News & Updates

Upcoming Speaking and Teaching Engagements

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On December 8, 2020, Jim Moose will be presenting a discussion on 2020 CEQA case law at the 16th Annual (Virtual) CEQA Conference put on by CLE International.

On February 26, 2021, Whit Manley will participate in a webinar sponsored by the California Center for Judicial Education and Research (CJER). The webinar will focus on recent developments in the California Environmental Quality Act. The webinar is available to Justices, Judges, research attorneys, and other members of the California judicial branch who are involved in cases involving CEQA claims.

RMM Attorneys Named Top Attorneys for Environmental Law and Environmental Litigation

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RMM is full of super attorneys! Jim Moose, Tiffany Wright, Andrea Leisy, Sabrina Teller, and Chip Wilkins, along with Whit Manley, of counsel, and Senior Associate Laura Harris, have been named as Super Lawyers in 2020 by Super Lawyers Magazine. Partner Chris Stiles and Associate Nathan George were selected as Rising Stars. Several of our attorneys are fortunate enough to be officially recognized, but all are highly valued at RMM for their hard work and expertise.

EPA Releases Navigable Waters Protection Rule that Redefines Waters of the U.S.

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On January 23, 2020, the U.S. Environmental Protection Agency (EPA) released its Navigable Waters Protection Rule to replace the 2015 Clean Water Rule, promulgated by the Obama administration and repealed by the current administration in 2019. The new rule purports to clarify federal regulation of waters within the U.S. by differentiating “waters of the U.S.,” which are subject to federal jurisdiction under the Clean Water Act, and non-jurisdictional waters. It identifies four categories of protected waters—the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters. The new rule also identifies waters not subject to federal control, including groundwater; ephemeral features; ditches; prior converted cropland; farm and stock watering ponds; waste treatment systems; and rainfall collection features.

The new rule is moored to late Justice Antonin Scalia’s plurality opinion in the landmark Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), that offers a more restrictive view of jurisdictional waters. Justice Anthony Kennedy’s concurrence in the same case offers a more expansive view and spawned what became known and implemented as the “significant nexus” test—which placed all waters that bear a significant nexus to traditional navigable waterways within federal jurisdiction. For nearly a decade, Kennedy’s significant nexus test, imprecise as it may be, supplemented the 1986 U.S. Army Corps of Engineers (USACE) definition of jurisdiction waters in a majority of regions—later serving as the basis for the 2015 Rule.

Implications of the new Trump administration rule vary state by state but mark a clear reduction in federal protection for waters that were formerly classified as jurisdictional, notably wetlands and ephemeral waterways. California is especially affected because of its unique climate and abundance of wetlands and seasonal streams. A primary stated goal of the current administration with the Navigable Waters Protection Rule was to increase state responsibility for managing their waters, which is the exact outcome in California where the State Water Board will soon regulate what are referred to as “Waters of the State.” This new regulatory program becomes effective on May 28, 2020, and closely tracks the 2015 rule in terms of protection and coverage.

The Navigable Waters Protection Rule arrives on the heels of nearly 620,000 public comments on its proposal, fewer than the over one million received on the 2015 rule’s proposal.  The rule will take effect 60 days after publication in the Federal Register, although a publication date has yet to be released. Until such time, the 1986 USACE definition prevails, along with any adopted Supreme Court clarifications. For Ninth Circuit territory, this means a return, if only temporary, to Kennedy’s “significant nexus” test.

Casey Shorrock

California Supreme Court Justice Ming Chin to Retire in August 2020

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Justice Ming W. Chin will retire from the Supreme Court of California on August 31, 2020, after 25 years on the State’s highest court. Appointed in 1996 by then Governor Pete Wilson, Justice Chin is the high court’s longest sitting member, having served with three different chief justices. Justice Chin is the high court’s longest sitting member and its first Chinese-American justice.

During his tenure on the Supreme Court, Justice Chin authored more than 350 majority opinions and more than 100 separate opinions, including several on environmental and land use issues. Justice Chin penned the widely cited opinion in Berkeley Hillside Preservation v. City of Berkeley, (2015) 60 Cal.4th 1086, where he clarified the definition of “unusual circumstances” within the exceptions to CEQA exemptions and articulated a two-part test with a bifurcated standard of review for determining whether the exception applies. Ten years prior, in Sierra Club v. California Coastal Com., (2005) 35 Cal.4th 839, Justice Chin upheld the California Coastal Commission’s reading of the California Coastal Act in approving a development permit. In his ruling, Justice Chin looked to the “statutory framework” and the “evolution of…legislative history” but ultimately relied on a facial reading of the Act to affirm agency discretion. More recently, in Sierra Club v. County of Fresno, (2018) 6 Cal.5th 502, he issued the “Friant Ranch” decision that established a hybrid CEQA standard of review for claims challenging the informational sufficiency of an EIR’s discussion of significant impacts, where a “do novo” review is appropriate for “a mixed question” of fact and law that “requires a determination whether statutory criteria were satisfied” and “a more deferential standard is warranted” for predominantly “factual questions.” Justice Chin also rendered highly impactful opinions on water rights, Agua Caliente Band of Cahuilla Indians v. Superior Court, (2006) 40 Cal.4th 239 and City of Barstow v. Mojave Water Agency, (2000) 23 Cal.4th 1224; endangered species, Central Coast Forest Assn. v. Fish & Game Com., (2017) 2 Cal.5th 594; and eminent domain, Mt. San Jacinto Community College Dist. v. Superior Court, (2007) 40 Cal.4th 648, to name a few.

