Monthly Review and Thank You!
We wanted to thank each of you for continuing to read our blog and keeping our firm in mind for your land use, environmental, and real estate legal matters. We recognize this has been an unprecedented year for so many reasons, and we are grateful for your time. With that said, all of us at Abbott & Kindermann, Inc. wish all of you a happy, healthy, and fruitful 2021. We would like to ring in this last day of 2020 by welcoming you to Abbott & Kindermann, Inc.’s December Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2020.
PREVIOUS MONTH’S UPDATE
To read the November 2020 Environmental Action News post, click here:
There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:
County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?
WATER RIGHTS AND SUPPLY
- Antelope Valley Groundwater Cases v. California Water Services Company (December 9, 2020) 2020 Cal. App. LEXIS 1166.
The Court of Appeal affirmed a trial court decision, holding that a water district did not acquire appropriative rights by pumping water for municipal purposes in declaration of water for the public. The Court held that appropriative rights cannot be claimed by municipal supplies to acquire a corollary right that does not exist. The Court points to Water Code Section 103, and states that the legislature did not intend for municipalities to be allowed to withdraw water for general public use in an aquifer. The Court further held that the current case law affirmed the legislative intent and held that there is no acquisition of appropriative rights merely by constructing a facility and diverting water for public use.
- Malaga County Water Dist. v. Cent. Valley Reg’l Waterquality Control Bd., (December 10, 2020) 2020 Cal. App. LEXIS 1171.
The Court of Appeal reversed and remanded a suit brought by a county water district holding that an increase in permissible water flow from a waste discharge plan is a matter of broad public interest and not moot. The Court looked at whether the verification process included in Malaga’s permit was an improper delegation of authority from the Water Quality Board to its executive officer. The Court found that it was an improper delegation of authority. The Appellate panel held that the NPDES permit that the Water Quality Board issued improperly modified the terms of an effluent discharge limitation and exceeded the authority of the Board to determine its own effluent discharge limit. The Court concluded that a determination increasing the permissible water flow constituted a modification under Water Code section 13223. They further specified that the authority granted to the Water Quality Board at best could grant an officer of the Board the ability to review the increase request and provide a recommendation. The Court reversed the case and remanded the matter to the trial court for further proceedings.
- Malaga County Water Dist. v. State Water Res. Control Bd., (December 10, 2020) 2020 Cal. App. LEXIS 1170.
The Court of Appeal affirmed in part, reversed in part, and remanded a case brought by Malaga County Water District that denied the district’s petition for a writ of administrative mandamus challenging the SWRCB’s imposition of penalties for violating the water discharge requirements. The Court concluded that the Water Quality Board wrongly found that the equitable defense of laches was unavailable to Malaga, and that they could assert laches as a defense to the SWRCB’s imposition of penalties on the discharge. Further, the Court noted that any claims where the Water Quality Board could be said to have known of the violation more than three years before the enforcement action was initiated are subject to the burden shifting presumption that the delay in initiating an action was unreasonable and prejudicial. Substantial evidence review applied because Water Code section 13263, subsection (g), and section 13330, subsection (e), indicated there is no independent review after a Section 13323 decision or order which took place here. Lastly, the hearing procedure was an underground regulation because it used a general template and Government Code section 11425.10 did not justify its use.
- United States v. Sweeney, 2020 U.S. Dist. LEXIS 159417 (E.D. CA, September 1, 2020).
U.S. District Court Judge Kimberly Mueller held that Defendants, John Sweeney and Point Buckler Club violated sections 301 and 404 of the Clean Water Act for unlawfully constructing a levee and other structures on Point Buckner Island in the San Francisco Bay Delta. Defendants constructed a levee, multiple structures, and other activities that added pollutants to the Delta. The actions of Defendants violated multiple parts of the CWA including unlawful dredged or fill material, point source discharge, and disruption of Waters of the United States (“WOTUS”). As a result of defendant’s actions, the United States estimated nearly 30 acres of tidal waters and wetlands were lost affecting the Delta’s chemical, physical, and biological functions. Plaintiffs requested declaratory relief while defendants denied liability and offered several affirmative defenses.
