Environment, Land & Resources

How to Prepare for California’s Updated Prop 65 Regulations … 60-Second Overview

Posted in California, Water Quality and Supply

Companies may need to carefully consider practical business concerns to comply with the updated Prop 65 regulations, effective August 30.

By Michael G. Romey, Lucas I. Quass, and James A. Erselius

New regulations governing the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) will go into effect on August 30, 2018 that apply to products manufactured after the operative date of August 30, 2018. The new regulations update the content of the Prop 65 warning label that appears on products, in addition to other substantive changes.

Below is one example of how the new warning may look; however, the exact content will depend on the specifics of the exposure in question. Continue Reading

California Court of Appeal Rejects City’s MND in Historic District Due to Aesthetic and Traffic Impacts

Posted in California, CEQA, Project Siting and Approval

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

By Winston P. Stromberg, Lucas Quass and Christopher Adam Martinez

In an opinion published on August 9, 2018, Protect Niles v. City of Fremont, Case No. A151645, the First Appellate District of the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate ordering the City of Fremont (the City) to overturn a Mitigated Negative Declaration (MND) and prepare an Environmental Impact Report (EIR) for an 85-unit residential and retail development in a historical district (the Project).

In summary, the court determined:

  • A project’s visual impact on an officially designated historical district is appropriate to review as a potential aesthetic impact under CEQA.
  • The City’s Historical Architectural Review Board members’ collective opinions about the compatibility of the Project with the Niles Historical Overlay District are substantial evidence of the Project’s potentially significant aesthetic impacts.
  • Residents’ personal observations of traffic conditions where they live and commute may constitute substantial evidence, even if residents’ accounts contradict the conclusions of a professional traffic study.

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Viewpoints Video Examines California’s Cap-and-Trade Program

Posted in Air Quality and Climate Change, California, Environmental Regulation, Power, Oil, Gas and Minerals, Project Siting and Approval

Harvard professor Robert Stavins joins Latham partner Bob Wyman to review key climate change mitigation policies.

California’s climate change mitigation program is widely viewed as one of the most comprehensive of its kind — encompassing a cap-and-trade component and a series of complementary measures with specific performance targets for important sectors such as motor vehicles, transportation fuels, power plants, and emissions related to land use decisions.

In this Viewpoints video, Latham partner Bob Wyman, a leader in the firm’s Environment, Land & Resources Department, discusses unique aspects of the California program with Harvard University professor Robert Stavins, the A.J. Meyer Professor of Energy & Economic Development at the John F. Kennedy School of Government.

The two veterans of climate change policy explore the purpose and design of climate change programs in California and globally that deliver environmental performance at lower cost, and they explain key terms such as a price ceiling, “speed bumps,” and the banking of carbon emissions allowances.

Latham Viewpoints is a video series spotlighting hot topics in the practice and business of law.

Interior Department Solicits Comments on Natural Resource Damage Assessment Regulations

Posted in Environmental Litigation, Environmental Regulation, Water Quality and Supply

Officials seek to “improve the efficiency and cost effectiveness” of NRDAs — which could help expedite the resolution of claims.

By Janice M. Schneider, Gary P. Gengel, Joel C. Beauvais, Kegan A. Brown, and Thomas C. Pearce

On August 27, 2018, the US Department of the Interior (DOI) issued an Advance Notice of Proposed Rulemaking (ANPR) requesting comments by October 26, 2018 on potential changes to its natural resource damage assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This law authorizes federal, state, and tribal trustees to recover natural resource damages (NRD) for injuries to natural resources resulting from hazardous substance releases. NRDAs that follow the DOI regulations are entitled to a rebuttable presumption of validity in later court proceedings.

In the ANPR, DOI seeks input on how to “improve the efficiency and cost effectiveness” of NRDAs and accelerate restoration of injured natural resources. While there are many areas in which to improve the regulations that will be considered, DOI specifically requests comment on the following six issues:

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California Court of Appeal Ruling Exempts Parking Requirements From CEQA Review

Posted in California, CEQA, Project Siting and Approval

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

By Christopher W. Garrett, Daniel P. Brunton, Natalie C. Rogers, and Roopika Subramanian

In a published opinion issued February 28, 2018, Covina Residents for Responsible Development v. City of Covina, Case No. B279590, the Court of Appeal affirmed the trial court’s judgment and upheld the City of Covina’s (the City) approval of a 68-unit mixed-use infill project (Project). In summary, the court determined:

  • An EIR must address secondary parking impacts caused by traffic congestion, but parking impacts, in and of themselves, are exempt from CEQA review.
  • An agency is permitted to tier from a specific plan EIR if (1) the proposed action falls under an exemption, or (2) potential project impacts have been adequately analyzed and mitigated in the specific plan EIR.
  • In determining whether to approve a tentative map for a project, local agencies must make findings showing the proposed map’s compatibility with objectives, policies, and programs in the specific plan, but need not show perfect conformity.

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D.C. Circuit Strikes Down EPA Coal Ash Rule Provisions

Posted in Air Quality and Climate Change

Decision may significantly impact active and inactive unlined and clay-lined coal ash impoundments, likely requiring closure or retrofit.

By Claudia M. O’Brien and Stijn van Osch

The D.C. Circuit this week struck down parts of the Environmental Protection Agency (EPA) Coal Combustion Residuals (CCR) rule for not being sufficiently protective of the environment. The decision in Utility Solid Waste Activities Group (USWAG) et al. v. EPA, No. 15-1219 (D.C. Cir. Aug. 21, 2018) will have a major impact on both active and inactive coal ash impoundments used by coal-fired power plants. Although the timing is uncertain, the Court’s opinion will likely require closure or retrofitting of all unlined and clay impoundments, unless EPA is able to address the Court’s concerns on remand. Continue Reading