Insight and Information for the Environmental & Natural Resource Industry
Today, the State Water Resources Control Board (State Board) released for public comment its Draft Industrial Storm Water Permit and supporting documents. This is the fourth (and likely final) version of the Draft Industrial Storm Water Permit, which is designed to replace the existing Industrial Storm Water Permit in place since 1997.
The Draft…
On December 11, 2013, the DOC proposed an emergency rulemaking to implement interim provisions of SB 4. Public Resources Code section 3161, part of SB 4, provides for an interim grace period from the permitting requirement of SB 4 until SB 4’s regulations are effective. Section 3161 also provides for DOC’s Division of Oil, Gas…
On November 15, 2013, the California Department of Conservation (“DOC”) published the notice of proposed rulemaking action regarding draft regulations for well stimulation. These proposed regulations will implement SB 4, which Governor Brown on September 20, 2013, and will become effective on January 1, 2014.
The draft regulations supplement the Division of Oil, Gas and…
On Wednesday, November 6, 2013, the Environmental Protection Agency (“EPA”) published a final rule in the Federal Register amending the Civil Monetary Penalty Inflation Adjustment Rule. This is required by the Debt Collection Improvement Act of 1996 (“DCIA”) in order to adjust civil monetary penalties for inflation. The DCIA sets out a four-step formula that…
Economists at California State University, Fresno recently published a study on the current and future economic impacts of oil production from the Monterey Shale Formation (MSF) in the San Joaquin Valley. The study was commissioned by the Western State Petroleum Association and responds to the need for a greater understanding of the petroleum industry’s…
Efforts are already underway to implement SB 4, which was signed by Governor Jerry Brown on September 20, 2013 (see September 23, 2013 post). The California Department of Conservation (the “Department”) and its Division of Oil, Gas, and Geothermal Resources have begun developing draft regulations months before the law’s effective date of January 1, 2014. …
The Second District Court of Appeal has issued a decision in Comunidad en Accion v. Los Angeles City Council (case no. B240554 (Sept. 20, 2013), finding that the petitioner’s failure to timely request a hearing under the California Environmental Quality Act (“CEQA”) was excusable neglect. The Court of Appeal reversed the trial court’s ruling dismissing the petitioner’s suit on this basis.[1]
Comunidad en Accion challenged the City of Los Angeles’ approval of new and expanded solid waste facilities at the Bradley Landfill in Sun Valley, where the real party in interest, Waste Management, proposed building a new solid waste transfer station and expanded recycling and green waste processing facilities. Comunidad failed to comply with Public Resources Code section 21167.4 by filing a request for a hearing within 90 days of filing the lawsuit, however, and Waste Management filed a motion to dismiss on this basis shortly after the 90-day deadline ran.
The trial court granted the motion to dismiss Comunidad’s CEQA claims and denied its request for relief under Code of Civil Procedure section 473, which permits relief from dismissal due to mistake, inadvertence, surprise, or excusable neglect. Comunidad’s attorney averred that he had inadvertently omitted the 90-day hearing request from his personal calendaring system and that this mistake was compounded when he was out of state for two weeks prior to the deadline due to family illness. The trial court distinguished case precedent that found a calendaring error warranted discretionary relief under section 473, concluding that calendar shortcomings in the age of electronic litigation calendars, was not excusable neglect.
Upon review, the Court of Appeal reversed, finding that the trial court abused its discretion in denying Comunidad relief.
[1] In addition to the CEQA claims, Comunidad challenged the siting of the waste facilities under state antidiscrimination laws. On this issue, the Court of Appeal affirmed the trial court’s summary judgment in favor of the City.Continue Reading Second District Court of Appeal finds Failure to Request a CEQA Hearing within 90 Days is Excusable Neglect
The U.S. Supreme Court issued its decision today in Koontz v. St. Johns River Water Management District, ruling that a monetary exaction that is improperly imposed as a permit condition can amount to a taking in violation of the Fifth Amendment to the U.S. Constitution. The decision is significant because it allows a takings claim based on a monetary exaction, whereas prior precedent has limited takings claims to exactions of interests in real property.
Local and state agencies often impose conditions on development permits to offset or mitigate impacts associated with the development. The Supreme Court decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard (Nollan/Dolan) provide that where conditions require the provision of an interest in land, those conditions must be roughly proportionate to the impacts of the development. This decision extends the limitations on permit exactions beyond interests in real property and confirms that a takings claim can arise when a permit is denied based on the applicant’s refusal to accept an improper condition.Continue Reading U.S. Supreme Court Ruling on Takings – Demand for Monetary Exaction as Permit Condition Can Be an Unconstitutional Taking
On March 19, the California Attorney General’s office filed a complaint for a validation action against all interested people in the world in Sacramento Superior Court on behalf of the California High Speed Rail Authority (“Authority”). A validation action is a process granted only to public agencies under California law that permits such agencies to…
Senate Bill 34 (Carbon Capture and Storage Act of 2013), which would close certain key legal gaps that hinder carbon capture and storage in California, lost its sponsor late last week when Senator Rubio (D – East Bakersfield) suddenly resigned. Earlier this week the Senate Environmental Quality Committee decided to postpone its hearing on SB…
