environmental litigation

Decision concludes a permit is required if such discharges are the “functional equivalent” of a direct discharge to navigable waters.

By Janice Schneider, Maria Hoye, and Ethan Prall

On April 23, 2020, the Supreme Court of the United States issued an opinion in County of Maui, Hawai’i v. Hawai’i Wildlife Fund, holding that the Clean Water Act (CWA) requires a permit for certain discharges through groundwater. Specifically, a permit is required if there is a “direct discharge” from a point source to navigable waters, or if a given discharge is the “functional equivalent” of a direct discharge when that discharge passes through groundwater before reaching navigable waters.[1]

In establishing this new functional equivalence test, the Court rejected both the argument that allowing any regulation of discharges through groundwater would expand the CWA’s scope without warrant, and the contrary argument that every discharge that is “fairly traceable” from a point of discharge to navigable waters must be regulated under the CWA. When applying the test, the Court explained that several factors — most centrally, time and distance — are relevant to determining whether a discharge through groundwater is the functional equivalent of a direct discharge.

A new webcast reveals the latest trends and approaches to CEQA compliance as the development and environmental communities react to changing law.

By Marc T. Campopiano, Christopher W. Garrett, and Jennifer K. Roy

On July 24, 2019, Latham & Watkins’ Project Siting & Approvals Practice hosted a 60-minute webcast, “Friant Ranch: Impact of California Supreme Court’s Landmark Decision on CEQA Compliance,” to zero in on the landmark decision and its ramifications. Seven months on from the Court’s decision

ECJ Decision Examines Definition of ‘Waste’ for Transboundary Consignments

Request for preliminary ruling from the Hague Court of Appeal confirms that the concepts of “waste” and “discard” must be interpreted broadly.

By Paul A. Davies and Michael D. Green

The European Court of Justice (ECJ) recently handed down its judgment in response to a request for a preliminary ruling in criminal proceedings against Tronex BV (Case C-624/17), a Dutch wholesaler of residual consignments of electronic goods. The case concerns the transboundary shipment of electronic and electrical appliances to a third party in Tanzania.

This blog will examine the legislative framework and facts underpinning the case, and the ECJ’s discussion and decision.

2018 Year in Review: Public agencies prevailed in 65% of CEQA cases analyzed.

By James L. Arnone, Marc T. Campopiano, Christopher W. Garrett, and Lucinda Starrett

Over the course of 2018, Latham & Watkins lawyers reviewed all 57 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion of the patterns that emerged in these cases. Latham will continue to monitor CEQA cases in 2019, posting summaries to this blog.

The California Court of Appeal heard 55 CEQA cases, while the California Supreme Court heard one case: Sierra Club v. County of Fresno. This case concerned what constitutes sufficient detail in an environmental impact report (EIR) and has implications for the preparation of EIRs as well as judicial review of agency decisions certifying EIRs.

In addition to the 56 state cases, one federal CEQA case, AquAlliance v. U.S. Bureau of Reclamation, was heard by the Eastern District of California.

The growth in the level of undertakings throughout 2018 tallies with a general increase in environmental enforcement.

By Paul A. Davies and Michael D. Green

The Environment Agency has released data indicating that enforcement undertakings in England and Wales reached more than £2.2 million in 2018 — the highest-ever levels within a single year. The amounts raised under these undertakings were given to projects and charities that will benefit the environment and assist in cleaning up parks, rivers, and beaches. In addition, the enforcement undertakings include voluntarily agreed binding commitments to carry out remediation and/or other corrective action.

Enforcement undertakings are voluntary, legally binding agreements that regulators can use if they have reasonable grounds to suspect that an offence has been committed. These undertakings are one of the enforcement tools available to the Environment Agency, Natural England, and Natural Resources Wales in relation to potential environmental offences. Such offences include those relating to breaches of environmental permitting regulations, breaches under producer packaging requirements, and breaches of regulations concerning the discharge of wastewater.

By Kimberly D. Farbota, Jennifer K. Roy, and Christopher Garrett

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

In an unpublished opinion issued August 28, 2018, Forest Preservation Society v. Department of Forestry and Fire Protection, Case. No. SCUK-CVPT-15-66284, the California Court of Appeal affirmed the trial court’s judgment and upheld the California Department of Forestry and Fire Protection’s (Cal Fire’s or Department’s) approval of a Timber Harvest Plan (THP 80) proposed by real party in interest Mendocino Redwood Company (MRC). Petitioner Forest Preservation Society (Petitioner) requested for writ of mandate, arguing that the Department:

