Best Best & Krieger News Feed

Tracking State and Federal Grant Money - Cap and Trade & AB 1613

13 Oct 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Ryan Baron will serve as a panelist on "Tracking State and Federal Grant Money - Cap and Trade & AB 1613" at 2016 Sustain OC Annual Conference & Expo.

Ryan will be discussing the recent enactment of AB 1613 and SB 859. The bills direct $900 million in California cap and trade revenue to the Air Resources Board and CalRecycle for clean vehicles, transit oriented development, waste diversion, solar programs and disadvantaged community programs. Ryan will be discussing opportunities to obtain state grants.

When
Thursday, Oct. 13
9:20 - 9:50 a.m.

Where
UCI Applied Innovation
5141 California Ave., Suite 250
Irvine, CA 92617

For more information or to register, click here.

Four New California Cap and Trade Bills Fund Programs

05 Oct 2016 00:00:00 -0800

With California’s cap and trade program suffering from legal challenges, decreasing auction revenue and general criticism of the program’s effectiveness, Gov. Brown signed several bills in Sept. that will help fund state and local programs and projects that reduce greenhouse gas emissions. Budget Committee bills Senate Bill 859 and Assembly Bill 1613, and AB 2722 (Burke, D-Inglewood) directed $900 million in cap and trade revenues to various California agencies and programs. AB 1550 (Gomez, D-Los Angeles) increases the amount of cap and trade auction proceeds that must go to projects benefitting disadvantaged communities. These appropriations should provide significant financial opportunities for local agencies and businesses with environmental projects and programs in need of funding.

AB 1613 and SB 859 appropriate $900 million for fiscal year 2016-17 and reserve $462 million for appropriation in future years. The bills would direct cap and trade revenues to a variety of state agencies, including the Air Resources Board, Strategic Growth Council, Transportation Agency, Natural Resources Agency, Department of Food and Agriculture, Department of Forestry and Fire, and CalRecycle. Cap and trade revenues will fund programs such as clean vehicle rebates, enhanced fleet modernization, heavy-duty and off-road vehicle investments, transit-oriented development and intercity rail, urban greening, methane emission reduction from dairy and livestock operations, urban forestry and assistance to disadvantaged communities.

AB 2722 creates the Transformative Climate Communities Program, administered by the Strategic Growth Council, for broad-based GHG emission reduction projects in disadvantaged communities. As part of the implementation for AB 2722, the Council has already released a notice of proposed rulemaking soliciting comments on the development of grant guidelines.

AB 1550 modifies cap and trade laws to require that at least 25 percent of auction proceeds go to projects benefitting disadvantaged communities and at least an additional 10 percent for low-income households and communities.

If you have any questions about these new laws or how they may impact your organization, please contact the attorney author of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Air Quality District’s CEQA Thresholds Limited

18 Aug 2016 00:00:00 -0800

A significant new decision that could impact lead agencies’ California Environmental Quality Act analysis of toxic air contaminants was handed down this week by a California appellate court. The First District Court of Appeal upheld the CEQA thresholds of significance adopted by the Bay Area Air Quality Management District, which were challenged by a building industry group, but found that the thresholds — as to toxic air contaminants — may be used in only limited circumstances.

The decision comes in the wake of a California Supreme Court decision rendered late last year, which sent the case back to the lower appellate court. In 2010, the District adopted thresholds of significance that set a limit on the level of toxic air contaminants and particulate matter that could be experienced by residents and workers brought to an area as a result of a proposed project (“receptor thresholds”). The California Building Industry Association challenged these thresholds on grounds that CEQA does not require an analysis of an existing condition’s impact on a new project’s occupants.

