Environmental and Approvals

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In an unpublished opinion issued October 22, 2018, Tennis Club Preservation Society v. City of Palm Springs, Case No. E068896, the California Court of Appeal affirmed the trial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.

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

By Christopher W. Garrett, Daniel P. Brunton, Lauren Glaser, Natalie C. Rogers, and Jennifer K. Roy

In a partially published opinion issued April 4, 2018, Small Property Owners of San Francisco Institute v. City and County of San Francisco, Case No. CPF14513453, the California Court of Appeal reversed the trial court’s judgment. The court held that state law preempted the City and County of San Francisco’s (City and County) ordinance provision prohibiting changes to nonconforming residential units for up to 10 years if the units’ tenants were evicted pursuant to the Ellis Act. In summary, the court determined:

  • Petitioner waived its Planning Code and CEQA claims for failure to exhaust its administrative remedies.
  • The Ellis Act preempted the City and County’s 10-year waiting period for alterations to non-conforming units if the owner had evicted a non-fault tenant.

The petitioner, a local property owners’ organization (Petitioner), petitioned for writ of mandate seeking to invalidate the City and County’s ordinance that limited the ability of owners of nonconforming housing units to alter those units if a non-fault eviction had occurred within the prior 10 years (the Ordinance). Petitioner argued:

  • The adoption of the Ordinance violated the Planning Code because the Board of Supervisors (Board) amended the Ordinance prior to adoption and those changes were not reviewed by the Planning Commission (Commission)
  • The City and County’s determination that the Ordinance was not a “project” subject to environmental review violated CEQA
  • The Ellis Act preempted the Ordinance

By Daniel P. Brunton, Lucas I. Quass, and Stephanie L. Postal

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

In a published opinion issued March 15, 2018, Don’t Cell Our Parks v. City of San Diego, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of San Diego’s (the City’s) determination that a wireless communications facility (the Project) qualified for a categorical exemption for new small facilities under CEQA. In summary, the court determined:

  • Exhaustion of administrative remedies is not required if the agency did not hold a public hearing or otherwise provide an opportunity for members of the public to raise objections.
  • A standalone utility can qualify under the Class 3 exemption.
  • For the location exception to CEQA exemptions to apply, a location impacted by a project must be designated as an environmental resource of hazardous or critical concern by an agency.

The petitioner, a non-profit entity (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to overturn the approval of development and use permits for the Project. Petitioner argued that the City’s determination that the Project was exempt from environmental review under the Class 3 exemption was erroneous because, as a standalone utility, the Project would not qualify for a Class 3 exemption. Petitioner also argued that, even if the Project fell within the Class 3 exemption, an environmental impact report (EIR) would be required because the unusual circumstances exception and location exception applied . The court rejected each of these arguments.

By James Arnone, Lucinda Starrett, Marc Campopiano, and Christopher Garrett

California higher courts rule in favor of public agencies on small majority of environmental impact report cases.

Over the course of 2017, Latham lawyers reviewed all 46 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a wide variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion

Appeal in POET II could complicate California Air Resources Board’s proposed LCFS amendments.

Joshua T. Bledsoe, Kimberly D. Farbota

In the case commonly referred to as POET II, petitioner POET, LLC, a biofuels manufacturer, challenged the Low Carbon Fuel Standard (LCFS) and Alternative Diesel Fuels (ADF) regulations which the California Air Resources Board (ARB) adopted in 2015. After briefing had been completed, defendant-respondent ARB filed a motion for judgement on the pleadings (MJOP) on November 21, 2017, in an attempt to have the case dismissed in light of earlier rulings in the related POET I case. On January 5, 2018 the Fresno County Superior Court issued a ruling granting the MJOP with respect to all claims and dismissing the entire case as moot. On March 6, 2018, POET noticed an appeal of the Superior Court’s decision to the California Court of Appeal for the Fifth Appellate District, the same Court of Appeal that issued the decisions in POET I. In that decision, the court sharply criticized the ARB for not acting in good faith and found that ARB failed to comply with the California Environmental Quality Act (CEQA).

