Environment, Land & Resources

Climate Litigation Targets the French Government

Posted in Air Quality and Climate Change, Environmental Litigation, European Environmental and Public Law

Four NGOs launch innovative action claiming state has not met COP21 objectives.

By Paul A. Davies and Michael D. Green

On 17 December 2018, four NGOs filed legal action against the French state. In the legal action, the NGOs argued that the state has not met the short-term climate change objectives set at COP21. The NGOs — Greenpeace France, Oxfam France, the Fondation pour la Nature et l’Homme (FNH), and Notre Affaire à Tous — simultaneously launched an online petition to involve citizens in the action, now nearing an unprecedented two million signatures to date.

In accordance with the French Administrative Justice Code, the procedure for the legal action has two prongs. First, the claimants submitted a preliminary demand (demande préalable) to the Prime Minister and to no less than 12 government members seeking damages for: (i) moral harm, (ii) moral harm suffered by their members, and (iii) ecological prejudice suffered by the environment. (For more information on ecological prejudice, see Latham & Watkins’ blog post “The Notion of ‘Ecological Prejudice’ Now in the French Civil Code”.) If the state does not respond within two months of the preliminary demand, the claimants intend to file an indemnification claim before the Administrative Tribunal of Paris in March 2019. The claimants intend to allege causation between the state’s lack of action and the acceleration of climate change. Continue Reading

California Supreme Court Clarifies Standard of Review for EIRs and Requirements for Air Quality Impact Analyses

Posted in California, CEQA

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

By Marc T. Campopiano, Christopher W. Garrett, Nathaniel L. Glynn, and Natalie C. Rogers

In a published opinion issued December 24, 2018, Sierra Club v. County of Fresno, Case No. S219783, the California Supreme Court determined that an environmental impact report (EIR) prepared and certified by Fresno County (County) for a development project failed to include certain information and analysis required by CEQA. The California Supreme Court held that the EIR did not adequately discuss potential health consequences that could be caused by a significant increase in pollutants resulting from the development project. In summary, the California Supreme Court determined:

  • A discussion of potential environmental impacts in an EIR must include sufficient detail to enable those who did not participate in its preparation to understand and to meaningfully consider the issues raised by the proposed project.
  • The issue of whether a discussion in an EIR is sufficient is a mixed question of law and fact subject to de novo review, though underlying factual determinations in an EIR are subject to a more deferential standard.
  • An EIR must either make a reasonable effort to correlate a project’s significant air quality impacts to potential health consequences, or explain why providing such an analysis is not feasible.
  • A lead agency does not impermissibly defer mitigation if it leaves open the possibility of employing better mitigation efforts consistent with improvements in technology.
  • A lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less-than-significant level, so long as the agency can demonstrate in good faith that the mitigation measures will be at least partially effective in mitigating impacts.

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Katowice Climate Change Conference Agrees on Rulebook for Implementing Paris Agreement

Posted in Air Quality and Climate Change, European Environmental and Public Law

The deal establishes rules and guidelines for how governments will track, report on, and verify emissions-cutting efforts.

By Jörn Kassow and Patrick Braasch

Delegates from 196 countries and the European Union convened in Katowice, Poland, in December for two weeks of negotiations on creating a common rulebook for putting the Paris Agreement into practice.

The Paris Agreement, adopted in 2015, is the first multilateral agreement on climate change that covers almost all of the world’s greenhouse gas emissions. It provides for a long-term goal of limiting global warming to below 2°C above pre-industrial levels and agrees on a general mechanism to implement this goal. However, many practical (and often technical) questions were left open at the time of drafting. As envisaged by the Paris Agreement, the Conference of the Parties (COP) is responsible for developing implementation guidelines to put the climate change goals into action. The Katowice Climate Change Conference (COP24), which was held from December 2 to 15, agreed on a set of rules and guidelines for how governments will track, report on, and verify emissions-cutting efforts. These rules are designed to ensure that all countries are held to common standards and must be transparent when reporting on their efforts and accomplishments in lowering greenhouse gas emissions.

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California Appeals Court: Which Conflicting Limitations Period Applies to CEQA Claim

Posted in CEQA, Environmental Litigation

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

By Christopher H. Norton, Lucas I. Quass and Megan K. Ampe

In a published opinion issued on October 23, 2018, Save Lafayette Trees v. City of Lafayette, Case No. A154168, the California Court of Appeal upheld the trial court’s decision to grant a demurrer without leave to amend with respect to challenges to the substantive and procedural requirements of applicable planning and zoning laws, but reversed with respect to a challenge brought pursuant to CEQA, concluding that the 180-day statute of limitations applicable to CEQA claims applied to the claim filed by Save Lafayette Trees, Michael Dawson, and David Kosters (together Petitioners) alleging non-compliance with CEQA.

In summary, the Court of Appeal determined:

  • If two statutes of limitation of equal authority apply to a claim brought pursuant to CEQA — one contained in a general state planning and zoning law and the other contained in a statute specific to CEQA — and the two cannot be reconciled, the more specific limitations period pursuant to CEQA prevails.

Petitioners filed a petition for writ of mandate challenging the City of Lafayette’s (City’s) approval of a letter agreement allowing a public utility company to remove trees without obtaining a permit. City filed a demurrer, claiming that the petition was time-barred under the 90-day limitations period applicable to zoning and planning decisions under state law. The trial court agreed, sustaining the demurrer without leave to amend. Petitioners appealed. Continue Reading

California Court of Appeal Clarifies Procedural Requirement for Requesting CEQA Petition Hearing

Posted in California, CEQA, Environmental Litigation

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

By Christopher W. Garrett, Daniel P. Brunton, Kimberly D. Farbota, and Natalie C. Rogers

In an unpublished opinion issued May 3, 2018, Endangered Habitats League, Inc. v. City of San Marcos, Case No. D072404, the California Court of Appeal determined that the Endangered Habitats League (Petitioner) substantially complied with procedural provisions of CEQA that require a petitioner to file a written request for a hearing, and the Court of Appeal reversed the trial court’s decision to dismiss Petitioner’s suit.