Last year in California Building Industry Association v. Bay Area Air Quality Management District, the Supreme Court agreed with CBIA, finding that CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users and residents. The Court struck down a portion of State CEQA Guidelines section 15126.2(a) on grounds it was inconsistent with this general rule and therefore unauthorized by CEQA. The Court explained that the rule against requiring analysis of an existing condition’s impacts on a project’s users would not apply where a project could exacerbate existing environmental hazards. The Court remanded the case to the Court of Appeal to determine whether the District’s receptor thresholds were consistent with its decision.

On remand, the District acknowledged — and the appellate court agreed — that a lead agency cannot require a project proponent to obtain an EIR or implement mitigation measures based solely on the impact the existing environment would have upon future users or residents. Nonetheless, the District argued that the receptor thresholds did not need to be set aside because there were legitimate circumstances in which they could be utilized. The Court of Appeal ruled on each circumstance raised:

The voluntary use of receptor thresholds must be limited to an agency’s proposed projects, and cannot be imposed on third party project proponents.
Receptor thresholds can be applied to any new project to determine whether it would worsen existing conditions and thus affect future users of the project.
Receptor thresholds can be used by a school district acting as a lead agency to assess such hazards.
A lead agency charged with CEQA review of a project governed by certain housing development exemption provisions can apply the receptor thresholds to determine whether air quality posed a health risk to future occupants of such a qualifying housing project.
While the District argued the receptor thresholds could be used to determine whether a particular project is consistent with a general plan and the Court did not rule out the possibility, it declined to make such a determination because the District did not provide the Court with a concrete example of such a use.

For the above reasons, the Court concluded that a lead agency may rely on the receptor thresholds in certain circumstances. The Court remanded the case to the trial court with instructions to partially grant CBIA’s petition for writ of mandate, thereby invalidating that portion of the District’s CEQA Guidelines that suggest that lead agencies should apply the thresholds to “routinely assess the effect of existing environmental conditions on future users or occupants.”

If you have any questions about this opinion or how it may impact your city agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

New Guidance Issued for Analyzing Climate Change in National Environmental Policy Act Documents

15 Aug 2016 00:00:00 -0800

The White House’s Council on Environmental Quality has issued new guidance directing federal agencies to evaluate greenhouse gas emissions and climate change when preparing documents for proposed agency actions under the National Environmental Policy Act. Although CEQ’s guidance document is, as the name indicates, just guidance, it will likely result in changes to the way NEPA documents are drafted and provide ammunition to project opponents if the guidance is not followed.

A key point made in the new guidance document is that federal agencies should quantify GHG emissions when possible, regardless of a proposed action’s size. This emphasis appears to have stemmed from concern that GHG emissions might be overlooked on the basis that climate change occurs on a global scale and a single action makes only a small contribution to global conditions. CEQ’s guidance makes clear that agencies should not limit themselves to calculating a proposed action’s emissions as a percentage of sector, nationwide or global emissions in deciding whether or to what extent to consider climate change impacts under NEPA.

The emphasis on quantifying GHG emissions for all projects is a change from CEQ’s previous draft guidance document, which included a threshold of 25,000 metric tons of CO₂-equivalent emissions before quantification was warranted. The new guidance eliminates this threshold and instead recommends that agencies quantify a proposed agency action’s direct and indirect GHG emissions without “establish[ing] any particular quantity of GHG emissions as ‘significantly’ affecting the quality of the human environment.” Although federal agencies may apply the rule of reason when determining the level of review that is appropriate, CEQ’s guidance recommends that where agencies do not quantify a proposed action’s anticipated GHG emissions “agencies include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available.”

In addition to other directives, CEQ’s guidance document makes clear that NEPA analyses should evaluate not only a proposed action’s impact on climate change, but also the effects of climate change on the proposed action. This approach diverges from environmental review under the California Environmental Quality Act, where documents do not need to consider the effects of the environment on a project, as recently confirmed by the California Supreme Court. Agencies should be mindful of this divergence when preparing joint NEPA/CEQA documents.