Justice Chin is the high court’s longest sitting member and its first Chinese-American justice. He grew up the son of Chinese immigrants who, though unable to attend school themselves, taught he and his seven siblings the importance of education. Justice Chin’s two children both followed his footsteps into the law and became attorneys—Jason Chin, an Alameda County Superior Court judge, and Jennifer Chin, senior counsel for the University of California’s Office of the President.

Casey Shorrock

RMM Successfully Defends Sustainable Communities Project Against Multiple Challenges

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In what may be the first litigation of its kind, RMM has defeated three challenges to the City of Los Angeles’s reliance on the Sustainable Communities Project exemption. The exemption—for Transit Priority Projects that meet other environmental and efficiency standards—was adopted as part of SB 375. The exemption has not been frequently used, presumably because of its rigorous standards for access to transit and other sustainability requirements. But more cities are reexamining the exemption in light of California’s housing crisis and renewed focus on transit, infill development, energy and water efficiency, and other sustainability features. The City, with help from RMM, developed a model for evaluating such projects. The City’s approval was upheld against challenges contained in three separate lawsuits. Tiffany Wright and Elizabeth Pollock represented the applicant, CRM Properties.

101 High Occupancy Vehicle Lane in Santa Barbara Can Move Forward

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RMM, representing the Santa Barbara County Association of Governments and working with attorneys for Caltrans, defeated a challenge to Caltrans’ EIR for the 101 HOV project in Santa Barbara County. The project—an 11-mile HOV lane on Highway 101 from the City of Carpenteria to the City of Santa Barbara—will provide much needed congestion relief to the region. RMM joined SBCAG’s team after previous litigation required Caltrans to revise the EIR for the project. The successful defense of the revised EIR required an in-depth knowledge of the transportation analysis to respond to highly-technical challenges to the analysis, both in response to comments and in litigation. The court’s discharge of the previous writ allows the agencies to move forward with this key piece of transportation infrastructure. Tiffany Wright and Laura Harris represented SBCAG.

RMM Successfully Defends Metro’s Board on 710 North Gap Project

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The Los Angeles County Metropolitan Transportation Authority, along with Caltrans, is in the process of preparing an EIS/EIR for the 710 North Gap Project. For decades, the agencies have considered ways to connect the 710 and 210 freeways. The voters of Los Angeles County approved $780 million in sales tax revenues for the project as part of Measure R. The Draft EIS/EIR for the project considers four build alternatives to close the gap. After the public comment period on the EIS/EIR, Metro’s Board identified the Transportation Systems Management/Transportation Demand Management alternative as its preferred alternative and allocated Measure R funds for the alternative. The City of Rosemead filed suit alleging that Metro’s identification of a preferred alternative and allocation of funds constituted premature “approval” of a project prior to completing the CEQA process. The Los Angeles Superior Court rejected Rosemead’s claims. Tiffany Wright and Laura Harris represent Metro.

RMM welcomes furry intern

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Very Good Girl Sibella joined the firm in January 2018 as an eight-week old labrador/golden retriever puppy. Sibella comes to  us from Canine Companions for Independence (CCI). She is completing a one-year internship in our land use and environmental practice, working with RMM Senior Associate Elizabeth Pollock. During the day, she practices chewing toys, licking faces, taking long naps, and giving lots of love. During her tenure at RMM, she will be developing her skills sitting, staying, and “doing her business” outside. After leaving RMM, Sibella will continue her work with CCI. CCI “is a non-profit organization that enhances the lives of people with disabilities by providing highly trained assistance dogs and ongoing support to ensure quality partnerships.” You may learn more about the program at http://www.cci.org.

Caltrain Electrification EIR Upheld in Litigation Brought by High-Speed Rail Foes

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On September 26, 2016, Judge Goode of the Contra Costa County Superior Court, issued a ruling denying a petition brought by the Town of Atherton and organizations opposed to the statewide high-speed rail project. The court rejected their claims that the Peninsula Corridor Joint Powers Board (JPB), which operates the Caltrain commuter rail system between Gilroy and San Francisco, had illegally “piecemealed” its project to electrify the Caltrain system from the future high-speed rail system, which is planned to share the same electrified track into San Francisco. The petitioners claimed that because a portion of the electrification project funding is coming from the High-Speed Rail Authority and the electrification is needed for future high-speed trains to operate, the JPB should have analyzed both the high-speed train project and the Caltrain electrification activities as one project in the Caltrain EIR. They argued that the failure to do so improperly minimized consideration of project impacts, consideration of mitigation measures, and alternatives. The court rejected all of the petitioners’ arguments, finding that despite the relationship between the two projects, the Caltrain electrification project could properly stand on its own, whether or not the high-speed train system is ever completed on the Peninsula, and that the future operation of high-speed rail on the corridor was appropriately disclosed in the cumulative impacts analysis in the EIR. The ruling is a major victory for Caltrain, and contracts for further design work and eventual construction have already been approved. Sabrina Teller and Elizabeth Pollock represented the JPB in the litigation.  

 

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