The year started with a bang for City Hall, thanks to the California Supreme Court’s decision
terminating redevelopment at the end of this month.
On December 29, the court decided that the Legislature acted within its authority in passing legislation
dissolving all California redevelopment agencies in jurisdictions that committed to divert redevelopment
funding to be used for education and public safety. The high court’s decision terminates all
redevelopment agencies as of January 31, and requires all cities and countries to begin immediately the
process of winding down the agencies. Although the court’s ruling applies statewide, its ramifications
loom large for the city of Los Angeles.

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Following recent earthquakes near hydraulic fracturing sites in Ohio, Arkansas, Oklahoma and Colorado, Senator Lautenberg (D-NJ) is calling on the United States Geological Survey (“USGS”) to investigate whether seismic risks are posed by hydraulic fracturing and the related waste disposal process. By letter, Senator Lautenberg urged USGS to conduct: “1) an assessment of the science related to earthquakes caused by disposal of fracking waste fluids, 2) an evaluation of the current risk faced by communities where fracking activity is taking place, and 3) recommended strategies to prevent future earthquakes due to fracking.” The Senator is asking USGS to move quickly on the issue and provide local communities, the states and general public with the information they need to assess the potential dangers associated with hydraulic fracturing.

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Despite the absence of specific legislative authorization delegating to them ruling making authority concerning California’s Green Chemistry program, the California Office of Environmental Health Hazard Assessment(OEHHA) announced today the adoption of its Green Chemistry-Hazard Traits Rulemaking. The adopted rule, which we have previously blogged about here and later here, is stated to be a response to the California Health and Safety Code section 25251, which requires the California Department of Toxic Substances Control(DTSC) to “establish the Toxics Information Clearinghouse, which shall provide a decentralized, Web-based system for the collection, maintenance, and distribution of specific chemical hazard trait and environmental and toxicological end-point data.” The adoption of the regulation becomes effective on January 19, 2012.

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The Los Angeles City Council voted today to not become the successor agency to the city’s Community Redevelopment Agency (CRA) when it dissolves on January 31.  The agency dissolution is the result of the California Supreme Court’s recent decision in California Redevelopment Association v. Matosantos.  While legislators scramble to try and delay that dissolution, each municipality with a redevelopment agency must decide whether to become the successor agency, responsible for overseeing the winding-up of the agency and disposal of all assets.  The City’s Chief Administrative Officer and Chief Legislative Analyst advised the City Council that becoming the successor agency would result in substantial liabilities, including the costs of CRA employees becoming City employees.  Real estate developers and affordable housing advocates challenged that assessment, arguing that the risks of abandoning the many projects under CRA’s jurisdiction were far greater.  Though many members expressed concerns about losing the agency’s institutional knowledge and noted its critical role in economic development and urban revitalization, the City Council ultimately voted against becoming the successor agency.  Instead, the Council asserted that it will work with legislators to clarify the potential liabilities and explore the possibility of choosing to become the successor agency in the near future. 

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Last week, Judge Lawrence O’Neill issued a preliminary injunction against California’s low-carbon fuel standard(LCFS). The LCFS program, which was originally ordered by former Gov. Schwarzenegger in 2007 and later approved by the California Air Resources Board(CARB) in late 2009, would cut vehicle emissions by 10 percent by 2020. Judge O’Neill believes that the LCFS ultimately discriminates against interstate commerce. His ruling reads in part, “California is attempting to stop leakage of GHG emissions by treating electricity generated outside of the state differently than electricity generated inside its border. This discriminates against interstate commerce.” CARB has said they will appeal the ruling and seek a stay on the injunction, as will other environmental groups. This is not a surprise, as the LCFS along with the state’s cap-and-trade program are two key policy initiatives for the state to reduce greenhouse gas emissions. It will be interesting to see if this ruling affects other states in their efforts to begin greenhouse gas reduction programs.

It’s a new year in California, and the green agenda takes another step forward as two new types of stock corporations are created: the public benefit and the flexible purpose corporations. A corporation can file as one of these new types of corporate entities if part of the corporate mission is to improve society and the environment, and the corporation creates a “general public benefit” or “material positive impact on society and the environment.” For background, see last year’s blog on the draft legislation and the Secretary of State’s website.

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The California Supreme Court ruled today that the Legislature acted within its authority to dissolve all state redevelopment agencies to solve the State’s budget crisis.  However, the Court invalidated a related bill that would have allowed redevelopment agencies to continue in existence by making certain voluntary payments to local governments.  The decision will likely trigger new legislative efforts to avoid the drastic consequences of eliminating redevelopment entirely across the state.
 
