Articles on Environmental Litigation

 

CEQA Lead Agencies Do Not Waive Defense that CEQA Did Not Apply Despite Proceeding under CEQA

Environmental Litigation

cityscapeRecently, the court in Rominger v. County of Colusa found that a lead agency which approved a mitigated negative declaration for a project, can take the seemingly inconsistent position that the proposed project was not a California Environmental Quality Act (CEQA) project or was exempt from CEQA when its action is subsequently challenged.

In Rominger, real party in interest Adams Group, Inc. filed an application with the County of Colusa for the approval of a tentative subdivision map to divide 4 existing parcels into 16 parcels.  The application indicated that no specific plan for future expansion was available and that they intended to continue the existing use of the property.  The County prepared an initial study and issued a mitigated negative declaration under CEQA.

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Substantive Dispute over Land Application of Biosolids Remains Unresolved

Environmental Litigation

LandfillForm over substance continues to obscure the substantive issue presented in the case of the City of Los Angeles (City) vs. Kern County (County). At its core, the dispute involves the land application of biosolids. Biosolids are organic material produced during the processing and treatment of wastewater. Historically, waste by-products like biosolids were disposed of in a landfill or were incinerated. With environmental concerns on the rise, more sustainable practices have been identified to dispose of biosolids, one of which includes land application.

The dispute between the City and County over the land application of biosolids began in the early 1990s when the City began working with County farmers to utilize biosolids in land application as fertilizer for crops. After several years of successful land application, residents of the County passed a measure banning the practice. The practice was successfully portrayed as the City disposing of its waste in the County rather than keeping the waste in the City. Residents of the County overwhelmingly passed the measure and the City sued to block implementation of the measure. Years of protracted litigation between the City and County culminated in the most recent decision by the California Supreme Court (Court).

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City’s Decision to Not Prepare an EIR Upheld Under Substantial Evidence Standard

Environmental Litigation

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Earlier this month, in Latinos Unidos De Napa v. City of Napa, the California Court of Appeals upheld the city of Napa’s determination that it did not have to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) when enacting minor changes to its general plan and zoning ordinances.

Napa prepared a program EIR prior to adopting its comprehensive update of its general plan in 1998.  The general plan set forth Napa’s future plans for development through the year 2020.  The program EIR analyzed the impacts of future projected growth within the city through the same time period.  Although the future housing element was not updated at that time, the program EIR analyzed the impacts of the existing housing elements.

In 2009, Napa began the process of updating its housing element and prepared an initial study under CEQA.  Among other things, the initial study analyzed the extent to which the changes contemplated by the adoption of the housing element could result in new or different environmental impacts not already analyzed with respect to the general plan.  Based on this review, the city determined that the project was within the scope of the program EIR and required no further environmental review.

Petitioner, Latinos Unidos de Napa, brought a challenge contending that the city did not comply with CEQA because a new EIR was needed in connection with its adoption of the housing element.  The court applied the substantial evidence test and determined only whether the administrative record as a whole provided substantial evidence to support the city’s determination that the changes in the project or its circumstances were not so substantial as to require major modifications to the EIR.  The court found that Napa’s determination was supported by substantial evidence because no aspect of the project involved approval of any actual development or other activity.  The project merely consisted of limited amendments to the housing element and land use element of the general plan and minor amendments to the city’s zoning ordinance.  In finding that Napa’s decisions were supported by substantial evidence, the court reiterated that it is the petitioner that bears the burden and must cite to all relevant evidence.

Given the expense that an EIR can be for a city to conduct, this case helps define instances in which such an expense can be saved.  The case also highlights the importance for cities to support its decisions not to prepare an EIR in the administrative record, since that will be the focus of the court’s analysis.

LITIGATION UPDATE: Writ of Certiorari filed in Solutia, Inc. v. McWane, Inc.

Environmental Litigation

Recently, Solutia Inc. and Pharmacia Corporation filed a petition for writ of certiorari with the U.S. Supreme Court seeking to overturn the Eleventh Circuit’s ruling that a Potentially Responsible Party (“PRP”) conducting a cleanup pursuant to a consent decree is foreclosed from bringing a cost recovery action against other PRPs under CERCLA Section 107, and may only seek contribution from other parties under CERCLA section 113.  This ruling is significant because 1) unlike CERCLA section 107, section113 does not provide for joint and several liability against other PRPs, 2) under CERCLA section 113, PRPs that settle with the government are given contribution protection, and 3) the statute of limitations under section 107 and section 113 differs.

