environmental regulation

The decision gives landowners and developers a powerful tool to protect their interests and raises the bar for future critical habitat designations in unoccupied habitat.

By Janice Schneider, Nikki Buffa, and Brian McCall

The Supreme Court’s unanimous ruling in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. (2018) has important implications for landowners facing “critical habitat” designations under the Endangered Species Act (ESA) for areas that are unoccupied by listed species. The timing of this decision likely means the US Fish and Wildlife Service (FWS) will incorporate it into forthcoming final regulations the FWS is currently promulgating.

Background

In Weyerhaeuser, the US Supreme Court considered two main questions:

  • Can critical habitat include areas where the species cannot currently survive?
  • Is the FWS determination not to exclude a particular piece of land as critical habitat reviewable by a court?

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 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

Consultation document proposes replacing the European Commission with a new environmental watchdog, among other recommendations.

By Paul A. Davies and Michael D. Green

The UK government has announced a consultation in relation to the proposed new Environmental Principles and Governance Bill, which aims to ensure maintained and strengthened environmental protection following the UK’s exit from the EU. While this particular consultation, which was announced on 10 May, relates to England, the government has indicated that it will “… work closely with devolved administrations on common frameworks”. The government’s intention is to “… ensure we leave our environment in a better state than we inherited it”. The planned publication date for the Bill is this autumn.

The consultation document includes three parts:

  • Part 1 relates to the effect of environmental principles enshrined in both international and EU law, and how England’s statutory framework could incorporate these principles.
  • Part 2 addresses the idea of establishing a new watchdog to hold the government to account in relation to environmental protection.
  • Part 3 explores what the exact function and role of the new watchdog would be, as well as the responsibilities of government and Parliament in developing policy and law, along with the Environment Agency’s and Natural England’s role in implementing such policies.

Long-awaited 25-year environment plan aims to “restore” nature and eliminate plastic waste.

By Paul Davies and Michael Green

The UK government has announced its long-awaited 25-year environment plan (the ‘Plan’).

Having originally said it would publish the Plan by the end of 2016, the Department for Environment, Food & Rural Affairs (Defra) subsequently delayed the release, raising concerns that the Plan might not come to fruition until after Brexit. In 2017, Defra requested input from the Natural Capital Committee (NCC), which was duly published in September of last year. The NCC suggested a number of ambitious goals that should be included in the Plan, such as the remediation of all historical land contamination and that air quality throughout the UK should meet international health-based standards.

By Paul Davies, Michael Green and Alice Gunn

Powerday plc was issued a record fine in April this year for offences relating to operations involving over 17,000 tonnes of waste deposited and stored illegally. Powerday – one of the biggest waste-management companies in the South-East of England – pleaded guilty and was subsequently fined £1 million, in addition to £243,955 in costs by the court.

This case is demonstrable of the courts’ increasing willingness to issue significant fines for environmental offences. Whilst notable, the Powerday case (and fine) is no longer uncommon – Yorkshire Water faced a similar fine for sewage pollution offences this year while Thames Water was found guilty in January this year of two counts of breaching environmental regulations, resulting in a £1 million fine plus additional costs.

By Paul Davies, Andrew Westgate and Alice Gunn

China’s Ministry of Industry and Information Technology (MIIT) has recently announced a revised version of the Restriction of Hazardous Substances (RoHS 1), which will come into effect on July 1, 2016.

The revised legislation (RoHS 2) has significant implications for domestic and international companies manufacturing electrical and electronic products in China (including component parts), or those importing such products into China.

By Marc Campopiano and Max Friedman

On May 18, 2015, the federal agencies that oversee the enforcement of the Endangered Species Act, the US Fish and Wildlife Service and National Marine Fisheries Service proposed significant changes to the process by which parties can petition for the listing of species as protected under the Act or the designation of critical habitat.

The proposed new rules, for which 60 days of public notice and comment will commence upon their publication in