The decision can be found here:  http://www.courtinfo.ca.gov/opinions/documents/S194861.PDF

In Ballona Wetlands Land Trust v. City of Los Angeles, the Second District of the California Court of Appeal upheld a revised Environmental Impact Report (EIR) for a mixed-use development that was certified by the City of Los Angeles (City) under the California Environmental Quality Act (CEQA). The revised EIR was issued after the petitioners successfully overturned limited portions of a previous EIR. In addition to revising and supplementing the land use, archeological resources and wastewater sections of the revised EIR, the City included a new global climate change section in light of changes in the California legislation regarding greenhouse gases and climate change.

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As published in The Daily Journal
By Shiraz D. Tangri

By Jan. 15, 2012, the state Supreme Court is expected to decide a legislative challenge that will dramatically impact future development of cities across the Golden State. The Court’s ruling on the validity of two controversial bills could forever change the face of California’s redevelopment agencies, possibly obliterating them entirely. Even if the Court upholds the legislation and allows redevelopment agencies to resume operations, the redevelopment landscape is likely to be a far different place from 2012 onwards.

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Earlier this week, the Colorado Oil and Gas Conservation Commission adopted new regulations for hydraulic fracturing. The regulations require hydraulic fracturing operators to disclose information to the public, including the location of the well, the depth of the well, and the well’s name and registration number. The most significant part of the disclosure regulations focuses on the fracturing fluid. The total volume of the fluid used for fracturing must be disclosed as well as whatever the base fluid is, if it is not water. Each additive of the fluid must be identified (by Chemical Abstract Service(CAS) number) as well as its function, and the maximum concentration allowed of each additive. Trade secret additives may be listed by chemical family only, not CAS number. All of this information must be posted on the FracFocus website. The regulations will go into effect on April 1, 2012.

In March of this year, California’s roll-out of AB 32 hit a legal hold up which we blogged about here. The Plaintiffs in the case sought a petition for writ of mandate on a total of eight causes of action in regards to a 2008 Functional Equivalent Document (FED) alternative analysis under the California Environmental Quality Act (CEQA). Judge Goldsmith granted the Plaintiff’s writ of mandate on two of the causes of action in May of this year, requiring the state to further justify its selection of the greenhouse gas cap-and-trade market, in light of alternatives. Finding that the state had adequately justified its selection, on Monday, Judge Goldsmith issued his final ruling on the issue discharging the Peremptory Writ of Mandate, and he wrote in his decision that “respondents having demonstrated satisfactory compliance with the Court’s Peremptory Writ of Mandate.” With this legal hurdle now cleared, California can move forward with AB 32 and its cap-and-trade program.

The U.S. House of Representatives Natural Resources Committee, chaired by Rep. Doc Hastings(R-WA), held their first of multiple oversight hearings today on the Endangered Species Act(ESA). The ESA, originally passed in 1973 and reauthorized in 1988, “provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found.” Chairman Hastings and his committee today examined the impact of how litigation involving the ESA currently is costing the country jobs and preventing the recovery of endangered species.

Chairman Hastings in his opening statement said he believes “it’s the responsibility of this Committee and Congress to ask questions and examine if the original intent of this law is still being carried out two decades later.” He continued onto say that the intent of this set of hearings will be to have an open dialogue to see if there are ways to update the law to make it better for both species and people. In regards to today’s hearing Hastings said, “the litigation mindset that is consuming the ESA has had significant job and economic impacts throughout the West – unnecessarily pitting people against species. During these challenging economic times, America cannot afford runaway regulations and endless lawsuits.”

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In a 29-20 vote on November 15, the PA state Senate approved a bill requiring drilling companies to pay an impact fee on their wells. The fee would be an annual decreasing fee for 20 years, beginning at $50,000 per well. Of this fee, 55 percent of the money would go to Marcellus counties and municipalities, while 45 percent would go to the state for infrastructure, environmental programs and natural gas projects.

The House also passed a bill requiring an impact fee on the county level of an annual decreasing fee of $40,000 per well, shrinking to $10,000 over a 10 year period. Of the fees generated, 75% percent will go to the local county, and 25% to state agencies.

Both proposals have language restricting municipalities’ ability to zone and regulate natural gas drilling.