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LITIGATION UPDATE: CALIFORNIA SUPREME COURT GRANTS REVIEW OF L.A. LIGHT RAIL CASE

Environmental Litigation

On August 8th, the California Supreme Court granted review of the Second District Court of Appeal’s decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority.  As previously blogged in April, the Second District found that a lead agency’s use of projected future conditions to measure the environmental impacts that a long-term infrastructure project would have on traffic and air quality did not violate the California Environmental Quality Act (CEQA).  The Second District’s decision put it at odds with holdings of the Fifth and Sixth District Court of Appeals, making the issue of whether CEQA prohibits the use of projected future baselines ripe for review.

Public agencies have long argued that using current-conditions to measure the impacts of major infrastructure projects that will not be completed for many years to come is not helpful in determining the true traffic and air quality impacts the project will have once operational.  The California Supreme Court will now decide whether CEQA allows public agencies to have the discretion to select a future baseline for long-term projects.  Our blog will keep you updated on the court’s decision.

CVS Settles Hazardous Waste Suit

Environmental Litigation

In a settlement reached in mid-April, CVS Pharmacy Inc. (CVS) agreed to pay almost $14 million to settle claims that it improperly stored and disposed of hazardous waste at its drugstores in California. 

In a suit brought in Ventura County Superior Court, prosecutors representing 45 cities and counties across California, alleged that CVS violated California’s Hazardous Waste Control Law (HWCL) (commencing at Health and Safety Code sections 25100 et seq.) and other laws through its improper storage and disposal of various medical, pharmaceutical and photographic waste.  California’s HWCL is California’s state counterpart to the federal Resource Conservation and Recovery Act (RCRA).  HWCL has a broad impact and regulates hazardous waste from cradle (generation) to grave (disposal).  In addition to the monetary payment, the settlement agreement also requires CVS to properly store, dispose and record hazardous waste in the future and train its employees regarding these requirements.   

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Parties Can Toll CEQA Statute of Limitations

Environmental Litigation

Last week, in Salmon Protection and Watershed Network v. County of Marin, the California Court of Appeals found that a public agency and a party disputing the adequacy of an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) can enter into a tolling agreement to toll or suspend the CEQA statute of limitations. 

Petitioner SPAWN sought to challenge under CEQA the County of Marin’s general plan update on the grounds that the EIR’s cumulative impacts analysis was inadequate.  Generally, there is a short statute of limitations for challenging a public agency’s actions under CEQA.  Under California Public Resources Code section 21167, a petitioner only has 30 days from the date of the public agency’s filing of a notice of determination to challenge an EIR on the grounds that it does not comply with CEQA.  In an attempt to negotiate a pre-filing settlement, SPAWN and the County entered into a series of tolling agreements extending this 30-day limitation period.  However, when a settlement could not be reached, SPAWN brought its CEQA petition.

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Second Appellate District Approves Use of Projected Future Baseline to Measure Environmental Impacts in L.A. Light Rail Case

Environmental Litigation

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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Sackett v. EPA – Supreme Court Allows Pre-Enforcement Review of Clean Water Act Compliance Orders

Environmental Litigation

On March 21st, the United States Supreme Court unanimously ruled that the Sackett family has a right to challenge a pre-enforcement compliance order from the Environmental Protection Agency (EPA)before EPA initiates a formal enforcement action in Sackett v. EPA.

The Sacketts own about a half-acre vacant parcel of land in Idaho.  In early 2007, they filled the parcel with dirt and rock in preparation for building a house.  Later that year, EPA issued an administrative compliance order against the Sacketts alleging that the parcel of land is a wetland subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without obtaining a permit.  EPA ordered the Sacketts to return the land to its former condition or face over $30,000 in penalties per day for failure to comply.

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Supreme Court Settles Riverbed Battle

Environmental Litigation

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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