Environmental and Approvals

By Paul Singarella, Chris Garrett, Andrea Hogan, Daniel Brunton, John Heintz, Taiga Takahashi, and Lucas Quass

On October 9, 2015, the US Court of Appeals for the Sixth Circuit stayed the implementation of the Clean Water Rule (the Final Rule) nationwide. The Final Rule defines “waters of the United States” (WOTUS), a threshold term that determines the Clean Water Act’s (CWA) scope and application. The Final Rule was issued on May 27, 2015, by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), with an effective date of August 28, 2015.

The Sixth Circuit found that the coalition of states challenging the Final Rule “demonstrated a substantial possibility of success on the merits of their claims” and that a stay would “temporarily silence the whirlwind of confusion that springs from the uncertainty about the requirements of the new Rule and whether they will survive legal testing.”[i]

Subject Matter Jurisdiction Still Under Consideration By the Sixth Circuit

The case already has a complex procedural history. Challenges to the Final Rule were filed in courts in a number of circuits. There is parallel litigation in the District Courts, and about a month ago, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Final Rule, but applied the injunction to only the 13 states that were party to the case before the court. The US Judicial Panel on Multidistrict Litigation consolidated the petitions before the Circuit Courts for review and randomly selected the Sixth Circuit to hear the consolidated petitions.

By Chris Garrett, Shivaun Cooney and Shannon Lankenau

On October 7, 2015, the California Supreme Court heard oral argument in California Building Industry Association v. Bay Area Air Quality Management District (Supreme Court Case No. S213478), a case which calls into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of the California Environmental Quality Act (CEQA) is inconsistent with the statute’s language and intent. While the California Building Industry Association’s (CBIA) challenge to the Bay Area Air Quality Management District’s (BAAQMD) guidelines raised numerous legal issues, the Supreme Court’s order granting review in the matter expressly limited briefing and argument to the following issue: “Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?” In other words, is CEQA review limited to an analysis of a project’s impact on the existing environment, or does it also require an analysis of the existing environment’s impact on the project and its future occupants and users?

CBIA’s Challenge to BAAQMD’s Thresholds of Significance

On November 29, 2010, CBIA filed a petition for writ of mandate challenging BAAQMD’s 2010 thresholds of significance for certain air contaminants (Thresholds), adopted pursuant to Section 15064.7 of the CEQA Guidelines. The trial court agreed with CBIA that BAAQMD should have conducted an environmental review under CEQA before issuing the Thresholds, but declined to address CBIA’s remaining arguments, including that the Thresholds were arbitrary and capricious to the extent they required an evaluation of the impacts the environment would have on a given project (referred to by some as CEQA in reverse).[i]

By Marc Campopiano, Andrea Hogan and Joshua Marnitz

On September 22, 2015, the White House, through the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ), issued guidance to the heads of certain federal departments and agencies[1] (the Agencies) establishing metrics for the permitting and environmental review of infrastructure projects in the United States (the Guidance). The Guidance is intended to expand the use and reframe the purpose of the publicly accessible online Federal Infrastructure Permitting Dashboard (the Dashboard). To that end, the Guidance establishes a set of metrics to track permit and review timelines for certain infrastructure projects, and sets a schedule for collecting and posting that data to the Dashboard. It then outlines an approach for capturing and reporting the environmental and community impacts resulting from the federal permitting and review process.

The infrastructure projects covered by the Guidance include those projects in the following sectors: surface transportation (including all highway, rail, and transit projects); airport capital improvement projects; ports and waterways; water resource projects; renewable energy generation; electricity transmission; storm-water infrastructure; broadband internet; and pipelines (except those subject to Federal Energy Regulatory Commission oversight). The Guidance also provides that the Agencies can include other sectors, as appropriate.

By Sara Orr and Jennifer Roy

On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the unintentional take of migratory birds. Reversing a district court decision and joining the position of the Eighth and Ninth Circuits, the appellate court held that the MBTA’s take prohibition is limited to “deliberate acts done directly and intentionally to migratory birds,” effectively exempting take that occurs incidental to otherwise lawful activities. While such incidental take may still be subject to prosecution under other federal laws protecting birds, such as the Bald and Golden Protection Act or the Endangered Species Act, the Fifth Circuit concluded that unintentional acts are not subject to the strict liability penalties of the MBTA. This ruling may provide additional assurances to a wide variety of industries with operations in the Fifth, Eighth and Ninth Circuits that have the potential to impact migratory birds, particularly oil and gas, wind, and solar energy. Given the divide among the courts and the importance of the issue, however, it is possible that the U.S. Supreme Court will take up the issue in the future.

The Migratory Bird Treaty Act

Congress enacted the MBTA in 1918 to implement a treaty between the United States and Great Britain. The general policy of the MBTA is to provide for the “preservation, distribution, introduction, and restoration of game birds and other wild birds.” The MBTA prohibits the take of all listed birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define “take” as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts.