In response to a petition filed by Earthjustice and several other organizations, EPA stated that it will use the Toxic Substances Control Act (TSCA) to require companies to disclose information regarding "chemical substances and mixtures used in hydraulic fracturing." Earthjustice requested EPA use 15 U.S.C. § 2607 (section 8 of TSCA) to require chemical manufacturers to provide information on all substances used in the exploration and production of oil and gas. EPA has not stated what information will be subject to disclosure, but has limited disclosure to substances used in hydraulic fracturing. EPA will attempt to avoid duplication of "the well-by-well disclosure programs already being implemented in several states," and its regulations will "focus on providing aggregate pictures of the chemical substances and mixtures used in hydraulic fracturing." EPA will develop regulations through a stakeholder process and public comment period in response to an advanced notice of proposed rulemaking. The timeframe for this process is still up in air.

Today, the Senate Environment and Public Works Committee held a hearing entitled, “Legislative Hearing on the Safe Chemicals Act.” The hearing examined Sen. Lautenberg’s(D-NJ) legislation S. 847, the Safe Chemicals Act of 2011. The legislation would amend the Toxic Substances Control Act(TSCA) of 1976, which we have discussed here.

The committee received testimony from Ted Sturdevant, Director of the Department of Ecology for the State of Washington; Charlotte Brody, Director of Chemicals, Public Health and Green Chemistry for the BlueGreen Alliance; Cal Dooley, President and CEO of the American Chemistry Council; Robert Matthews, Counsel at McKenna Long & Aldridge; and Dr. Richard Denison, Senior Scientist for the Environmental Defense Fund. Testimony for each of them can be found here.

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The State Review of Oil and Natural Gas Environmental Regulations (STRONGER) completed its review of Colorado’s hydraulic fracturing regulations, the PDF can be found here.

On 11/10, Colorado issued draft hydraulic fracturing fluid disclosure regulations. This draft, issued by the Colorado Oil and Gas Conservation Commission, seeks to require public disclosure of the composition of hydraulic fracturing water. In particular, the proposed regulations would require operators of each oil or gas well that is fractured in Colorado to disclose to the public:

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The Senate Environment and Public Works Committee has scheduled a hearing for Thursday, November 17, to discuss Sen. Lautenberg’s(D-NJ) “Safe Chemicals Act.” Lautenberg’s bill, S. 847, would amend the Toxic Substances Control Act of 1976. The bill establishes a risk based approach so that the EPA can determine the highest-risk chemicals and focus on those. We previously wrote about the bill here. It would break chemicals down into three classes: immediate risk chemicals; chemicals that require a safety standard determination; and chemicals that need no immediate attention. The hearing will be a joint hearing between the full Senate Environment and Public Works Committee and the Superfund, Toxics and Environmental Health Subcommittee. Lautenberg and Sen. Inhofe(R-OK) held stakeholder meetings, which concluded in recent weeks. Lautenberg views the hearing as the next step in the process and is hopeful the bill will have a markup in December.

Today, the United States EPA released its “Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources.” EPA will examine the full cycle of the hydraulic fracturing process according to the press release. This means the study will focus on five key areas: water acquisition, chemical mixing, well injection, flowback and produced water, and wastewater treatment and waste disposal.

The initial findings of the study will be released to the public in the early part of 2012, while the final report will be issued in 2014.

Industry members believe the EPA is overextending itself and going beyond what Congress requested them to do. While environmentalists believe the study doesn’t believe it does enough and avoids subjects like public safety and air quality around well fields.

For more information on the EPA’s plan for hydraulic fracturing click here.

Today the California Department of Toxic Substances Control (DTSC) released draft regulations for Safer Consumer Products. The regulations establish a four step science-based process to identify safer consumer products. According to a summary the regulations create a four step process which would:

1. Establish a chemicals of concern list, consisting of roughly 3,000 chemicals, and specify a method to identify additional chemicals of concern.
2. Require DTSC to evaluate and prioritize products that contain chemicals on the chemicals of concern list in order to develop a list of “Priority Products” for which an alternative assessment must be conducted.
3. Require manufacturers, importers and retailers to notify DTSC if their product is one of those on the “Priority Product” list so that DTSC can post it on its website. Responsible entities then must perform an alternatives assessment for the product and the chemicals of concern to determine how to best limit exposure posed by those chemicals.
4. And lastly the regulations will require DTSC to identify and impose regulatory responses to limit potential adverse public health and or environmental impacts posed by the product or the chemicals and the proposed alternative product and chemicals. 

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On Thursday, the United States Environmental Protection Agency (EPA) announced plans to begin regulating wastewater discharges associated with hydraulic fracturing and shale gas production. The rulemaking process, which will begin in 2014, is geared towards developing standards for the disposal of wastewater from shale gas drilling.

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