On Tuesday, the Second District Court of Appeal issued its decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, ruling that a lead agency’s use of projected future conditions to measure the environmental impacts that a long-term infrastructure project will have on traffic and air quality did not violate the California Environmental Quality Act  (CEQA).  The court’s decision places it in fundamental disagreement with the rulings of the Sixth District and Fifth District Court of Appeals, which have each held that lead agencies are required by CEQA to evaluate project impacts against actual existing environmental conditions, and that agencies do not have the discretion to solely assess project impacts against future conditions expected to exist at the time a project will come into operation.  Although the decision is positive news for the many public agencies that historically engaged in this type of impact analysis to assess traffic and air quality impacts for long-term projects, the defensibility of CEQA documents that solely rely on projected future baselines will remain uncertain until the California Supreme Court takes the issue up for review.

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The Supreme Court recently issued its opinion in the closely watched case of PPL Montana, LLC v. State of Montana, 565 U.S. __ (2012), unanimously reversing and remanding a controversial Montana State Supreme Court decision granting Montana ownership of riverbeds underlying ten hydroelectric facilities on three of the state’s rivers.  The Supreme Court’s ruling relieved PPL of its obligation to pay the state of Montana $41 million in back rent for use of the riverbeds, and likely quelled any fears in the hydropower industry that similar ownership theories would be advanced by other states seeking to fill empty coffers with millions of dollars in back rental payments.  The Supreme Court’s opinion, while providing clarity on the proper application of the federal navigability-for-title test, limits its reasoning on navigability to those instances in which property rights between the states and the federal government are in question, and is explicitly inapplicable to determinations of whether waters are “navigable” for purposes of federal regulatory programs.

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Recently, Honorable Judge Ronald M. Gould, writing for a panel of the Ninth Circuit Court of Appeals, found the Environmental Protection Agency’s (“EPA”) 2010 approval of the San Joaquin Valley’s 2004 1-hour ozone National Ambient Air Quality Standard plan (“2004 SIP”) was arbitrary and capricious, citing EPA’s failure to adequately address the potential staleness of mobile source emissions data used to formulate the plan’s emissions inventory.  The court’s decision invalidates EPA’s approval of the plan and requires the agency to conduct its review process anew.  The case potentially signals EPA’s more stringent review of the accuracy and currency of emission inventories during its plan approval process. 

Following EPA’s approval of the 2004 SIP, Sierra Club and several environmental groups petitioned the Ninth Circuit Court Appeals to review EPA’s approval on the basis that mobile source data, current at the time the plan was submitted to EPA in 2004, was outdated and inaccurate by the time the plan, which was amended in 2006 and clarified in 2008, was approved in 2010.  During the six-year period between plan submission and approval, California had replaced the computer modeling tool it used to estimate mobile source emissions with the next generation of that modeling tool, which was better able to capture emissions from heavy-duty trucks.  Also during that time period, California had presented EPA with the Valley’s 2007 SIP for the 8-hour ozone standard (“2007 SIP”), which relied on data compiled through the use of the updated tool.  The court noted that a comparison of the emissions inventories in the 2004 and 2007 plans revealed apparent disparities in emissions estimates for nitrogen oxides (NOx), with the 2004 SIP potentially underpredicting total daily NOx emissions in the Valley.  In the court’s opinion, these disparities, which the court attributed to the state’s change in modeling tools, undermined the accuracy and currency of the 2004 SIP emission inventory data.

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Environmental groups filed suit last week in California federal court against the United States Environmental Protection Agency (EPA) alleging the agency failed to adequately regulate a federal ship sinking program, which the groups assert pollutes the sea with toxic polychlorinated biphenyls (PCBs).

The federal program, known as SINKEX, allows the Navy to engage in live fire exercises on decommissioned naval warships to practice gunnery, torpedo accuracy, and missile drills, while simultaneously disposing of obsolete ships. Basel Action Network (BAN) and the Sierra Club allege in their complaint that the ship disposal activities of the federal program pose a substantial and unreasonable risk to human health and the environment because PCBs present in electrical cable insulation, fiberglass bulkhead insulation, paints, adhesives or rubber mounts and gaskets aboard the old vessels eventually leach into the marine environment. Once these PCBs enter the marine environment they accumulate in the bodies of fish and other marine organisms that humans consume.

The groups have asked the court to compel EPA to initiate rulemaking under the Toxic Substances Control Act (TSCA), which authorizes EPA to regulate the disposal of PCBs, to more stringently regulate the Navy’s remediation of vessels designated for sink exercises, or, alternatively, to revisit the program’s ocean dumping permit.

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