environmental litigation

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The European Commission will submit a study and a proposal to reassess individuals’ right to challenge crucial decisions before EU courts.

By Rosa Espín and Leticia Sitges

The Council of the European Union (the EU) has recently issued a formal decision requesting that the European Commission submit a study to identify options for addressing identified non-compliance with the United Nations Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters dated 25 June 1998 (the Aarhus Convention). Additionally, to submit a proposal, if appropriate, to amend the current EU Regulation 1367/2006 (together, the Decision).

What is the Aarhus Convention?

The Aarhus Convention is a multilateral environmental agreement that will guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters. The three pillars of the Aarhus Convention are as follows:

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…

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

CEQA Case Report: Understanding the Judicial Landscape for Development[1]

In a published opinion issued January 12, 2018, Heron Bay Homeowners Assn. v. City of San Leandro, the California Court of Appeal affirmed the trial court’s partial grant of Heron Bay Homeowners Association’s request for attorneys’ fees following its successful CEQA suit against the City of San Leandro (the City). In summary, the court determined:

  • The financial burden of enforcement the homeowners association faced made an award appropriate under California Code of Civil Procedure (CCP) section 1021.5.
  • A successful CEQA litigant is not disqualified from an award of attorneys’ fees if the financial benefit at stake in the litigation was uncertain compared to a substantial financial burden.

The petitioner, the homeowners association, had filed a petition for writ of mandate seeking to invalidate the City’s approval of Halus Power Systems’ (Halus’) proposed project to install a single 100-foot-tall wind turbine on Halus’ property for renewable power generation and on-site research and development (the Project). The petitioner also sought to compel the City to prepare an environmental impact report (EIR) instead of the mitigated negative declaration (MND) the City had initially prepared. The petitioner argued the Project as mitigated would have significant environmental impacts on views, birds and their habitats, aircraft navigational radar, noise and vibration levels, and property values. The trial court found substantial evidence supported a fair argument that the Project as mitigated would have significant environmental impacts and directed the City to set aside its approvals until the City prepared and approved an EIR. Halus ultimately decided not to proceed with the Project.

Webcast addresses recent EPA and DOJ policy developments with important implications for permitting, enforcement, and litigation.

By Joel C. Beauvais, Julia A. Hatcher, Karl A. Karg, Claudia M. O’Brien, and Stacey L. VanBelleghem

Latham’s Environment, Land & Resources Department hosted a 60-minute webcast on March 29, “New Trump Administration Policies on Environmental Enforcement, Settlements, and Clean Air Act Implementation.” Partners provided an overview of important policy clarifications and changes arising in recent months — including the…

Significant English Supreme Court decision overturns High Court and Appeal Court ruling on personal injury compensation.

By Paul A. Davies and Michael D. Green

Three former employees of a chemical company appealed against the decisions of the High Court and the Court of Appeal that held they could not claim against their employer for damages for personal injury.

Johnson Matthey, the respondent employer, allegedly failed to properly clean the areas in which three of its employees worked and, as a result, they developed a sensitivity to platinum salts whilst working on the production of catalytic converters. Two of the men were dismissed on medical grounds and the other was given a lesser paid position as a result. The sensitivity was discovered after a routine skin prick test was carried out.

By Joern Kassow and Patrick Braasch

Latham has previously written about the Lliuya v. RWE AG case, in which a Peruvian farmer has sought damages from German energy giant RWE for climate change effects in his home country. The Higher Regional Court of Hamm indicated during oral hearings that it would likely proceed to take evidence. The court has since issued its decision, providing further insight and analysis of the case.

RWE claimed that it could not be held liable for damages, as the company held valid environmental permits under emission control regulations relating to the operations of its material CO2 emitting plants — and therefore the emissions were legal. However, the court rejected RWE’s claim, noting that Mr. Lliuya did not seek to shut down or limit RWE’s operation of business. The court further explained the fundamental legal principle that anyone who causes damages to third party property — even through lawful acts — generally may be liable. That RWE obtained, and presumably complied, with all required permits under German environmental law would therefore not preclude liability for the potential damage caused by the company’s lawful emissions.