The Court held that a preponderance of the evidence existed to show that defendants purchased Point Buckley Island, built a boat ramp without seeking proper permitting, erected structures on the island without seeking permitting, and added specific discharge pollutants to the surrounding waterway in violation of the Clean Water Act. As the Court explained, Point Buckley Island’s location lies directly within a tidal channel and marsh land as defined under the Waters of the United States (“WOTUS Rule”). The Court further described how the aerial photographs admitted into evidence showed where defendants had discharged pollutants in violation of the CWA and WOTUS Rule and rejected all the affirmative defenses offered by defendants. The Court then issued a declaratory judgment for the United States, directing that defendants restore and maintain the chemical, physical, and biological integrity of the waterways and permanently protect the waterways.
AIR QUALITY AND CLIMATE CHANGE
- Communities for a Better Environment v. Energy Resources Conservation & Development Com. (2020) 57 Cal.App.5th 786.
Several nonprofit environmental groups filed a complaint for declaratory and injunctive relief against the State Energy Resources Conservation and Development Commission (“Energy Commission”). Plaintiffs challenged the constitutionality of Public Resources Code section 25531, which limits judicial review of decisions by the State Energy Commission on the siting of a thermal powerplant. The trial court found that Section 25531(a) is an unconstitutional legislative abridgement of the court’s jurisdiction, and that Section 25531(b) unconstitutionally abridges the court’s essential power to review agency findings.
The Court of Appeal affirmed the finding that the constitutional grant of original jurisdiction in Article VI of the California Constitution includes the superior courts and the Courts of Appeal and may not be circumscribed by statute absent some other provision empowering the legislature to take such action. Further, the legislative amendments to Section 25531 have “broken the once-tight link between the regulatory authority of the Public Utilities Commission (PUC) and powerplant siting decisions of the Energy Commission, such that the plenary power Article XII grants the Legislature over activities of the PUC no longer authorizes § 25531 (a).” Lastly, the Court concluded that Section 25531(b) violates the judicial powers clause by preventing courts from reviewing whether substantial evidence supports the Energy Commission’s factual findings.
- Gantner v. PG&E Corp. (In re PG&E Corp.), 2020 Bankr. LEXIS 894 (N.D. CA March 30, 2020).
The U.S. Bankruptcy Court dismissed a class action lawsuit against PG&E corporation for the planned blackouts between October and November 2019. The planned blackouts were enacted to reduce the risk of wildfire danger. The court held that the plaintiff’s claims were preempted by California law and fell exclusively within the authority of the CPUC. In a single claim complaint, plaintiff and a class alleged that PG&E was negligent in maintaining the power grid and requested injunctive relief requiring PG&E to maintain the transmission system. In the complaint, the class specifies that the case was “not about whether the shutoffs were appropriate or how PG&E handled them, it is about why they had to be done in the first place.” The Court looked to the CPUC and Public Utilities Code to determine whether the actions alleged against PG&E presented a justiciable question as to negligent actions by the utility. The Court found that PG&E filed a Wildfire Safety Plan as specified by CPUC. The Court determined that CPUC has exclusive regulatory powers to adjudicate matters related to planned blackouts. As such, the Court dismissed the case and stated the request for relief was too remote for the Court to fashion a proper remedy for the class.
HAZARDOUS MATERIALS AND REMEDIATION
- Clarke v. PG&E Co., 2020 U.S. Dist. LEXIS 218241 (N.D. CA, November20, 2020).
Plaintiff Dan Clarke alleged that roughly one hundred years ago, defendants Pacific Gas and Electric Company and PG&E Corporation (collectively “PG&E”) left behind hazardous waste created by its manufactured gas plants (“MGPs”) along the northern waterfront of San Francisco. Clarke plausibly alleged standing based on his recreational and aesthetic interests, and PG&E sought to dismiss causes of action for violations of the Resource Conservation and Recovery Act (“RCRA”), the Clean Water Act (“CWA”), and state strict liability and negligence law. Specifically, PG&E requested the Court dismiss the RCRA claim for lack of redressability because injunctive relief may require access to property owned by non-parties.
The Court held that PG&E’s claim in response to the RCRA violation may have merit after discovery but is premature at the current stage. Further, the Court held that Clarke’s remaining claims were insufficiently pleaded. Clarke claimed that the CWA violation was ongoing and continuous, but his first claim accrued outside of the five-year statute of limitations. Clarke also failed to plead cognizable damages for his strict liability and negligence claims, or to describe an inherently dangerous activity to demonstrate the strict liability claim had merit. In turn, PG&E’s motion to dismiss the RCRA claim was denied, and its motion to dismiss the CWA, strict liability, and negligence claims were granted with leave to amend.
