The California Environmental Protection Agency (Cal/EPA) along with the Office of Environmental Health Hazard Assessment (OEHHA) have released the California Communities Environmental Health Screening Tool, Version 1 (CalEnviroScreen 1.0). The agencies had previously released two drafts for CalEnviroScreen last summer and most recently at the beginning of this year. Some of the comments received on the first two drafts were used to improve the tool. The tool provides the state the ability to comprehensively screen the state and determine which communities are most burdened by multiple sources of pollution. It also presents statewide results of the analysis using the screening tool. To visually illustrate the results, there is an online map that shows the zip codes burdened with the highest pollution impact to lowest impact, certain to cause concern by residents in those high impact zip codes.
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Release of a new draft of California’s “CalEnviroScreen” is expected before the end of 2012. Being developed by the Office of Environmental Health and Hazard Assessment (OEHHA) with the California Environmental Protection Agency (Cal/EPA) , CalEnviroScreen is a tool to create “scores” for communities based on environmental, health and socioeconomic data, such as asthma rates, low birth weight infants, traffic density, and educational attainment levels. The tool will allow for assessment of disproportionate environmental impacts in disadvantaged communities. The uses of the tool appear to be open-ended at this point, from helping Cal/EPA prioritize its own internal resources for distribution of grants and prioritizing clean up sites, to being a tool that project proponents and local governments may use in land use decisions and in CEQA documents, particularly in a cumulative impacts assessment.
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As consumers have become more environmentally conscious, manufacturers have increasingly used environmental benefit marketing claims to promote sales of their products. The Federal Trade Commission (FTC) has created guidelines, known as the Green Guides, to aid marketers in properly utilizing environmental benefit claims, out of concern that consumers’ perceived environmental benefit may exceed the actual environmental benefit provided by the manufacturer. On October 1, 2012, the FTC released its final revisions to its Green Guides after a multiyear investigatory process, which included reviewing comments submitted by companies, trade organizations, government entities and individuals. This advisory outlines the major changes contained within the final revisions to the Green Guides.
The advisory is provided in PDF on the Alston & Bird website:
http://www.alston.com/advisories/products-liability-ftc-green-marketing-guides
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The California Natural Resources Agency issued a notice for proposed regulations that would amend the California Environmental Quality Act(CEQA) to streamline environmental review for qualifying infill projects. The objective of the regulations is to “streamline the environmental review process for eligible infill projects by limiting the topics subject to review at the project level where the effects of infill development have been addressed in a planning level decision or by uniformly applicable development policies.”
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On Tuesday, the Bureau of Land Management (BLM) and the Department of Energy (DOE) jointly released a Final Solar Energy Development Programmatic Environmental Impact Statement (Solar PEIS) for a new program to facilitate development of utility-scale solar energy production on lands owned by the Federal government. The Solar PEIS identifies 17 Solar Energy Zones (SEZs) totaling about 285,000 acres in six western States (California, Nevada, Arizona, Utah, New Mexico and Colorado) as priority areas for utility-scale solar development because they have excellent solar resources, are close to transmission lines and would not create substantial conflicts with natural resources. The Solar PEIS also identifies other “variance” areas where such projects might be considered areas excluded due to environmental concerns. It also establishes a series of best management practices and mitigation measures likely to be imposed by BLM and DOE on all solar projects approved or financed in part by those agencies.
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On June 1, 2012, the Ninth Circuit Court of Appeal ruled that the U.S. Endangered Species Act (ESA) requires the U.S. Forest Service to consult with federal wildlife agencies prior to allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species. Specifically, in Karuk Tribe of California v. U.S. Forest Service, the Court held that approval of an NOI constitutes an “agency action” under section 7 of the ESA because it involves an affirmative, discretionary decision about whether, and under what conditions, to allow mining to proceed under a NOI (the full opinion available at http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf). Furthermore, when mining activities that may cause a disturbance to surface resources are conducted in critical habitat of a listed species, such activities “may affect” a listed species or its critical habitat as that term is used in the ESA. However, the Court recognized that informal consultation, rather than formal consultation, would likely be required for a NOI. The lawsuit arose from the approval of four NOIs that allowed motorized sluicing and mechanical suction dredging along the Klamath River.
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Last week, the United States Environmental Protection Agency released its draft Underground Injection Control (UIC) Program Guidance for Class II wells that utilize diesel fuel as a fracturing fluid or as a component of a fracturing fluid in hydraulic fracturing operations. The draft guidance provides recommendations for UIC permit writers related to permit duration and well closure, permit application and review, area of review, and well construction, including mechanical integrity testing, financial responsibility, and public notification. The draft guidance identifies the following six substances by their chemical abstract service (CAS) numbers, which would trigger Safe Drinking Water Act (SDWA) requirements if injected as a component of hydraulic fracturing fluid: 68334-30-5, 68476-34-6, 68476-30-2, 68476-31-3, 8008-20-6, and 68410-00-4. According to the fact sheet for the draft guidance, it is “intended to provide information for EPA permit writers issuing permits under the Safe Drinking Water Act (SDWA) to ensure protection of underground sources of drinking water (USDWs).” The draft guidance is open for 60 days for public comment. In the interim, while this guidance undergoes public notice and comment, EPA expects that permitting decisions concerning hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis. EPA further expects that the draft guidance will not be cited as a basis for such permitting decisions.
