Archives: October 2010

After Rehearing, First Appellate District, Division Five, Holds Exhaustion Requirement Has No Preclusive Effect in Challenge to Exemption Determination and Upholds Previous Decision

In Tomlinson v. County of Alameda (2010) 188 Cal.App.4th 1406 (Tomlinson II), the First Appellate District, Division Five, reexamined its decision in Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029 (Tomlinson I), where the court found that the County of Alameda abused its discretion in deeming a proposed subdivision project exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), under the categorical exemption for in-fill development (Cal. Code Regs., tit. 14 (CEQA Guidelines), § 15332). Continue reading

Ninth Circuit Holds Clean Water Act Pre-Enforcement Compliance Orders Are Not Subject to Judicial Review

In Sackett v. United States Environmental Protection Agency, (9th Cir. 2010) 622 F.3d 1139, the Ninth Circuit held that the Clean Water Act (CWA) precludes judicial review of compliance orders until after an enforcement action is filed, and that preclusion of judicial review of pre-enforcement compliance orders under the CWA’s statutory scheme did not violate due process.  The Court first determined the language and structure of CWA demonstrates that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders under 33 U.S.C. § 1319(a)(3).  The Court further found that the CWA civil penalty provision does not authorize the EPA to bring enforcement actions for mere violations of compliance orders.  In reaching this result, the Court held the EPA must bring an action alleging a violation of the CWA itself in order to enforce a compliance order under the CWA. Continue reading