  • Used an improper baseline for evaluating the impacts of THP 80 on climate change
  • Showed no substantial evidence to support its finding that THP 80 would not significantly impact climate change
  • Failed to fulfill its duty to create an enforceable mitigation and monitoring plan to alleviate the impacts on climate change

The trial court rejected these arguments and denied the petition, and the Court of Appeal upheld the denial. In summary, the Court of Appeal determined:

  • The Department did not abuse its discretion by relying on the California Air Resources Board’s Climate Change Scoping Plan — rather than the state’s 2020 and 2050 greenhouse gas (GHG) emission reduction targets — as the threshold of significance for evaluating the cumulative impacts on climate change resulting from project-related GHG emissions.
  • Substantial evidence, in the form of analyses showing that growth was scheduled to outpace logging across MRC’s ownership, supported the Department’s finding that the project’s cumulative impacts on global warming would be insignificant.
  • The Department does not have a duty to enforce mitigation and monitoring of potential impacts on climate change if there are no significant cumulative impacts. Additionally, THP 80 requires that all future MRC timber-harvesting plans and projects be subject to environmental review.

Individuals join growing global trend of citizens bringing climate change litigation in a bid to hold governments to account.

By Paul A. Davies and Michael D. Green

The European General Court has agreed to hear a legal challenge to EU climate legislation for inadequate targets for reducing climate change. Ten families from around the world brought a petition claiming that EU legislation offered insufficient protection, posing a threat to their human rights. The European Parliament (EP) and European Union Council (Council) likely will respond to the petition within approximately eight weeks.

The case is unprecedented in the EU. The 10 families include citizens from Kenya, Fiji, Portugal, Germany, France, Italy, Romania, and the Saami Youth Association Saminuorra (in Sweden). Significantly, though some of these individuals live outside the EU, they are claiming to have EU human rights. This is because the actions that they claim breach these rights take place in the EU, in particular, as a result of excessive greenhouse gas emissions. EU Member States are cumulatively the third largest global emitter of greenhouse gases (GHG).

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

By Christopher W. Garrett, Daniel P. Brunton, Diego Enrique Flores, and Samantha K. Seikkula

In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the trial court’s judgment denying Responsible Development for Water Tank Hill’s (Petitioner’s) petition for writ of mandate, finding that the County of San Mateo (County) had properly analyzed the potential environmental impacts of San Mateo Real Estate, Inc.’s (Developers’) proposed housing development (Project) and that the County’s determinations were supported by the substantial evidence. In summary, the court determined:

  • An EIR’s analysis of noise impact should be site-specific and should consider qualitative factors as well as technical factors
  • When an EIR finds, based on substantial evidence, that an impact would be less-than-significant, further mitigation is not required.
  • An agency may rely on statewide emissions-reduction goals when determining mitigation measures to reduce a project’s significant GHG impacts.

Background for Appeal

After several rounds of public comment, the San Mateo County Planning Commission (Commission) approved the Project. The County Board of Supervisors denied an appeal of the approval and upheld the Commission’s decision. Petitioner then filed a petition for writ of mandate seeking to set aside the Project approvals as inadequate under CEQA. Petitioner argued that the approvals were inadequate because:

  • The environmental impact report (EIR) failed to adequately analyze impacts
  • The County failed to adopt feasible mitigation measures
  • The County’s findings were not supported by substantial evidence
  • The County failed to recirculate the final EIR after making changes that constituted significant new information

The trial court rejected Petitioner’s specific challenges to the County’s environmental analysis of air quality, aesthetics, hydrology, and noise, finding that the County had properly analyzed the potential environmental impacts of the Project and that the County’s determinations were supported by substantial evidence. Petitioner appealed the decision with respect to air quality and noise.

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

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, John D. Niemeyer, and Samantha K. Seikkula

In an unpublished opinion issued February 20, 2018, Advocates for Better Cmty. Dev. v. City of Palm Springs, Case No. E066193, the California Court of Appeal dismissed as moot an appeal from the trial court’s judgment and upheld the City of Palm Springs’ (City’s) decision to approve changes to a planned development in downtown Palm Springs. In summary, the court determined:

  • On appeal, a CEQA challenge is moot where, due to events that occur while the appeal is pending, the court is no longer able to grant effective relief

Advocates for Better Community Development (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to invalidate the City’s addendum to an environmental impact report (EIR) for the changes to the planned development. Petitioner argued that that the City’s approval was inconsistent with the Museum Market Plaza Specific Plan (Specific Plan) and that the approval violated CEQA because the changes were substantial and required additional environmental review. The court held that these issues were moot due to an ordinance that the City passed modifying the Specific Plan before Petitioner filed its notice of appeal.