Also on March 6, 2018, ARB released proposed amendments to the LCFS that would, inter alia, extend the Program to 2030. Included in the amendment package is an analysis of nitrogen oxide (NOx) emissions attributable to the LCFS, prepared in an attempt to fulfill the writ of mandate issued in POET I. On March 12, 2018, ARB released Regulatory Guidance Document 18-01, which updates prior guidance regarding ARB’s plans to meet the requirements of the writ of mandate issued in POET I. The appeal in POET II carries important implications for the Regulatory Guidance, the amendment package, and potentially for the future of the LCFS Program.

By Joshua Bledsoe and Kimberly Farbota

Recent guidance published by the California Air Resources Board (ARB) clarifies the treatment of diesel fuels under the Low Carbon Fuel Standard (LCFS) in light of the Court of Appeals’ May 30, 2017 decision in POET I. Meanwhile, in POET II, ARB recently filed a Motion for Judgment on the Pleadings (MJOP), in an attempt to have the lawsuit dismissed as moot before a hearing on the merits occurs. While the MJOP addresses all of the claims in POET II and various other filings have been made by the parties in connection with the motion (e.g., Requests for Judicial Notice, a Motion to Strike, etc.), this blog entry focuses only on the key aspects of the MJOP and POET’s opposition thereto.

New Guidance Regarding Implications of the POET I Decision

On November 22, 2017, the ARB posted regulatory guidance to clarify the scope of the writ of peremptory mandate issued by the Fresno County Superior Court on October 18, 2017 (the Modified Writ) to implement the May 30, 2017 POET I decision.

As we have discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by ARB in 2009. On April 10, 2017, the Court of Appeal ruled that ARB had failed to faithfully execute a writ of peremptory mandate requiring it to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original LCFS. In response to a petition for rehearing filed by ARB, the Court of Appeal reissued its opinion on May 30, 2017.

By Joshua Bledsoe and Kimberly Farbota

Two recent developments in the interrelated legal challenges commonly known as POET I and POET II may create additional uncertainty for the future of the Low Carbon Fuel Standard Program (LCFS).

Earlier this year, the California Court of Appeal for the Fifth Appellate District (Court of Appeal) issued two opinions in the POET I case, both of which were adverse to the California Air Resources Board (ARB). As we have discussed in previous posts, the POET I case arises from petitioner POET, LLC’s challenges to the original LCFS regulation adopted by ARB in 2009. On April 10, 2017, the Court of Appeal ruled that ARB had failed to faithfully execute a writ of peremptory mandate (the Writ) requiring it to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original LCFS. In the opinion, the Court of Appeal largely agreed with petitioner POET, LLC, finding that ARB failed to comply with CEQA’s requirement that it analyze the degree to which nitrogen oxide (NOx) emissions would be impacted by implementation of the LCFS.

In response to ARB’s petition for a rehearing, the Court of Appeal reissued its opinion on May 30, 2017. The revised opinion narrows the holding to focus more squarely on the facts of the case, but does not substantively alter the April 10, 2017 opinion. In the revised opinion, the Court of Appeal assigned continuing jurisdiction to the Fresno County Superior Court (Superior Court) over POET I pending ARB’s completion of the revised NOx analysis and discharge of a reissued writ.

By Bob Wyman, JP Brisson, Joshua Bledsoe, Andrew Westgate, and Brittany Dryer

On April 18, 2017, California Assembly Members Garcia, Holden, and Garcia proposed amendments to Assembly Bill No. 378 (AB 378) that are intended to extend but significantly reshape California’s Cap-and-Trade Program.[1] This post briefly summarizes the backdrop against which AB 378 has been proposed and discusses the key provisions of AB 378.