By Joshua T. Bledsoe, Marc T. Campopiano, and Max Friedman

As California begins to turn the page on the first chapter of its efforts to combat climate change through AB 32 and to prepare for greater emissions reductions over the coming decades, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are considering what these changes will mean for electricity transmission infrastructure. To that end, CEC Chair Robert Weisenmiller and CPUC President Michael Picker sent a letter to Cal-ISO President and CEO Stephen Berberich on July 31, 2015 asking him to participate in the planning stages of the Renewable Energy Transmission Initiative (RETI) 2.0. Since 2008, the first iteration of RETI has served as a statewide initiative to identify and implement the energy transmission projects needed to accommodate California’s renewable energy requirements.

Now, with Governor Brown’s executive order to cut California’s greenhouse gas emissions by 2030 and a number of legislative proposals advancing to set further greenhouse gas emissions reductions targets for 2030 and beyond, as well as the US EPA’s federal Clean Power Plan encouraging regional coordination among states to increase renewable electricity production, the CEC and CPUC feel that the time has come to bring RETI up to date.

By Paul Singarella, Chris Garrett, Andrea Hogan, Daniel Brunton, Garrett Jansma, John Heintz, Danny Aleshire and Lucas Quass

On August 27, 2015, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Clean Water Rule (the Final Rule). The Final Rule defines Waters of the United States (WOTUS), a threshold term that determines the Clean Water Act’s (CWA) scope and application. The Final Rule was issued on May 27, 2015, by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), with an effective date of August 28, 2015.

The Final Rule represented the first comprehensive effort since the 1980s to clarify through regulations the definition of WOTUS. In the Final Rule, EPA and the Corps expanded the definition of WOTUS in a manner that appears to assert jurisdiction over not only almost all waters and wetlands across the country, but also dry lands located between water bodies. Given the expansive scope of the Final Rule, it has been the subject of considerable controversy throughout the rulemaking and has been challenged in court by both states and industry.

By Michael Carroll, Marc Campopiano and Max Friedman

The California Energy Commission (CEC) has released an August 2015 report projecting local reliability shortfalls in the Los Angeles basin planning area as early as 2021. The deficits may require new natural gas power generation to maintain grid reliability.

This finding is part of the Integrated Energy Policy Report, a collaborative effort with the California Public Utilities Commission (CPUC), California Independent System Operator, and the California Air Resources Board.

The report recommends that the CPUC “[i]nclude in its 2016 [Long Term Procurement Plan (LTPP)] rulemaking an explicit focus on local capacity requirements. Further, the CPUC should not assume that such requirements in the intermediate period 5-8 years forward have been satisfied through decisions in the 2012 LTPP rulemaking and the procurement activities authorized by D.14-03-004.” This recommendation would represent a significant shift in the CPUC’s planning horizon because the 2016 LTPP is intended to evaluate the need for new power resources beginning in 2026, not as early as 2021. Now, it appears that new resources may be needed much faster than the CPUC had anticipated.

Authors: Sara Orr and Jennifer Roy

On August 11, 2015, the US District Court for the Northern District of California remanded a US Fish & Wildlife Service’s (FWS) 2013 final rule that had extended the maximum duration of eagle take programmatic permits under the Bald and Golden Eagle Protection Act (Eagle Act) from 5 years to 30 years.[i] FWS promulgated the rule (an amendment to the existing eagle permitting program established in 2009) to align the duration of programmatic eagle take permits with the typical lifetime of renewable energy projects, such as wind farms. Bird protection groups then challenged the rule, alleging the FWS did not properly comply with the procedural requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act. While the district court recognized that “promoting renewable energy projects may well by a ‘worthy goal,” the court held that FWS did not meet its procedural obligations under NEPA and remanded the matter back to the FWS to complete the necessary environmental review. As a result of the Court’s decision, 30-year incidental take permits are no longer available to project developers under the Eagle Act until the FWS completes its environmental review and reissues the rule.

The Eagle Act’s Regulatory Scheme

The Eagle Act prohibits a person from taking, possessing, purchasing, bartering, offering to sell, transporting, exporting or importing bald or golden eagles, whether the eagle is alive or dead, or “any part, nest, or egg” of an eagle without a permit.[ii] Under the Eagle Act, take includes to “pursue, shoot, shoot at, poison, wound, kill, capture, collect, molest, or disturb.”[iii] “Disturb” is further defined broadly by regulation, including agitating or bothering a bald or golden eagle “to a degree that causes, or is likely to cause injury to an eagle, a decrease in its productivity, or nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.”[iv] The federal government can assess both civil and criminal penalties for unauthorized take of bald and golden eagles.[v]

By Marc Campopiano and Max Friedman

Following the May 28, 2015 release by the Bureau of Land Management (BLM) of 14 final Environmental Impact Statements (EISs) for land use plans designed to provide greater protection to the greater sage-grouse on approximately 50 million acres of BLM-managed land in 10 different western states, more than 40 environmental groups, industry organizations, states, and counties have  filed formal complaints with the BLM, protesting various aspects of the plans.  BLM aims to provide sufficient

By Christopher Garrett & Daniel Brunton

On May 27, 2015, the United States Court of Appeals for the Ninth Circuit upheld the US Bureau of Land Management’s (BLM) grant of a right-of-way over federal land for a road (the Road Project) for a wind energy project developed by North Sky River Energy, LLC (North Sky) on private land (the Wind Project).[1] On the facts before it, the court held that the Wind Project was neither a federal action nor