sara K. Orr, and James D. Friedland

miningUS Interior Department agencies are developing a strategic framework that will advance US critical mineral production. These efforts come on the heels of Executive Order No. 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” which directs the development of a strategy aimed at reducing reliance on foreign sources for critical minerals, such as rare-earth elements, and promoting policies to increase US critical mineral development.

President Trump signed the Executive Order on December 20, 2017, after the release of a new US Geological Survey (USGS) study. The Executive Order finds that “the United States is heavily reliant on imports of certain mineral commodities that are vital to the Nation’s security and economic prosperity” and that this dependence on foreign sources “creates a strategic vulnerability for both [the United States’] economy and military to adverse foreign government action, natural disaster, and other events that can disrupt the supply of these key minerals.” The Executive Order also finds that “despite the presence of significant deposits of some of these minerals across the United States,” the domestic mining industry is hindered by the lack of accessible geological and geophysical data, permitting delays, and the potential for protracted litigation.

The day after the Executive Order was announced, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3359, “Critical Mineral Independence and Security,” to implement the presidential directive. The Secretarial Order directed Interior Department agencies to take the following actions.

By Tommy Beaudreau, Janice Schneider, and David Amerikaner

New York Governor Andrew Cuomo released the 2018 Clean Energy Jobs and Climate Agenda last week as the 20th proposal of his 2018 State of the State address. The far-reaching proposal charts a path forward for further progress in advancing clean energy in New York this year, and beyond.

In particular, the agenda intends to promote clean energy development, combat climate change, and reduce greenhouse gas emissions through reductions in greenhouse gas caps, additional goals for offshore wind development, and investments in energy infrastructure and storage, as well as other initiatives. This agenda supplements New York’s previously adopted commitment to generate 50% of the state’s electricity needs from renewable sources by 2030.