Welcome to Abbott & Kindermann, Inc.’s September Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.
- PREVIOUS MONTH’S UPDATE
To read the 2021 Mid-Year Cumulative Environmental Action News Update, click here:
- SUPREME COURT
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?
A. WATER RIGHTS AND SUPPLY
- State Water Resources Control Board Issues Curtailment Orders Following Drought Conditions In The State.
On April 21, 2021, California Governor Gavin Newsom issued a drought emergency proclamation to include a total of 41 counties that make up 30% of California’s population. On May 10, 2021, Newsom added Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed counties to the list of counties under a drought state of emergency. The proclamation directed the State Water Board (“Board”) to consider modifying requirements for reservoir releases and diversion limitations to conserve water upstream later in the year to maintain water supply, improve water quality and protect cold water pools for salmon and steelhead. The state of emergency also enables flexibilities in regulatory requirements and procurement processes to mitigate drought impacts and directs state water officials to expedite the review and processing of voluntary transfers of water from one water right holder to another. The Board has now issued multiple emergency curtailment orders pursuant to the Governor’s emergency proclamation.
- Upper Russian River
- In response to the water level in Lake Mendocino dropping below minimum storage levels, the Board issued curtailment orders to all 861 water right holders in the Upper Russian River. The orders make it illegal to draw or divert water from the Upper Russian River, except as needed to ensure human health and safety.
- Sacramento-San Joaquin Delta Watershed
- On August 3, 2021, the Board approved an emergency curtailment regulation for the Delta watershed. The regulation aims to preserve stored water to protect drinking water supplies, prevent salinity intrusion and algal blooms, and minimize impacts to fisheries and the environment. Curtailment orders were sent to 4,500 water right holders to protect drinking water supplies, prevent salinity intrusion and minimize impacts to fisheries and the environment.
- Scott and Shasta Rivers
- On August 17, 2021, the Board approved an emergency curtailment regulation for the Scott and Shasta Rivers. The Scott and Shasta Rivers are important tributaries for the Klamath River and are important for the threatened coho, Chinook salmon, and steelhead trout. According to the Board, temporarily halting diversions will leave more water instream to meet minimum human health and safety and livestock needs and improve habitat and migratory conditions for imperiled coho salmon. On September 10, 2021, the Board issued curtailment orders to 2,380 water right holders in the Scott and Shasta River watersheds.
- Mill and Deer Creeks
- On September 22, 2021, the Board adopted an emergency curtailment regulation for Mill and Deer Creeks in Tehama County. The creeks are priority watersheds for sustaining the Central Valley spring-run Chinook salmon and California Central Valley Steelhead, and support Central Valley fall-run and late fall-run Chinook salmon, as well as Sacramento River winter-run Chinook salmon. There are 23 water right holders likely to be impacted by the orders.
For more information see:
- Court Reinstates Pre-2015 Interpretation Of The Clean Water Act’s Definition Of “Waters Of The United States.”
In Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, the U.S. District Court for the District of Arizona halted implementation of the recently created Navigable Waters Protection Rule (“NWPR”). (Pasqua Yaqui Tribe v. United States EPA (2021) U.S.Dist.LEXIS 163921.) The NWPR was issued in 2020 and changed the interpretation of the definition of “waters of the United States” under the Clean Water Act (“CWA”). This departs from a previous U.S. District Court case where the court remanded the rule to the agencies but allowed it to stay in place. Now, agencies must follow the earlier interpretation of waters of the United States. Under this regime:
- “Waters of the United States” includes ephemeral streams, which the 2020 rule had removed from jurisdiction.
- The agencies will apply the “significant nexus” test to determine on a fact-specific basis whether wetlands and tributaries are “waters of the United States.” The 2020 rule had limited jurisdiction for wetlands to those with a direct surface water connection to a “water of the United States.” The significant nexus standard allows the agencies to determine whether a wetland or tributary is jurisdictional based on a broader range of potential connections or impacts to downstream or adjacent waters.
C. AIR QUALITY AND CLIMATE CHANGE
- U.S. Environmental Protection Agency Issues Regulation Reducing Use Of Hydrofluorocarbons.
The U.S. Environmental Protection Agency (“EPA”) issued a final rule to address hydrofluorocarbons (“HFC”), a chemical that contributes to climate change. This is the first Biden administration action to directly limit greenhouse gases and is not anticipated to be the last. The regulation would reduce HFCs by 85% over the next 15 years. This will proceed incrementally, starting with a 10% reduction in 2022. The rule will address HFCs in three ways: (1) phasing down production and consumption, (2) maximizing reclamation and minimizing releases from equipment, and (3) facilitating the transition to next-generation technologies through sector-based restrictions. The final rule will establish an allowance allocation and trading program that works like a cap-and-trade program. Surprisingly, industry executives support the measure because it will help domestic manufacturers. Other countries are moving away from HFCs and industry executives see the rule as helping to put all manufacturers on a level playing field and helping support alternatives.
For more information see:
D. RENEWABLE ENERGY
- U.S. House of Representatives Committee Approved $12 Billion To Help Electrify The Federal Government’s Vehicle Fleet.