Summary

The Members initially introduced AB 378 on February 9, 2017 to “make sure social justice [and] environmental justice [are] addressed” as the California Legislature contemplates how to meet Governor Brown’s 2030 greenhouse gas (GHG) emission reduction goals, as codified in Senate Bill 32 (SB 32).[2] As discussed below, it would appear that the amendments to AB 378 would support the extension of the Cap-and-Trade Program through 2030. The amendments to AB 378, however, propose a number of fundamental changes to the Program. For example, the amendments would create individual facility GHG emissions caps and empower the California Air Resources Board (ARB) to establish “no-trade zones” and facility declining caps. These changes, taken together, would gut the flexibility that is otherwise inherent to a cap-and-trade program, convert the Program into an unwieldy command-and-control mechanism, and ultimately undermine the ability of the state to meet the SB 32 GHG emission targets in a cost-effective way. Finally, the amendments also would require ARB to adopt new criteria pollutants and air toxics emissions standards in response to ongoing concerns expressed by the Environmental Justice (EJ) Community.

By Joshua T. Bledsoe and Max Friedman

In two recent posts, we discussed how California’s Low Carbon Fuel Standard (LCFS) had been thrown into a state of potential upheaval by two interrelated legal challenges commonly known as POET I and POET II, including a recent oral argument before the California Court of Appeal for the Fifth Appellate District (Court of Appeal) in POET I. That proceeding aimed to determine whether a lower court correctly dismissed a writ of peremptory mandate (the Writ) requiring the California Air Resources Board (ARB) to remedy violations of the California Environmental Quality Act (CEQA) that occurred during promulgation of the original LCFS regulation. ARB re-adopted the revised LCFS regulations in September 2015, but POET, LLC (POET), a South Dakota-based ethanol producer, contended that these revisions failed to properly discharge ARB’s responsibilities under the Writ.

Court Rules Against ARB over NOx Analysis

In its published April 10, 2017 opinion in POET I, the Court of Appeal largely agreed with POET, reversing the lower court’s dismissal of the Writ and holding that ARB had failed to comply with CEQA’s requirement that it analyze the degree to which nitrogen oxide (NOx) emissions from biodiesel fuels had been and would be impacted by the implementation of the LCFS rules. The Court found that ARB’s failure to properly define the scope of the project caused ARB to use an improper baseline against which NOx emissions could be measured. As a result, the Court concluded that ARB’s analysis of NOx emissions from biodiesel fuel was deficient under CEQA, and the environmental analysis was inadequate as an informational document disclosing the entirety of the project’s impacts.

By Janice Schneider, Joel Beauvais, Stacey VanBelleghem, Jennifer Roy, and Francesca Bochner

On March 19, 2017, 52 new or reissued nationwide permits (NWPs) for discharges into “waters of the United States,” issued pursuant to Section 404(e) of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act went into effect. The U.S. Army Corps of Engineers (Corps) requires a Section 404 permit when development activities discharge dredged or fill materials into jurisdictional waters (i.e., “waters of the United States,” including wetlands). The NWPs – which are used to permit tens of thousands of new projects each year – cover a broad range of activities, including development of oil and gas pipelines, transmission and other utility lines, linear transportation projects, renewable energy, coal mining activities, and residential development. The Corps developed the NWPs as programmatic permits to expedite approval of specific types of activities deemed to have minimal environmental impacts. Seeking authorization under an NWP is less expensive and less time-consuming than obtaining an individual permit.

The prior NWPs were issued in March 2012 and expired on March 18, 2017. In the new NWPs, the Army Corps: (1) reissued all 50 of its existing NWPs, with revisions to twenty-seven; (2) issued two new permits; and (3) added one new general condition. The new NWPs include a grandfather provision that allows activities authorized under the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, to have until March 18, 2018, to complete the activity under the terms and conditions of the 2012 NWP. Activities that have not commenced by March 18, 2017, and/or will not be complete by March 18, 2018, must seek authorization under the new NWPs.