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Today, the Department of Interior (DOI) released its draft rule which would require public disclosure of chemicals used in hydraulic fracturing on public and Indian lands. The rule, created by the Bureau of Land Management (BLM), would “(1) provide disclosure to the public of chemicals used in hydraulic fracturing on public land and Indian land, (2) strengthen regulations related to well-bore integrity, and (3) address issues related to flowback water.” To coincide with the proposed rule the BLM also released an economic analysis.
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Today, the United States Supreme Court, in Sackett v. U.S. Environmental Protection Agency, held that a compliance order issued by the U.S. Environmental Protection Agency (EPA) for alleged violations of the Clean Water Act (CWA) was a “final agency action” under the Administrative Procedure Act (APA) and was judicially reviewable as the CWA does not preclude judicial review under the APA. Click on the following link for a copy of the full opinion: http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf
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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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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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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
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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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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.
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On October 12, the Pennsylvania Department of Environmental Protection (PaDEP) released draft technical guidance for single source determinations for oil and gas operations, otherwise known as “air aggregation” determinations. The guidance involves three sections of the Clean Air Act (CAA) - Prevention of Significant Deterioration regulations, nonattainment New Source Review regulations and the Title V permitting program. Specifically, the technical guidance requires aggregation when three conditions are met: 1)the different sources must belong to the same industrial grouping; 2) the sources must be located on one or more contiguous or adjacent properties; and 3) must be under the control of the same person. The guidance centers on the plain meaning of the words; “contiguous or adjacent,” is interpreted as the distance or spatial relationship between locations. A similar approach has been affirmed in West Virginia. Other states, including Texas, Oklahoma and Louisiana, consider sources contiguous or adjacent if they are within a quarter-mile apart. Although public comments will be accepted until November 21, the guidance will be implemented, on an interim basis, immediately.
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Earlier this week, the New York Department of Environmental Conservation(NYDEC) released a revised draft of its Supplemental Generic Environmental Impact Statement(SGEIS). Coinciding with the release of the draft and perhaps more importantly, the state released results from a socioeconomic study that indicate that hydraulic fracturing could create as many as 25,000 full time jobs worth up to $1.7 billion in wages for New Yorkers. If the results of the study are accurate it would be hard for the state to turn its back on the potential job creation that hydraulic fracturing would bring.
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April 28, 2011 | Posted by | Topic(s): Land Use
Ed Casey and Shiraz Tangri have been named to the Los Angeles Daily Journal's 2011 list of the Top 25 land use attorneys in California. According to the Daily Journal, attorneys were chosen based on their work on projects, entitlement and litigation, as well as their overall body of land-use related work in 2010 and 2011.
Casey was lauded for two recent courtroom victories representing Playa Vista, the largest mixed-use development in West Los Angeles, which involved a complicated environmental impact report (EIR) process.
Tangri was cited for his work on several major energy and infrastructure projects in Los Angeles County, including successfully defending at trial the approval of a super-tanker terminal at the Port of Los Angeles set to be the only West Coast marine terminal capable of accommodating the largest petroleum ships.
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On March 1, 2011, California's Third Appellate District found the policy of the State Lands Commission to prohibit development between mean high tide line and the ocean to be an underground regulation. (Bollay v. California Office of Administrative Law (OAL) and State Lands Commission )
The State Lands Commission has traditionally chosen the most landward historical position of the mean high tide line as its boundary for prohibiting development. The State Lands Commission conceded that its policy was in fact a "regulation" but that it was exempt from the requirements of the Administrative Procedures Act (APA) because it was the "only legally tenable interpretation of a provision of law. (Gov Code sec. 11340.9(f)) The appellate court disagreed, and found that the mean high tide line could be calculated in numerous fashions, in some overextensive and others underextensive prohibitions on development.
The State Lands Commission will now have to promulgated a regulation under the procedures provided by the APA to determine how it will calculate and define the "mean high tide line" and thus the scope of the development prohibition on the coast.
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On December 21, 2010, the California Department of Toxic Substances Control (DTSC) issued a
“chemical information call-in” targeting manufacturers and importers of nanometals, nanometal oxides and
quantum dots. http://www.dtsc.ca.gov/TechnologyDevelopment/Nanotechnology/nanometalcallin.cfm.
This request dramatically expands on a January 2009 DTSC call-in aimed solely at carbon nanotubes,
and broadly includes
• nanosilver,
• nano zero-valent iron,
• nano-sized titanium dioxide,
• nano zinc oxide,
• nano cerium oxide, and
• quantum dots.
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