The House Committee on Oversight and Reform voted to approve $12 billion to electrify the federal government’s vehicle fleet, including funding for the U.S. Postal Service fleet and to build charging station infrastructure across the nation. This funding will be considered as part of the $3.5 trillion budget reconciliation plan proposed by Democrats. According to a memo released by the committee days before the vote, the funding includes $5 billion that would go toward electrifying the General Services Administration fleet and $2.4 billion that would be provided to USPS. The USPS money would be split in two, with $1.2 billion going toward electric vehicle purchases and the other half going toward support infrastructure. The goal of this legislation is to move the country closer to having a fully electric federal vehicle fleet.
For more information see:
E. HAZARDOUS MATERIALS AND REMEDIATION
- Senate Bipartisan Infrastructure Bill Would Reinstate Tax To Fund Cleanups At Superfund Sites.
The Senate Bipartisan Infrastructure Bill contains a provision that would reinstate an excise tax on chemicals that will fund Superfund site cleanup. This tax would be on chemicals, including benzene, arsenic, and mercury, and possibly on crude oil. The tax expired in 1995 and sends proceeds to a trust fund for cleanups. The provision is slightly different from the previous tax and expands the reach of the tax by applying it to any imported substance in which the taxable chemicals constitute more than 20% of the weight or more than 20% of the value of the imported substance, as opposed to the original threshold of 50%. Superfund sites are cleaned pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) which is enforced by the U.S. Environmental Protection Agency (“EPA”). Funds for cleanups under CERCLA have been inadequate to address all superfund sites. The EPA plans to use any additional money for the Superfund program to (1) eliminate the backlog of remedial projects awaiting funding; (2) accelerate or complete work at ongoing cleanup projects; (3) begin cleanup of additional Superfund projects that are currently in various phases of preconstruction and planning; and (4) ensure those most directly affected by contamination are involved in the cleanup process. If passed, the tax would be imposed until the end of 2031.
For more information see:
F. MINING, OIL, AND GAS
- PennEast Pipeline Co., LLC v. New Jersey (2021) ___U.S.___ [141 S.Ct. 2244, 28 Fla.L.Weekly Fed.S. 1025].
In PennEast Pipeline Co., LLC v. New Jersey, the Supreme Court held that the Natural Gas Act authorizes Federal Energy Regulatory Commission (“FERC”) certificate holders to condemn all necessary rights-of-way, whether owned by private parties or States. The Supreme Court granted certiorari to determine whether the Natural Gas Act authorizes FERC to condemn land in which a State claims an interest. In a 5-4 decision, the court held that section 717f(h) of the Natural Gas Act delegated federal eminent domain power to private parties and therefore those parties could initiate condemnation proceedings, even against state-owned property. The majority reasoned that this decision does not offend state sovereignty because, at the founding of the United States, the States consented to the exercise of federal eminent domain power.
- Los Angeles County Board of Supervisors Voted To Ban New Oil Wells.
The Los Angeles County Board of Supervisors (“Board”) voted to ban new oil wells and evaluate the status of existing ones while changing their zoning to nonconforming. The Board pointed to environmental justice reasons for banning new wells. In LA County, 73% of residents who live near an oil well are people of color. State law precludes existing oil wells from being shut down until the owners recuperate the cost of drilling. By labeling existing wells as nonconforming uses, the county will be allowed to revoke drilling permits. Opponents of the move say that all the county is doing is choosing imported oil over the jobs of local workers. However, the Board passed another motion to help fossil fuel workers find new jobs.
For more information see:
G. FOREST RESOURCES
- California Legislature Approves Controlled Burn Bill.
In early September, the California Legislature passed SB 332, a controlled burn bill. This bill reduces potential liability for fire suppression costs that are incurred fighting a fire if those fires are sparked by controlled burns intended to reduce wildfire hazard. This law works to promote controlled burns by reducing liability for those performing controlled burns. Under state law, people are liable for fire suppression costs if they negligently set a fire that escapes and grows. SB 332 changes the liability threshold to gross negligence for those performing controlled burns. The bill also exempts cultural fire practitioners from specific requirements needed to meet baseline liability standards when they have written permission from a landowner or approval of a Native American tribe to burn. The legislature hopes to promote the use of controlled burns to reduce the buildup of fuel for fires. SB 332 received unanimous, bipartisan support.
For more information see:
H. CULTURAL RESOURCES MANAGEMENT
- City of L.A. v. Dickson (9th Cir. July 8, 2021, No. 19-71581) 2021 U.S. App. LEXIS 20248.
In City of L.A. v. Dickson, the Ninth Circuit Court of Appeals held that the Federal Aviation Administration’s (“FAA”) application of a categorical exemption to the National Historic Preservation Act (“NHPA”) was arbitrary and capricious because the FAA failed to consult with the City of Los Angeles or Culver City. The court stated that even if the FAA properly determined that there would be no adverse impact on the historic properties, the FAA violated the NHPA by failing to consult. Although the court referred to FAA’s failure to consult as a “serious error,” the court decided not to vacate the decision because of the disruptive consequences of doing so. However, the FAA must still undertake a proper NHPA consultation with the City of Los Angeles or Culver City.
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.