Best Best & Krieger News Feed

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.

Legislature Passes Pair of Significant New Climate Change Bills

29 Aug 2016 00:00:00 -0800

In the final days of its session, the California Legislature passed two climate change bills that expand existing laws aimed at reducing statewide greenhouse gas emissions. Senate Bill 32 (Fran Pavley, D-Agoura Hills) expands California’s GHG emissions reduction program and Assembly Bill 197 (Eduardo Garcia, D-Coachella) increases legislative oversight of the California Air Resources Board.

SB 32 builds upon AB 32, California’s 2006 landmark climate change law, and codifies an additional target first identified by Gov. Jerry Brown in a 2015 executive order. SB 32 adds section 38566 to the Health and Safety Code, requiring that CARB ensure that statewide GHG emissions are reduced to at least 40 percent below 1990 levels no later than Dec. 31, 2030. This 2030 target will serve as a concrete, legislatively approved goal for public agencies to consider when developing California Environmental Quality Act thresholds for GHG analysis. Additionally, the 2030 target will assist public agencies in their preparation of up-to-date climate action plans - plans that can streamline GHG analysis in CEQA documents.

AB 197 establishes a Joint Legislative Committee on Climate Change Policies, comprised of members from both the Assembly and Senate. The new committee will study climate change policies, make recommendations to the Legislature and most significantly, provide greater oversight of CARB. Specifically, AB 197 also adds two members of the Legislature as ex-officio, non-voting members to CARB and establishes six-year terms for all voting CARB members.

The two bills are “double-joined” and become operative only if both are enacted and become effective on or before Jan. 1, 2017. Brown indicated he will sign both bills, stating, “With these bills, California’s charting a clear path on climate beyond 2020.” Brown has until Sept. 30 to sign SB 32 and AB 197 into law.

If you have any questions about these new laws 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.

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.

Office of Planning and Research Proposes Revisions to State CEQA Guidelines

25 Jan 2016 00:00:00 -0800

The California Office of Planning and Research has issued proposed revisions to the State CEQA Guidelines implementing Senate Bill 743 (2013). SB 743 directed OPR to update the Guidelines to include alternative methods of measuring transportation impacts under CEQA, thus changing the metric for measuring traffic impacts from level-of-service to vehicle miles traveled. While OPR released an initial draft of proposed updates to the Guidelines in August 2014, it has now made numerous revisions intended to reflect public input and incorporate state policies regarding greenhouse gas emissions reductions.

The proposed revisions include several changes that may have significant implications moving forward. For example, much of the detail OPR originally proposed to include in Guidelines section 15064.3 and Appendix F was moved to a new draft technical advisory. While this advisory is not binding on lead agencies, it provides “guidance” on how to assess VMT, and contains recommendations regarding thresholds of significance, safety and mitigation measures.

Additionally, OPR has now recommended a two-year “opt-in” period to accommodate those agencies that need time to work through the transition from an LOS to a VMT-based analysis. If adopted, the revisions would apply statewide after this two-year period.

Deadline for comments is 5 p.m. on Feb. 29.

For more information or assistance preparing and/or submitting comments to OPR, 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.

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.

California Governor Signs Legislation Establishing Significant New Energy Goals

07 Oct 2015 00:00:00 -0800

Today, Gov. Jerry Brown signed SB 350 into law, setting two ambitious climate change-related goals: a 50 percent increase in building energy efficiency, and a target of 50 percent of the state utilities’ power coming from renewable energy sources. Both goals are to be met by the year 2030.

SB 350’s Renewable Portfolio Standard ratchets up California’s commitment to renewable energy. Prior legislation set a 33 percent RPS, requiring utilities to source at least 33 percent their electricity from renewable sources like wind, solar, geothermal and biogas by the year 2020. The 33 percent RPS goal has been credited with spurring substantial development in solar infrastructure within California.

SB 350 also provides incentives for different forms of clean tech, demand response and automation technology (for example, building systems that automatically shift energy use to off-peak hours), better integration of solar power and electric vehicles, and energy storage.

In terms of building energy efficiency, SB 350 not only addresses efficiency in new buildings, but existing buildings as well, in part through the use of expanded existing building retrofit funding.

SB 350 also defines “energy efficiency,” which could have implications in the CEQA context. SB 350 provides that energy efficiency, at least for the purposes of achieving the goals set in SB 350, “shall be measured taking into consideration the overall reduction in normalized metered electricity and natural gas consumption.” This suggests that consideration of more subjective, qualitative and immeasurable energy use reductions (for example, programs encouraging employees to rideshare to work) may no longer be able to serve as the foundation for determination of a project’s of energy efficiency.

If you have any questions about this legislation or how it might impact your agency, please contact one of the attorney authors of this legal alert listed at right in the firm's Environmental Law & Natural Resources practice group, or your BB&K attorney.

2015 Annual Conference

21 Sep 2015 00:00:00 -0800

Best Best & Krieger LLP partners Roger Crawford, Michelle Ouellette and of counsel Fernando Avila are among the speakers at the California Special District Association's 2015 Annual Conference.