CEQ’s new guidance document will impact future agency actions subject to NEPA and potentially even agency actions currently undergoing NEPA review. As a result, agencies and project proponents should work closely with legal counsel to ensure their NEPA documents are consistent with CEQ’s new guidance.

If you have any questions about the new guidance or how it may impact your organization, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your B B&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

EPA Issues New Regulation Governing Air Quality Standards for Ozone

13 Oct 2015 00:00:00 -0800

The United States Environmental Protection Agency issued a final rule earlier this month strengthening the National Ambient Air Quality Standards for ground-level ozone, changing it from 75 parts per billion to 70 ppb. EPA believes the updated standards will serve to protect the public from adverse health effects associated with long-term ozone exposure, such as asthma.

While the regulatory action may serve to protect public health, it could also prove costly for California’s public agencies. Since 2008, California has spent nearly $3 billion on funding innovative technologies to combat ozone pollution, such as zero-emission trucks and buses and near-zero emission freight equipment. Even with these investments, EPA believes California will likely need to undergo a “transformational change” to meet the updated standards. According to EPA, the State may need to “transition to largely zero or near-zero emission vehicle technologies.”

As a result of this recent rulemaking, the California Air Resources Board will need to submit an Infrastructure State Implementation Plan to EPA. This I-SIP is due in 2018, and will detail the regulatory programs and resources California plans to utilize to implement the new ozone standards. While it is still early in the regulatory process, EPA estimates that a number of California counties will have attainment dates ranging from 2032 to 2037.

For more information or to discuss how these standards may affect your agency or CEQA process, please contact the attorney authors of this legal alert listed to the right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Senate Bill 4 to Provide for Additional Regulation of Fracking Activities in California

25 Sep 2013 00:00:00 -0800

Last Friday, the governor signed Senate Bill 4, which addresses the controversial practice of hydraulic fracturing (fracking) in California. Under existing California law, the state Division of Oil, Gas and Geothermal Resources (DOGGR) is responsible for issuing permits for the drilling and operation of oil and gas wells. Senate Bill 4 would expand the regulation of fracking in California and would require DOGGR, in conjunction with the other state and local agencies in charge of water and air resources, to develop regulations that address fracking by January of 2015. Depending on the extensiveness of the regulations enacted, oil and gas companies may soon be pressing forward to mine the Monterey Shale Formation and other oil bearing formations, which are estimated to hold more than 15 billion barrels of oil, most of which is only accessible through fracking extraction.

Under SB 4, DOGGR’s regulations will implement a fracking permit system in an attempt to ensure that geologic and hydrologic formations are isolated during fracking operations. The regulations will require the construction of wells and well casings to meet state standards and will require operators to disclosure the composition and disposition of well stimulation fluids used in fracking. Operators will be able to prevent the public disclosure of certain components of their well stimulation formulas through a trade secret protection provision in the Bill, however the protected information must be disclosed to DOGGR. As part of the permit application process, operators will be required to develop and submit water management plans that estimate and identify the amount and source of water and recycled water to be used in the fracking operation and specify how the water will be disposed of after the fracking operation is complete. Permits will expire after one year and will be available for public review.

The fracking regulations will include a public notice procedure that requires operators to notify area property owners and tenants at least 30 days prior to the start of fracking operations. Operators will be required to notify DOGGR at least 72 hours prior to the actual start of fracking a well and the regulations will provide area property owners and tenants with a right to water quality sampling at the expense of the fracking operator. These public noticing and permitting requirements should enhance the level of transparency available on fracking operations in California, which are currently below that required by other states.

For further information on the effects of Senate Bill 4, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Court of Appeal Addresses Greenhouse Gas Emissions Analysis Under CEQA

20 Aug 2013 00:00:00 -0800

The Court of Appeal for the Third District issued its ruling Monday in Friends of Oroville v. City of Oroville. Finding an environmental impact report’s greenhouse gas emissions (GHG) analysis deficient, the court’s ruling provides a road map as to what constitutes substantial evidence supporting an agency’s GHG impacts determination under CEQA. It also confirms that a lead agency may employ a threshold of significance for GHG emissions which asks whether a project would hinder or delay the state’s ability to meet AB 32’s reduction targets.