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
- For Fisheries Res. v. United States FDA, 2020 U.S. Dist. LEXIS 207492 (N.D. CA, November 5, 2020).
The plaintiff, Institute for Fisheries, filed this suit challenging a decision by the Food and Drug Administration (“FDA”) that allowed a company to create and farm genetically engineered salmon. The plaintiff alleged that the FDA failed to adequately assess the harm that would be caused if the engineered salmon would escape from captivity and adversely affect normal salmon, including endangered species, in violation of NEPA. The Court agreed. It held that though this scenario was unlikely, the FDA did not adequately assess the risk of harm before finding no significant impact. This was particularly important because the FDA knew that the company’s salmon operations would expand, with additional facilities used for farming, and the impacts found in this study would be used for the additional facilities. The plaintiffs established that the FDA violated the ESA by falling to consult with the National Marine Fisheries Service and the Fish and Wildlife Service as required. As a result, the agency was ordered to go back and complete the analysis.
- California v. BLM, 2020 U.S. Dist. LEXIS 53958 (N.D. CA, March 27, 2020).
Before the Federal District Court were cross-motions for partial summary judgment in two related cases. In both cases, the plaintiffs challenged the Federal defendants’ promulgation of a final rule that repealed a previous rule regulating hydraulic fracturing operations on federal and tribal lands. Plaintiffs asserted that the issuance of the final rule violated the Administrative Procedure Act (“APA”), National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”). The Court found that California had standing for all its claims and that the citizen group plaintiffs had standing under the ESA and NEPA, but not under the APA. On the merits, the Court concluded that the change in policy was not arbitrary and capricious under the APA because BLM gave a reasoned explanation of the change. The court rejected California’s main arguments that BLM’s determination that the 2015 rule was duplicative of state and tribal regulation was negated by BLM’s earlier conclusion that BLM ignored foregone benefits of the Obama-era rule in its cost-benefits analysis. The Court declined to address whether BLM had authority to issue the 2015 rule and agreed with defendants that NEPA did not apply since the 2015 rule was never in effect and the “environmental status quo” was never altered. Lastly, on the ESA issue, the Court found that there was a rational connection between BLM’s final position that the repeal would have no effect on threatened species on BLM lands.
- Bair v. California State Department of Transportation (2019) 385 F.Supp.3d 878; Bair v. California State Department of Transportation, 2020 U.S. App. LEXIS 37604 (9th. Cir., December 2, 2020).
The Ninth Circuit overturned the California Northern District’s ruling blocking an attempt by the U.S. Department of Transportation (“DOT”) to widen Highway 101 through Richardson Grove State Park. In the district court case, DOT defended the project by stating the project would allow for safer passage of extra-long trucks which have been banned from use of Highway 101. As part of the draft EIS/EA under NEPA, DOT issued a “finding of no significant impact” or FONSI. Petitioners objected to the FONSI stating that the record submitted to the district court proved that studies relied upon by DOT showed a significant impact to the environment as a result of the project. The district court agreed with plaintiffs stating that the studies relied upon by DOT proved the following would have a significant impact on the environment: 1) “Pavement over half or more of the root zone, 2) construction in the structural root zone, 3) public enjoyment of the park, and 5) damage from ‘STAA heavies’ colliding with redwoods.” The district court dismissed Plaintiffs’ fifth argument that the construction would incrementally risk the leaning or toppling of trees as a result of disturbing the root beds on the grounds that it was moot. The Court then called for supplemental briefing of the parties to determine whether DOT should be permitted to conduct a new EA/FONSI.
In the current litigation, the Ninth Circuit reconsidered the EA/FONSI to determine whether Caltrans adequately considered: “1) whether redwoods would suffocate when more than half of their root zones were covered by pavement, 2) construction in a redwood’s structural root zone would cause root disease, 3) traffic noise would increase because of the larger size of the STAA trucks and 4) redwoods would suffer more frequent and severe damage as a result of strikes by STAA trucks.” The Ninth Circuit concluded that Caltrans adequately considered that the Project would not create extreme stress in the redwoods. They further held that the record sufficiently shows where Caltrans appropriately considered that the construction activity would only occur in the specified areas and avoid protected trees’ structural root zone. The Court further stated that widening the roadway would not increase the number of STAA trucks that use that route. As such, the Court held that the traffic volume and noise considerations were adequate. The Court held that there was no arbitrary or capricious analysis with regard to the frequency of collisions with the trees. The Court recognized that the litigation between parties had been ongoing for ten years. They reversed and vacated the judgment by the district court and stated that they expected the district court to quickly dispose of any remaining issues so that the Project could move forward.