In summary, the court determined:

  • An oral request for a hearing on the merits of a CEQA petition, followed by written notice to all parties, fulfills the objectives of CEQA’s procedural requirement that a petitioner file a written request for a hearing, such that the substantial compliance doctrine applies.

The trial court dismissed the action based on its belief that the court was foreclosed from applying the substantial compliance doctrine to CEQA’s procedural requirements. Petitioner had orally requested a hearing on the merits of its CEQA action, provided timely written notice to City of San Marcos (City) and the real parties in interest (Real Parties). Petitioner had additionally filed and served a declaration attesting to the request for hearing, but had failed to file a document entitled, “request for a hearing.” Petitioner appealed the dismissal.

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California Court of Appeal Upholds Ruling on Area Plan Modifications

Posted in California, CEQA, Environmental Litigation, Project Siting and Approval

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

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

In an unpublished opinion issued June 19, 2018, Center for Biological Diversity v. County of Los Angeles, Case No. B284427, the California Court of Appeal rejected the Center for Biological Diversity’s (Petitioner) appeal and affirmed the trial court’s denial of a petition for writ of mandate to require the County of Los Angeles (County) to set aside its approval of the modified Antelope Valley Area Plan (Plan) and certification of a program environmental impact report (EIR).

In summary, the court determined:

  • When modifications to an area plan do not constitute “significant new information” or “substantial changes” as compared to the original area plan, an agency need not revise the EIR before certification, recirculate the EIR, prepare a subsequent or supplemental EIR, or prepare an addendum to the EIR.
  • When modifications to a plan do not require an agency to recirculate an EIR, or prepare a supplemental EIR or addendum, the agency is not required to make further CEQA findings or provide an updated statement of overriding considerations.

Petitioner sought a writ of mandate to compel the County to set aside its approval of the modified Plan and certification of the EIR. The trial court denied the petition, finding that the modifications at issue were not significant and that the EIR’s findings related to project impacts remained valid. The Court of Appeal affirmed the trial court’s denial of the petition.

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Cutting-Edge Environmental Advice Profiled by the Financial Times

Posted in California

The Newhall Ranch project in Los Angeles County was highlighted for its proactive and innovative strategy to reduce carbon emissions.

A strategy to gain approvals for the development of the Newhall Ranch community in Los Angeles County — built around the project’s net-zero impact on climate change — was recently featured in a report by the Financial Times that profiled proactive approaches to navigating environmental legal challenges.

The featured article was part of the FT’s annual North America Innovative Lawyers report, which ranks and analyzes creative legal work by law firms and in-house executives based on their originality, leadership, and impact. Continue Reading

UPDATE: LCFS Standards for Diesel and Diesel Substitutes to Revert to Schedule Specified in LCFS Regulation January 1, 2019

Posted in Energy Regulatory

California Air Resources Board lifts freeze on Low Carbon Fuel Standard.

By Joshua T. Bledsoe and Kimberly D. Farbota

On December 7, 2018, the California Air Resources Board (CARB) issued Regulatory Guidance Document 18-02 which lifts the freeze on Low Carbon Fuel Standard (LCFS) diesel and diesel substitute targets previously enacted by CARB in 2017 in connection with the POET I case. The Guidance becomes effective January 1, 2019 at which point the applicable diesel standards will revert to the schedule specified in the current LCFS Regulation.

The freeze, put in place by CARB to comply with a writ of mandate, will now be lifted following the discharge of the writ. As discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by CARB in 2009. In April 2017, the Court of Appeal ruled that CARB failed to faithfully execute a writ of peremptory mandate requiring the agency to properly address nitrogen oxide (NOx) emissions from biodiesel, and in October 2017, the Superior Court issued a modified writ of mandate to reflect the Court of Appeals holding. In accordance with the modified writ, in November 2017 Continue Reading

Why EPA’s Proposed CO2 Standards for New Power Plants Matter

Posted in Air Quality and Climate Change, Energy Regulatory, Power, Oil, Gas and Minerals

EPA’s proposed standards have important implications, even though few coal plants are slated for development.

By Joel C. Beauvais and Stacey L. VanBelleghem

Background

On December 6, the US Environmental Protection Agency (EPA) signed a proposed rule to establish new source performance standards (NSPS) under Clean Air Act Section 111(b) for carbon dioxide (CO2) emissions from new, reconstructed, and modified power plants. The proposal would replace the existing Obama-era standards — which were based on applying partial carbon capture and sequestration (CCS) technology for new coal-fired plants — with significantly less stringent requirements. EPA’s proposal has several important implications for the power industry and other emitting sectors, even though few, if any, new coal plants are expected to be built in the United States in the near future.

EPA’s Current and Proposed CO2 Standards: A Comparison

EPA’s proposal would establish new emission limits, based on the “best system of emission reduction” (BSER) identified by the agency, for new, reconstructed, and modified coal-fired steam electric generating units (EGUs). For natural gas-fired combustion turbines, EPA proposes no changes to the 2015 Obama-era rule. Continue Reading

California Court of Appeal Dismisses Time-Barred Challenge to Development Phase

Posted in California, CEQA, Environmental Litigation, Project Siting and Approval

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.

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