At a conference in Los Angeles at the end of July, the chair of the State Water Resources Control Board (SWRCB), Felicia Marcus, noted that the Department of Conservation’s Division of Oil, Gas, and Geothermal Resources (DOGGR) is delaying the release of its draft regulations of hydraulic fracturing until after the state’s legislative session. Marcus indicated that DOGGR is waiting to see whether the legislature will pass the remaining bill to regulate fracking, Senator Pavley’s SB 4.
Continue Reading DOGGR Delays Release of Draft Fracking Rules Pending Possible Instruction from Lawmakers

Two Republican State Assemblymen (Jim Patterson, R-Fresno and Frank Bigelow, R-O’Neals) submitted a request to the Joint Legislative Audit Committee on Tuesday for an investigation into the California High Speed Rail Authority’s (“Authority”) appraisal process, assessment of land values, and the role of private contractors in the Authority’s acquisition of 356 parcels in the Central…

Decision expected to provide guidance for public agencies in determining the type of environmental review required for such bans.

In Save the Plastic Bag Coalition v. County of Marin, et al. (published in part by the First Appellate District on July 25, 2013) (“Marin”), the court upheld the County of Marin’s (“County”) ordinance prohibiting certain retail establishments from dispensing plastic bags and imposing a charge of at least five cents for paper bags.  The court determined that the ordinance did not require review under the California Environmental Quality Act (“CEQA”) because it was categorically exempt under CEQA Guidelines §§ 15307 and 15308 (also known as Class 7 and 8 exemptions, which are actions taken to assure the maintenance, restoration, or enhancement of a natural resource, or protection of the environment from environmental review).  

This decision follows a previous challenge by the Save the Plastic Bag Coalition (“Coalition”) appealing a plastic bag ban ordinance in the City of Manhattan Beach, which proceeded all the way to the California Supreme Court.  See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155 (“Manhattan Beach”). Continue Reading Marin County’s Plastic Bag Ban Categorically Exempt From CEQA Review

Today, the State Water Resources Control Board released the final draft of the Statewide General National Pollutant Discharge Elimination System (“NPDES”) Permit for the Discharge of Storm Water Associated with Industrial Activities (“Industrial General Permit” or “Permit”).  The long-awaited third revised draft of the Industrial General Permit comes after two previous iterations of the draft…

In Poet, LLC et al. v. California Air Resources Board et al., the Fifth Appellate District held the Air Resources Board (“ARB”) violated CEQA and the APA with its approval of the Low Carbon Fuel Standards (“LCFS”) regulations, and ordered the lower court to issue a peremptory writ of mandate, requiring ARB to take certain CEQA-related actions in any re-approval of the regulations. In doing so, however, the Court concluded that the LCFS regulations could remain in effect while ARB took the actions necessary to comply with CEQA and the APA. The Court also ordered that if those corrective actions were not taken, ARB would be ordered to set aside and suspend operation and enforcement of the LCFS regulations.

The LCFS regulations were adopted by ARB to reduce emissions from transportation and implement measures to achieve the goals of the California Global Warming Solutions Act of 2006 ( “AB 32”). In enacting the regulations, ARB was required to comply with AB 32, California’s Administrative Procedures Act (“APA”), and the California Environmental Quality Act (“CEQA”).Continue Reading California Appeals Court: Air Resources Board Low Carbon Fuel Standards Regulations Violate CEQA

On July 29 and 30, Stoel Rives attorney Mike Mills and I will speak at a conference on Hydraulic Fracturing in California. The conference will take place at the DoubleTree Guest Suites Santa Monica Hotel in Santa Monica, CA. Click here for more information about the conference and registration.
Continue Reading Stoel Rives Attorneys to Speak at Conference on Hydraulic Fracturing and Environmental Regulation in California

In Citizens for Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al., (filed and published in part by the Fifth Appellate District on July 8, 2013), the petitioner in a CEQA lawsuit sought relief from the appellate court ordering the trial court to require production of thousands of pages of documents that the City refused to add to the administrative record.  The City had refused to make the withheld documents part of the record based on various privileges, including those applied by way of the “common interest” doctrine.  The Court of Appeal held that the common interest doctrine (derived from Evidence Code §§ 912, 952) did not protect from disclosure preapproval communications between the City and the project applicant, and remanded the case for the trial court to apply this rule. The decision creates a split in authority regarding the application of the common interest doctrine.

In reviewing the City’s assertion of privilege, the Court first found that CEQA, specifically Public Resources Code section 21167.6, which defines the scope of the administrative record, does not abrogate privileges generally, including the attorney-client and attorney work-product privileges.  The Court went on to find, however, that the common interest doctrine, which operates to prevent the waiver of attorney-client and work-product privileges when the disclosure of information is necessary to accomplish the purpose for which the legal advice was sought, does not protect agency-applicant communications before project approval.Continue Reading California Appellate Court Issues Significant Opinion Regarding CEQA Administrative Records and the Common Interest Doctrine

The California Court of Appeal for the Sixth District issued its decision in Save Panoche Valley v. San Benito County, finding that the public interest in developing the Panoche Valley Solar Farm (Project) outweighs the public interest in maintaining the agricultural use of the land on which the Project will be built.  The decision is the first published case in California to confirm that a Williamson Act contract can be cancelled to accommodate a solar generating plant, and addresses issues that arise from California’s competing policies to promote renewable energy development and to protect agricultural land.

The court also concluded that the environmental impact report prepared for the Project was adequate, in compliance with the California Environmental Quality Act (CEQA).Continue Reading Appeals Court Finds in Favor of Solar Project Over Agricultural Use

Today President Obama unveiled his Climate Action Plan, designed to cut greenhouse gas emissions in the U.S., prepare the U.S. for the effects of climate change, and lead international efforts to address global climate change.  For details of the Climate Action Plan and the President’s speech on the Plan at Georgetown University, see our blog post at…

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

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Few firms view their Environment, Land Use, and Natural Resources practices as core legal services. Stoel Rives is one of them. The firm ranks #8 in the United States according to Law360’s list of the largest practices of its kind. Our sophisticated compliance counseling, permitting, regulatory development, and litigation practices continue a long tradition of specialization and deep experience. Our environment, land use, and natural resource attorneys incorporate prior agency experience, technical acumen, and industry knowledge into their legal advice. They also build strong relationships with agency officials and industry associations. Our litigation successes include landmark decisions. More than 60 attorneys, paralegals, and compliance analysts comprise Stoel Rives’ nationwide Environment, Land Use & Natural Resources practice.