MINING, OIL, AND GAS
- Valero Refining Co. – California v. Bay Area Air Quality Management District Hearing Bd. (2020) 49 Cal.App.5th 618.
Plaintiff, an oil refinery, sought approval from a regional air quality management district to bank its emissions reductions. Plaintiff was denied a significant portion of the requested credits—first by the agency official charged with deciding the issue, and then by the hearing board to which it appealed. Plaintiff then filed a petition for writ of mandate. In issuing a writ of mandate, the superior court ruled the hearing board did not apply the correct standard of review in deciding plaintiff’s appeal, because the hearing board erroneously declined to consider evidence that denial of plaintiff’s banking application was “unfair” under the circumstances.
The Appellate Court reversed. It held that the air quality management district hearing board’s standard of review neither required nor empowered the air district board to consider whether applying the regulation to the particular case before it was in some broad sense—fair. Instead, it was limited to a quasi-judicial inquiry entailing the exercise of its independent judgement to determine if the agency’s official interpretation of the regulation was correct. The superior court erred in construing the hearing board’s standard of review to permit, and indeed require, the hearing board to consider some other, more amorphous concept of “fairness.” Furthermore, the Court held that the hearing board applied the correct standard of review, therefore the superior court erred in granting a writ of mandate on the plaintiff’s first cause of action that alleged the board failed to apply the proper standard of review.
CULTURAL RESOURCE MANAGEMENT
- Wishtoyo Found v. United States Fish & Wildlife Serv., 2020 U.S. Dist. LEXIS 228306 (C.D. CA, December 4, 2020).
The district court granted USFWS’s motion for summary judgment holding that there was no question that USFWS adequately “took into account” the effects the Tehachapi Uplands Multiple Species Habitat Conservation Plan would have on the California condor population. Plaintiffs alleged that the California condor was a “traditional cultural property” as defined under NHPA and that the USFWS did not adequately evaluate impacts and mitigation to the condor population. USFWS determined that the condor was not a traditional cultural property under NHPA and as such did not require additional mitigation analysis. NHPA defines a traditional cultural property as “any district, site, building, structure or object included on or eligible for inclusion on the National Registry.” (54 U.S.C. §300308.) The Court held that the condor’s habitat may be eligible, but that the condor itself was not eligible for NHPA protections. The Court stated that to be eligible for consideration on the National Register, the area must have “geographical boundaries” that are “based upon a shared relationship among the properties constituting the district.” (Pueblo of Sandia v. United States (10th. Cir. 1995) 50 F.3d 856, 960-91.) The Court held that because plaintiffs failed to provide sufficient evidence to show that the condor or condor habitat were eligible for NHPA protections, it granted defendants motion for summary judgment.
- Prot. Info. Ctr. v. Carlson, 968 F.3d 985 (9th Cir. August 3, 2020).
The Court of Appeal reversed the district court’s order denying Environmental Protection Information Center’s (“EPIC”) request for a preliminary injunction, challenging the United States Forest Service’s approval of the Ranch Fire Roadside Hazard Tree Project in Northern California. The project authorized the Forest Service to solicit bids from private logging companies for the right to fell and remove large fire-damaged trees up to 200 feet from either side of roads in the Mendocino National Forest. Instead of preparing an Environmental Assessment or an Environmental Impact Statement for the Project under the National Environmental Policy Act, the Forest Service relied on a categorical exclusion (“CE”) for road repair and maintenance.
The Court held that the district court erred in denying the preliminary injunction and in finding that the Forest Service’s tree project qualified for a CE. While felling a dangerous dead or dying tree right next to the road falls within the scope of the “repair and maintenance” exemption, under “no reasonable interpretation of its language” did the project come within the CE for “repair and maintenance” of roads. The Court further reasoned that the Forest Service did not show that fulfilling its obligation to prepare an environmental impact statement under 42 U.S.C.S. § 4332(2)(C) or an environment assessment was inconsistent with the goal of public safety.
William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.