In a challenge to the City of Oroville’s environmental impact report (EIR) for a Walmart expansion, the court concluded there was insufficient evidence supporting the city’s finding that the project’s GHG emissions would have a less than significant environmental impact after mitigation. The ruling was primarily based on the city’s failure to calculate the existing Walmart’s emissions, and failure to either quantitatively or qualitatively estimate the effect of the project’s mitigation measures on emissions. These calculations, the court concluded, must be done before the city can reasonably determine whether a project’s GHG emissions will result in a significant or less than significant impact.

The court also rejected the EIR’s comparison of project GHG emissions against statewide emissions as a basis for determining whether the project supports or hinders the state’s ability to meet AB 32’s GHG reduction goals. Calling this comparison “meaningless” and “a comparison worse than apples to oranges” the court noted that the emissions of a single store would always look insignificant against California’s total emissions. The relevant question for the project at issue was instead whether a project represents a reduction of emissions in line with AB 32’s goal of reducing “business-as-usual” emissions by approximately 30 percent by the year 2020.

Similarly, the court rejected the EIR’s reasoning that consistency with the AB 32 Scoping Plan was substantial evidence supporting the determination that impacts would be less than significant. The Scoping Plan, developed by the California Air Resources Board, outlines policies and measures to achieve the goals of AB 32, yet most do not apply to individual development projects. The court held that placing such weight on Scoping Plan consistency to sustain the city’s finding ignores the fact that the EIR did not provide figures regarding the existing store’s emissions, or the effect of the project’s mitigation measures.

If you have any questions about this case or how it might impact your agency, please contact Michelle Ouellette, Charity Schiller, Sarah Owsowitz or any attorney in Best Best & Krieger LLP’s Environmental Law & Natural Resources practice group.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Court of Appeal Rules Setting Thresholds is Not a "Project" Under CEQA

14 Aug 2013 00:00:00 -0800

Yesterday, the Court of Appeal for the First District issued its ruling in California Building Industry Association v. Bay Area Air Quality Management District. In a win for public agencies, the court held that establishing thresholds of significance is not a “project” subject to its own California Environmental Quality Act (CEQA) review. At issue in this case were the air quality and the greenhouse gas emissions CEQA thresholds adopted by the Bay Area Air Quality Management District in 2010.

The court’s ruling clarifies that as long as a public agency adheres to the process outlined in the State CEQA Guidelines for adopting generally applicable thresholds of significance, the agency is not also required to conduct a separate environmental review of potential impacts of implementing those thresholds. The court held that the State CEQA Guidelines, which require that thresholds be subject to public review and be supported by substantial evidence, do not also require preparation of an environmental impact report or other CEQA document. Such an effort, the court concluded, would be unnecessary and largely duplicative of the process already required.

Under the State CEQA Guidelines, public agencies are encouraged to establish “thresholds of significance” that are to be used to determine the significance of a project’s impacts on the environment. The District has published thresholds of significance for use by agencies conducting CEQA review of projects’ air quality impacts in the San Francisco Bay Area. In response to more stringent federal and state air quality standards and the passage of AB 32, the District updated its local CEQA guidelines in 2010.

The California Building Industry Association (CBIA), concerned that the new thresholds could discourage infill development and make the environmental review process for such development too burdensome and expensive, challenged the thresholds on grounds the District was required to conduct CEQA review of the thresholds prior to their adoption. CBIA alleged that the new thresholds’ focus on the potential impacts of locating development near sources of toxic air contaminants and particulate matter (emissions often concentrated in urban areas) would indirectly push development out into the suburbs, ultimately leading to traffic congestion, air pollution and greenhouse gas emissions that would go unanalyzed. In addition to ruling that the State CEQA Guidelines do not require such a review, the court also reasoned that the CBIA’s alleged environmental impacts were speculative and not reasonably foreseeable.

