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.  

A team of lawyers led by Amy Forbes at Gibson Dunn and Crutcher in Los Angeles were named recipients of “California Lawyer of the Year” for real estate in the March 2016 edition of California Lawyer Magazine.  The award recognized the approval of an NFL stadium in Inglewood on a 60-acre site near the Forum and Hollywood Park Racetrack.  The project also includes a 6,000 seat performance venue and more than 4 million square feet of hotel, office, retail and residential space.  The City Council approved the project just two months after its announcement.  The project was able to achieve such rapid approval by means of the initiative process, which enabled the City Council to approve the project after the voters presented the proposal to the City, based on the California Supreme Court’s decision in Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029.  Whit Manley participated in the effort as CEQA counsel.  California Lawyer’s article on the award is at http://www.callawyer.com/2016/03/real-estate-development/.

On April 8, 2016, Ventura County Superior Court Judge Glen Reiser ruled that the City of Los Angeles complied with CEQA when it certified an EIR and approved a plan mapping out a strategy for upgrading the Los Angeles Airport.  Two lawsuits were filed challenging the City’s decision:  one was filed by the “Alliance for a Regional Solution to Airport Congestion,” and another was filed by the cities of Inglewood and Culver City.  The petitioners sought to blow up the plan in hopes of thwarting upgrades at LAX, and forcing air traffic to other airports in the region.  Following a three-day trial in January 2016, Judge Reiser issued a 118-page ruling rejecting all of the petitioners’ claims.  Whit Manley, together with a team of lawyers led by Margaret Sohagi of the Sohagi Law Group, represent the City of Los Angeles in the litigation.

Senate Bill 4 (SB 4), which was sponsored by Senator Fran Pavley and signed into law on September 20, 2013, required the Department of Conservation and its Division of Oil, Gas, and Geothermal Resources (DOGGR) to prepare an Environmental Impact Report (EIR) in order to study potential environmental impacts from well stimulation treatments. Senior Partner Jim Moose and Associate Elizabeth Sarine worked closely with Aspen Environmental Group and DOGGR staff on the SB 4 EIR.

DOGGR certified the Final EIR for the “Analysis of Oil and Gas Well Stimulation Treatments in California” on July 1, 2015.

The California Association of Environmental Professionals (AEP) has selected the SB 4 EIR for a Merit Award in the category of Outstanding Environmental Analysis Document, to be presented at AEP’s April 4, 2016 conference. The plaque for the award explicitly recognizes the “substantial assistance from the law firm of Remy, Moose and Manley” provided during the preparation of the EIR.

On October 29, 2015, the Third Appellate District issued an unpublished opinion upholding a mitigated negative declaration prepared by the City of Folsom for a trail improvement project along Lake Natoma in the American River Parkway. The project will pave some existing dirt trails to provide ADA-compliant access to the river, rehabilitate eroded areas, remove non-native invasive vegetation and replant native species, and provide a non-motorized boat landing beneath the Lake Natoma bridge at the edge of Folsom’s historic district. Save the American River Association claimed the project was inconsistent with the Folsom Lake State Recreation Area General Plan and American River Parkway Plan, but the court found no substantial evidence in the record to support SARA’s claim that increased use of the project area would conflict with the applicable plans, which designate the area for low intensity recreation. RMM partner Sabrina V. Teller represented the City of Folsom, assisted by associate Elizabeth Sarine and former associate John Wheat.

The Office of Planning and Research has released a preliminary discussion draft of updates to the CEQA Guidelines. OPR invites public comment on those updates by October 12, 2015. The proposed Guidelines address a broad range of topics, such as updates to address efficiency in implementing CEQA, substantive improvements, and technical improvements. Specific amendments address issues such as determining the baseline, deferral of mitigation, exemptions, analysis of energy impacts, water supply, tiering, and many more topics.

The preliminary discussion draft can be found here.

On June 29, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a final rule defining the scope of “waters of the United States” protected under the Clean Water Act (80 FR 37054). The Final Rule was developed partly in response to the U.S. Supreme Court’s decisions in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States. The Final Rule retains the definitions of traditional navigable waters, interstate waters, and territorial seas as jurisdictional waters. Within the definition of jurisdictional waters, the Final Rule includes impoundments and – for the first time – tributaries and all waters adjacent to tributaries. The Final Rule also modifies the definition of a tributary as a water “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” The Final Rule, however, deletes the “waters of the United States” category of “other waters” whose use, degradation, or destruction would affect or could affect interstate or foreign commerce and replaces it with a new category of waters determined to have a “significant nexus” to a traditionally navigable water, interstate water, or the territorial sea. The Final Rule also requires a case-specific “significant nexus” test for certain categories of identified waters (i.e., prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairie wetlands) and for any waters found within a 100-year floodplain or within 4,000 feet of a water of the U.S. Based on prior regulation and practices, the Final Rule also expressly excludes a number of waters and features such as artificial lakes, waste treatment ponds, detention and retention basins, and percolation ponds for wastewater recycling. By clarifying which waters are subject to Clean Water Act jurisdiction, the Final Rule is meant to reduce the instances in which permitting authorities would make jurisdictional determinations on a case-by-case basis.

Enacted in late 2013, SB 4 requires state agencies to complete three main tasks in creating a comprehensive regulatory program for oil and gas well stimulation treatments: (1) adopt new temporary and permanent regulations, (2) prepare an EIR on well stimulation as conducted in California, and (3) conduct an independent scientific study. DOGGR released the Draft EIR required under task 2 on January 14, 2015. You can find that Draft EIR here.

The Draft EIR analyzes potential impacts of hydraulic fracturing and other well stimulation treatments, though not all oil and gas recovery operations throughout the state of California. The public is invited to review and submit written comment on the Draft EIR from January 14, 2015, till March 16, 2015. During the comment period, interested parties can also attend six public comment meetings throughout the state to provide verbal and written comments on the Draft EIR. SB 4 requires the Department of Conservation and DOGGR to certify a Final EIR by July 1, 2015. A more detailed discussion of SB 4 is available on our blog.