Environmental Impact Statement

In one of her last major legal actions before leaving office as California’s Attorney General, Kamala Harris, along with the California Coastal Commission (jointly the “Attorney General”), filed suit against various federal agencies in the United States District Court for the Central District of California, challenging the issuance of the Final Programmatic Environmental Assessment (“PEA”) and Finding of No Significant Impact (“FONSI”) for well stimulation treatments on the Southern California Outer Continental Shelf.  The December 19, 2016 Complaint names the Department of the Interior, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement (jointly the “Agencies”) as defendants.  The Attorney General’s lawsuit follows similar lawsuits filed by the Environmental Defense Center and Santa Barbara Channelkeeper on November 11, 2016, and a separate suit filed by the Center for Biological Diversity (“CBD”) on November 15, 2016.

The Proposed Action is the approval of well stimulation treatments at 22 production platforms on 43 leases on the Southern California Outer Continental Shelf, which sits off the coast of the southern half of the state.  The Complaint asserts that the Agencies violated the National Environmental Policy Act (“NEPA”) and the Coastal Zone Management Act (“CZMA”) because they issued the FONSI for the Proposed Action without adequate environmental review.  The Agencies “improperly concluded that allowing such activities would result in no significant impacts, in violation of the requirements of [NEPA],” despite the substantial record showing the potential for significant environmental effects.  Complaint, at 3.  Further, the Attorney General alleges that the Agencies violated the CZMA by failing to determine whether the Proposed Action is consistent to the “maximum extent practicable” with the enforceable policies in California’s coastal zone management program.Continue Reading California Sues Federal Government Alleging Inadequate Environmental Review of Offshore Drilling Proposal

On September 6, 2016, a federal Judge issued an Order finding that the U.S. Bureau of Land Management (“BLM”) failed to take a “hard look,” as required under the National Environmental Policy Act (“NEPA”), at the potential environmental impacts of hydraulic fracturing in issuing a new Resource Management Plan (“RMP”) for the Bakersfield Field Office.  The Order directed the BLM to conduct a supplemental environmental impact statement (“EIS”) focusing on the potential impacts of fracking.   While the decision will likely affect future leasing under the new RMP, it is not a moratorium on fracking.
Continue Reading BLM Must Take a “Hard Look” at Fracking Impacts

In Town of Atherton v. CA High Speed Rail Authority, No. C070877 (Cal. Ct. App. 3d Dist., July 24, 2014), the Third Appellate District upheld the High-Speed Rail Authority’s (HSRA) Program Environmental Impact Report/ Program Environmental Impact Statement (PEIR/PEIS) for the Bay Area to San Joaquin Valley segment of California’s High Speed Rail system (the Project).  The appellate court ruled that the HSRA properly limited the environmental analysis to a program level and properly deferred site-specific analysis, and that the PEIR/PEIS studied an adequate range of alternatives.

In 2008, the HSRA certified the PEIR/PEIS for the Bay Area to San Joaquin Valley segment and identified the Pacheco Pass Corridor as the preferred alignment.  Shortly after certification of the PEIR/PEIS, several interested parties (collectively, the Petitioners) filed suit, and the trial court found fault with the PEIR/PEIS’s project description, alternatives, and mitigation measures (Town of Atherton I).  After revising the PEIR/PEIS, the HSRA asked the trial court to approve the revisions.  A second group of litigants that included the Petitioners then filed suit to challenge the revised analysis.  That suit is the root of the instant appeal (Town of Atherton II).

In Town of Atherton II, Petitioners alleged that the revised PEIR/PEIS improperly deferred analysis of the impacts of  a portion of the train alignment and that the alternatives analysis did not consider new information provided by its own expert consulting company that identified a different feasible  alignment.  The trial court held that impacts of the alignment were properly deferred and the HSRA was not required to consider the Petitioner’s alternative.

On appeal, the appellate court first considered the HSRA’s contention that the appeal must be dismissed because federal law preempts state environmental law.  Moving on to the merits, the court then analyzed the appellants’ arguments regarding whether the PEIR/PEIS properly analyzed the impacts of the Project and the alternatives. Continue Reading California High Speed Rail Dodges Legal Bullet