If you have any questions about this case or how it might impact your agency, please contact Michelle Ouellette, Sarah Owsowitz, Alisha Winterswyk or any attorney in Best Best & Krieger LLP’s Environmental Law & Natural Resources practice group.

Trial Court Overturns Air Quality District's CEQA Thresholds

09 Mar 2012 00:00:00 -0800

In a ruling that could have statewide ramifications, the Alameda County Superior Court has ordered the Bay Area Air Quality Management District (BAAQMD) to set aside adoption of standards for determining the significance of a project’s air quality and greenhouse gas emissions. Further, the court ordered the district to take "no further action to disseminate" those standards until and unless it completes a California Environmental Quality Act (CEQA) review.

In 2010, BAAQMD set forth standards of significance for assessing the impact, under CEQA, of development projects' air quality and greenhouse gas-related emissions. The thresholds are currently used by lead agencies throughout the district. Depending on how broadly this decision is applied, air districts and other lead agencies around the state could be drawn into litigation over whether or not they are required to conduct CEQA review before adopting their own CEQA thresholds on topics such as greenhouse gas emissions.

The court's ruling, in California Building Industry Association v. Bay Area Air Quality Management District, is based on a finding that the thresholds constitute a "project" under CEQA, because they may cause a reasonably foreseeable indirect physical change in the environment. BAAQMD argued that the thresholds were not a "project," because they were only a set of policies, and not mandatory on other agencies. The court rejected this position, finding that the thresholds are more like the CEQA Guidelines issued by the state's Office of Planning and Research: They are not flexible and are not subject to any case-by-case appropriateness determination. Ultimately, BAAQMD argued that even if the thresholds were a "project" under CEQA, the court should find them exempt from further review under CEQA's "common sense" exemption. Given BAAQMD's consistent prior position that CEQA did not apply to the thresholds, the court rejected this argument as a post-hoc justification.

It is unclear whether BAAQMD will choose to appeal the decision or proceed with CEQA review of its thresholds.

For more information about how to proceed with using CEQA thresholds in light of this decision, or how to conduct CEQA review now that BAAQMD's thresholds have been set aside, please contact Michelle Ouellette, Fernando Avila, Sarah Owsowitz in the Best Best and Krieger's Environmental Law and Natural Resources practice group, or your BB&K attorney.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

One of the Nation’s Largest Air Quality Districts Selects BB&K as Special Counsel

08 Oct 2011 00:00:00 -0800

For Immediate Release: Oct. 8, 2011
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

LOS ANGELES _ The South Coast Air Quality District Management, which develops regulations to abate some of the nation’s dirtiest air, has hired Best Best & Krieger LLP as special counsel to handle legal cases involving air quality and the California Environmental Quality Act known as CEQA.

The firm also was hired to handle employment issues for the district.

“The district is at the forefront of issues relating to air pollution and climate change, and we are excited to be working on cases involving those important issues,” said Piero Dallarda, the BB&K attorney who will serve as special counsel on air quality and CEQA cases.

The South Coast AQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino counties.

Primarily a well-known litigator, Dallarda’s practice focuses on natural resources, land use and toxics litigation. In 2009, Dallarda successfully argued before a federal judge that his client, a Southern California water district, did not breach its contact in a case that involved water rights claims brought against the district by the U.S. government. The favorable ruling saved the water district from spending $300 million for a wastewater treatment facility.

In addition, Dallarda serves as special counsel to the Mojave Desert Air Quality Management District.

The district’s governing board, at its July 8 meeting, approved the review of 20 law firms to help with its environmental cases and later chose BB&K and another firm on an as-needed basis.

Separately, the AQMD recently hired Arlene Prater, a BB&K attorney in San Diego, to represent them as needed in employment matters, including litigation.