BB&K Speakers:

Michelle Ouellette and Fernando Avila, "CEQA: What Special Districts Need to Know in 2015 and Beyond"
This panel will address the recent changes to CEQA from legislation and cases decided in 2015. Panelists will discuss how endangered species laws integrate with CEQA requirements for biological resources, how to effectively use CEQA exemptions following recent California Supreme Court rulings and how to analyze the impacts of climate change and greenhouse gases as part of public projects.
Tuesday, Sept. 21
2 - 3:15 p.m.

Roger Crawford, "Negotiating with Employee Organizations - How to Avoid Disasters"
A summary of legislative changes related to public sector labor relations over the past year and a review of recent decisions from the Public Employment Relations Board affecting how special districts must interact with employee organizations.
Tuesday, Sept. 21
3:30 - 4:30 p.m.

When
September 21-24, 2015

Where
Monterey Marriott Hotel
350 Calle Principal
Monterey,CA 93940

For more information or to register, click here.

Preliminary Discussion Draft of CEQA Guidelines Amendments Released

13 Aug 2015 00:00:00 -0800

The California Office of Planning and Research has issued a preliminary discussion draft of revisions to nearly 30 different sections of the CEQA Guidelines. This marks the first time since the late 1990s that such a comprehensive update to the Guidelines has occurred.

The proposal package would revise the Appendix G environmental checklist to remove redundant questions and, in compliance with recent legislation, identify new questions related to tribal cultural resources, transportation and wildfire. There are also proposed revisions relating to tiering of environmental documents, the transit-oriented development exemption, and the so-called “existing facilities” exemption.

Of particular note, the proposed revisions would also provide that:

Environmental impact reports must include energy impact analysis addressing building design, transportation, equipment use, and location.
A lead agency may not apply significance thresholds in a way that precludes consideration as to whether, despite compliance with the threshold, there may still be a significant environmental effect.
Where a lead agency demonstrates, with substantial evidence, that use of an existing conditions baseline for measuring a project’s impacts would be either misleading or without informative value, an agency may use a different baseline.
A lead agency must show that it has met four requirements before deferring specific mitigation details, namely that it has: 1.) fully evaluated the significance of the impact and explained why it is not feasible to formulate mitigation presently; 2.) commits to mitigation; 3.) lists mitigation options; and 4.) adopts specific performance standards.
A lead agency may provide a general response to an EIR comment when the comment does not contain or specifically refer to readily available information, or does not explain the relevance of evidence submitted with the comment.

The proposal package does not address transportation analysis regarding vehicle miles traveled – instead, OPR is finalizing a separate proposal for these changes in compliance with SB 743. The package also does not propose changes related to the analysis of greenhouse gas emissions, or changes clarifying whether CEQA requires analysis of impacts of the environment on a project. OPR notes that cases touching on these issues are currently pending before the California Supreme Court.

OPR is accepting public comments on the proposed revisions to the Guidelines through Oct.12 at 5 p.m. Comments may be submitted electronically to CEQA.Guidelines@resources.ca.gov.

For more information about how the proposed amendment package could affect your agency, or for assistance in drafting a comment letter on the proposed amendments, 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.

Uncertainty of Legislative Earmarks Not Enough to Deem Mitigation Infeasible

07 Aug 2015 00:00:00 -0800

State agencies cannot declare mitigation infeasible for construction projects on the grounds that the California Legislature has not — and may not in the future — earmark funds specifically for fair-share off-site mitigation costs, the California Supreme Court has held.

Earlier this week, the Supreme Court issued its opinion in City of San Diego v. Board of Trustees of the California State University. The case stems from the California State University Board of Trustees’ campus master plan for San Diego State University. To accommodate proposed growth of more than 11,000 new students and more than 1,200 new faculty and staff members, the master plan proposes a suite of major campus expansion construction projects.

The environmental impact report for the project identified myriad near- and long-term traffic impacts at off-campus locations within the City of San Diego. For each affected location, the Board identified the improvements that would mitigate the impacts and estimated the project’s fair-share contribution of the mitigation costs. However, relying on dicta in the Supreme Court’s 2006 opinion in City of Marina v. Board of Trustees, the Board concluded that committing to paying those funds was infeasible. Specifically, the Board concluded that the availability of such funds was necessarily conditioned upon requesting and obtaining funds from the California Legislature. Because the decision to earmark such funding was out of the Board’s hands, the Board concluded that mitigation was infeasible and the traffic impacts were significant and unavoidable.

The Court rejected the Board’s position and stressed that “mitigation is the rule,” regardless of whether the Legislature appropriated funds for the mitigation specifically, and regardless of whether the relevant impacts are on- or off-site. Any holding otherwise, the Court reasoned, would result in off-site mitigation being found infeasible for many, if not all, state projects. Ultimately, the Court directed the Board to prepare a new EIR citing the tenet that “CEQA does not authorize an agency to proceed with a project that will have significant, unmitigated effects on the environment … unless the measures necessary to mitigate those effects are truly infeasible.”

In support of the City of San Diego, Best Best & Krieger attorneys filed an amicus brief in this case. BB&K is also counsel to a public agency client in a similar matter against the Board, which is now pending review in the California Supreme Court.

For more information on how this decision may impact your public agency, 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.