Project applicants and agencies alike should think carefully about developing robust analyses that demonstrate the adequacy of water supply.

By Marc T. Campopiano, Diego Enrique Flores, and Lucas I. Quass

Mark Twain is often credited with saying, “Whiskey is for drinking; water is for fighting over.” This remains true in California, where drought conditions, climate change, and population growth throughout the state’s history have made water an increasingly valuable and regulated resource. The legal landscape involves complex questions related to water quality, water sustainability, and competing claims to water rights. One notable area of controversy involves the adequacy of water supply for new development projects.

Two decades ago, in 2001, the state legislature enacted Senate Bill (SB) 610 and SB 221 to promote sustainable long-term water planning. Collectively, SB 610 and SB 221 require public agencies to determine whether adequate water supply exists for certain large development projects as part of the environmental review process under the California Environmental Quality Act (CEQA) by, in part, requesting water supply assessments (WSAs) from water service providers.

Fourth and Sixth Circuit decisions give power plant operators additional defenses to citizen suits pending potential Supreme Court review of “groundwater conduit” theory.

By Joel C. Beauvais and Stacey L. VanBelleghem

Over the past month, two US Courts of Appeals have rejected Clean Water Act (CWA) citizen suits seeking to hold power companies liable for discharges of pollutants from coal ash disposal facilities “through” groundwater to waters of the US. Although the Fourth Circuit accepted that discharges through groundwater could be the basis for liability, it held that the relevant ash piles and impoundments were not “point sources” for purposes of the CWA. The Sixth Circuit likewise held that the ash disposal facilities at issue were not point sources, but — contrary to the Fourth Circuit — also held that discharges through groundwater were not actionable under the Act. Collectively, these recent decisions stand as a significant new obstacle to citizen suits against owner/operators of coal ash impoundments. At the same time, the decisions deepen a circuit split on the so-called “groundwater conduit” theory of CWA liability, helping to tee the issue up for possible Supreme Court resolution. If the Court does take this question up, the outcome will be critically important for many industry sectors, including electric power, oil and gas, manufacturing, and mining companies, among others. The CWA imposes strict liability, and citizen suits based on groundwater conduit claims can result in extremely costly remedies — including large civil penalties and injunctive relief.

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.

Upstream entities will need to shoulder more responsibility in the warning process after August 30th.

By Michael G. Romey and Lucas I. Quass

As discussed in Latham’s previous post, August 30, 2018 will mark a significant change in the enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65 (Prop 65). California’s Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for the implementation of Prop 65, published new regulations in 2016 (2016 Regulations) that will adjust how businesses provide what OEHHA deems “clear and reasonable” warnings to consumers about products that may result in an exposure to a chemical listed by the State as potentially causing cancer and/or reproductive harm. Among other obligations, the 2016 Regulations will require businesses to provide consumers with more information about chemicals listed under Prop 65 in consumer products, whether bought online or in person. The 2016 Regulations also explain which entities in the chain of commerce are primarily responsible for compliance with particular Prop 65 requirements.

Specifically, the 2016 Regulations impose more responsibility on upstream entities, such as manufacturers, distributors, packagers, importers, producers, and suppliers (Upstream Entities), shifting the primary burden away from retailers. See CAL. CODE REGS. tit. 27, § 25600.2(a) (2016). This increase in responsibility is based on OEHHA’s understanding that Upstream Entities possess superior knowledge about which chemicals are involved in producing consumer products. The 2016 Regulations also provide retailers with the opportunity to secure legal indemnity via written agreement with Upstream Entities. Id. § 25600.2(i).

This blog post is part of a continuing series on Prop 65 compliance issues aimed at entities within the California chain of commerce, as the 2016 Regulations become effective on August 30, 2018. The 2016 Regulations are applicable to products manufactured on or after August 30, 2018.

Upcoming regulation will require online and catalog retailers to implement product warnings.

By: Michael G. Romey and Lucas I. Quass

Enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop 65), will change significantly on August 30, 2018. Two years earlier, on August 30, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for implementing Prop 65, issued regulations that increased businesses’ responsibility to provide a “clear and reasonable” warning to consumers for products that contain carcinogens and/or reproductive toxicants. Among other requirements, under these new regulations (2016 Regulations) businesses must provide consumers in California with more specific information about potentially harmful chemicals in their consumer products. The 2016 Regulations also specify which entities in the stream of commerce are responsible for providing the Prop 65 warnings and the information that goes into the warnings.

Specifically, the 2016 Regulations will impact online retailers and upstream entities such as product manufacturers, suppliers, and distributers, who under the 2016 Regulations are primarily responsible for Prop 65 warning labels. See CAL. CODE. REGS. tit. 27, § 25600.2(a) (2016).

This blog post is the first in a series to consider several issues as the 2016 Regulations become effective on August 30, 2018. These regulations are only applicable to products manufactured on or after August 30, 2018. If you have further questions about the implementation of the 2016 Regulations, please contact one of the authors or the Latham lawyer with whom you usually consult.

China’s uneven distribution of water sources presents unique difficulties to China as demand for water is increasing rapidly.

By Paul A. Davies and R. Andrew Westgate

China’s water supply problems are well-known globally. However, the main problem facing China is how to distribute its water, rather than lack of water per se. 80% of China’s water supply lies in southern China. But this water cannot be used by the population of 12 Chinese provinces representing 41% of its total population, 38% of Chinese agriculture, 46% of its industry, and 50% of its power generation. Eight of these provinces are currently experiencing acute water scarcity, while in four provinces water is merely “scarce,” and two provinces are largely desert. Moreover, the problem is getting worse, with 28,000 rivers in China having dried up over the past 25 years. And China’s appetite for water continues to grow, with consumption forecast to rise to 670 billion cubic meters a year by the early 2020s.

Adding to the problem is the fact that coal mining is a water-intensive as well as polluting process, and 85% of coal reserves in China are located in provinces where water is scarce and must be shared with a large agriculture industry. Reportedly 20% of all water use in China is for mining, processing, or consumption of coal, and almost 70% is for agricultural purposes. Rapid growth in water demand, combined with a reliance on groundwater drawn from aquifers, has resulted in a new problem — subsidence. This poses a threat to over 50 cities in China and is being closely monitored by the government.