On February 15, 2011, in San Luis & Delta-Mendota Water Authority v. Salazar, the United States Ninth Circuit Court of Appeals determined that Sections 7 and 9 of the Endangered Species Act (ESA) did not violate the United States Constitution’s Commerce Clause as applied to the California delta smelt. Growers of almonds, pistachios and walnuts brought suit against the United States Fish and Wildlife Service (FWS), claiming that FWS’s protection of the delta smelt had reduced their water supplies, thereby negatively affecting their orchard businesses. The growers argued that because the small fish no longer had any commercial value within California, the Commerce Clause did not support FWS’s regulation of that species. The Night Circuit rejected this argument. Continue reading →

On March 11, 2011, in Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, the California First District Court of Appeal rejected a challenge brought under the Density Bonus Law and CEQA to the City of Berkeley’s approval of an infill senior housing project. The case clarifies that courts must look to the amount of rent paid, rather than the amount of rent received by the developer, in determining whether a project classifies as affordable housing. The case also emphasizes local government’s authority to grant concessions and waivers under the Density Bonus Law (Gov. Code, § 65915 et seq). Further, the case provides important direction concerning CEQA’s infill exemption as it intersects with the Density Bonus Law and CEQA’s categorical exemption for in-fill development. Continue reading →

On April 12, 2011, Governor Jerry Brown signed Senate Bill 2X requiring California utilities to obtain 33 percent of their power from renewable energy sources by 2020. Energy providers are required under the new legislation to draw power from solar panels, biomass, windmills, small hydroelectric plants, and other renewable energy sources. State law currently requires utilities other energy providers to meet a target of 20 percent by 2010 under the Renewable Portfolio Standard Program. Executive Orders S-14-08 and S-21-09 issued by former Governor Schwarzenegger in 2008 and 2009, respectively, established a further goal of drawing 33 percent of energy from renewable sources by 2020. Governor Brown’s signing of Senate Bill 2X codified this goal into law. Continue reading →

Partners Whitman F. Manley and Tiffany K. Wright, and Associate Christopher J. Butcher, successfully defend the Los Angeles County Metropolitan Transportation Authority’s Decision to Include Potential Funding for the 710 Freeway Tunnel Project in a Sales Tax Measure Without Conducting Prior CEQA Review. In City of South Pasadena, et al. v. Los Angeles County Metropolitan Transportation Authority, the Second Appellate District held in an unpublished opinion issued on March 23, 2011, that the Los Angeles County Metropolitan Transportation Authority’s (Metro) decision to place a sales tax measure, known as the “Traffic Relief and Rail Expansion Ordinance,” on the November 4, 2008 election ballot (Measure R) did not constitute a “project,” as defined by the California Environmental Quality Act (CEQA). Therefore, the court rejected the argument advanced by the Cities of La Cañada and South Pasadena (Petitioners) that environmental review of the proposed 710 Freeway extension was required prior to including it in the list of potential projects eligible to receive Measure R funding. Continue reading →

On Friday, March 19, 2011, San Francisco Superior Court Judge Ernest Goldsmith ruled that the California Air Resources Board’s (ARB) attempt to implement the State’s landmark greenhouse gas emissions reduction law with a cap and trade program was premature because the agency did not sufficiently evaluate other alternatives to the program nor submit those alternatives to public comment. Continue reading →

On Tuesday, March 15, 2011, the Energy Tax Prevention Act of 2011 (H.R. 190) passed through Congress’s House of Representatives Energy and Commerce Committee. With a vote of 35-19, the Committee has recommended that H.R. 190 be considered by the House as a whole, and be subject to a full floor vote by the U.S. House of Representatives. The House is expected to vote on the bill before its Easter recess next month. Continue reading →

The Army Corps of Engineers recently proposed to reissue the existing NWPs authorizing the discharge of dredged or fill material into waters of the United States for specified projects. (See http://www.usace.army.mil/CECW/Documents/cecwo/reg/nwp/NWP_prop_fr_16Feb2011.pdf) For projects that fall within their scope, NWPs can take the place of individual permits under section 404 of the Clean Water Act and have the potential to streamline one part of the approval process as obtaining permit coverage through an NWP is generally quicker and less expensive than obtaining an individual 404 permit. Through its proposal, the Corps is planning to reissue 48 of the 49 existing NWPs with some modifications and to issue two new NWPs. The Corps is proposing to let one NWP expire—NWP 47 for Pipeline Safety Program Designated Time Sensitive Inspections and Repairs—and not reissue it. Continue reading →

On December 20, 2010, five years after the United States Supreme Court struggled with resolving the scope of Clean Water Act (“CWA”) jurisdiction in Rapanos v. United States (2006) 126 S.Ct. 2208, the EPA and the US Army Corps of Engineers have sent a draft December 2010 “Clean Water Protection Guidance” (“2010 Draft Guidance”) to the White House Office of Management and Budget (“OMB”) that would reportedly “clarify Clean Water Act responsibilities.” The 2010 Draft Guidance represents a significant departure from the Existing Guidance as it relies more explicitly on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction in the Rapanos decision. Continue reading →

In the continuing quest to resolve the scope of the federal Clean Water Act (CWA), the EPA has prepared draft guidance to assist field staff in identifying jurisdictional waters under the CWA. While the draft guidance is not a regulatory document, the draft guidance may be a step toward formal rulemaking. The EPA forwarded the draft guidance document to the Office of Management and Budget for interagency review on December 20, 2010. Continue reading →