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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A superior court in Alameda County invalidated a streamlining provision of the California Environmental Quality Act (CEQA), holding the provision is unconstitutional for requiring that a petition for writ relief be filed in a court of appeal. The court held the provision impermissibly restricts the original jurisdiction of the superior courts and the Supreme Court. In 2011, Public Resources Code section 21185 was enacted to provide streamlined CEQA review for qualifying “environmental leadership” projects. These projects include clean renewable energy projects, clean energy manufacturing projects, and residential, retail, commercial, sports, cultural, entertainment, or recreational use projects located on infill sites that are certified as LEED silver or better. Two projects have already been approved under Section 21185 - an Apple campus in Cupertino and the McCoy Solar Energy Project in Riverside. Specifically, Judge Frank Roesch held that “[t]he California Constitution does not grant the legislature any authority over CEQA or environmental reviews that would support a departure from the general rule that the legislature cannot either limit or extend the constitutional jurisdiction of the courts.” The court further ordered that the State Controller be enjoined from spending funds to implement the jurisdictional restrictions. The court gave its ruling from the bench in Planning and Conservation League v. State of California on March 29, 2013, and issued its Statement of Decision on April 9, 2013.
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Senator Frank Lautenberg (D-NJ) announced last week that he
will be retiring at the end of his term next year. Sen. Lautenberg has been a
driving force in the recent years in pushing for TSCA reform legislation and
will continue the push this year. He plans to reintroduce his bill, the Safe
Chemicals Act, which was approved by committee last year in the near future.
Recent reports indicate that due to Sen. Vitter’s (R-LA) plan to introduce
competing TSCA reform legislation targeted towards industry, that Sen.
Lautenberg may be open to revising his bill before re-introducing it to answer
some of the concerns that industry previously had with his bill. If he does so,
while there are no guarantees, it could lead to some bi-partisan support for
the bill.
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The California EPA, along with the Office of Environmental Health Hazard Assessment (OEHHA) has released the second public review draft of the California Communities Environmental Health Screening Tool, otherwise known as CalEnviroScreen. The updated draft CalEnviroScreen focuses on “an updated screening methodology to identify California communities that are disproportionately burdened by multiple sources of pollution,” and presents statewide results and analysis according to the OEHHA website.
A summary of the major proposed revisions from the original version can be found here. As we have previously blogged here, the potential uses of this tool are unclear. Many are concerned that the tool could be used by NIMBYs to prevent development and projects throughout California.
Written by Maureen Gorsen, Partner, Alston & Bird LLP | Follow us on Twitter
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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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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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Today, the California Department of Toxic Substance Control (DTSC) released their proposed “Safer Consumer Product Regulations.” The proposed regulations have narrowed down the set of applicable chemicals to 1200, down from the recent 3000. Included in this draft, the DTSC announced that they will only select 5 products to go through this onerous regulatory process in the first work plan. How they will select the 5 products remains unclear, but they will be selected within 6 months of the effective date of the regulations.
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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 25, 2012, the Supreme Court issued its decision in American Coatings Association, Inc. v. South Coast Air Quality Management District, 2012 Cal. LEXIS 155822. The decision centered on 2002 amendments to the South Coast Air Quality Management District’s (SCAQMD’s) Rule 1113, which limited certain pollution-causing substances in paints and coatings. At the time the amendments were adopted, emissions from architectural coatings in the South Coast Air Basin were larger than those generated by the entire refinery community, the furniture manufacturing industry and the aerospace industry combined. As such, the amendments were intended to force innovative technology and assist the SCAQMD in meeting federal ozone standards, by substantially reducing the VOC emissions generated by architectural coatings in the District.
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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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Today, President Obama issued an executive order supporting safe and responsible development of unconventional natural gas resources, which includes hydraulic fracturing. The executive order focuses on developing policy through an interagency working group. The order reads, “To formalize and promote ongoing interagency coordination, this order establishes a high-level, interagency working group that will facilitate coordinated Administration policy efforts to support safe and responsible unconventional domestic natural gas development.” The group will be chaired by the Director of the Domestic Policy Council, and will include representatives from the Department of Defense(DOD), Department of Interior(DOI),Department of Energy(DOE), Health and Human Services(HHS), Department of Transportation(DOT), Department of Agriculture(USDA), Department of Commerce(DOC), Department of Homeland Security(DHS), Environmental Protection Agency(EPA), Office of Management and Budget(OMB), Council on Environmental Quality(CEQ), Office of Science and Technology Policy(OSTP), the National Economic Council(NEC) and other agencies that the Chair sees fit to participate. The working group will:
- Coordinate agency policy activities,
- Coordinate among agencies the sharing of scientific, environmental and related technical and economic information,
- Engage in long-term planning and ensure coordination among the appropriate Federal entities with respect to such issues as research, natural resource assessment and the development of infrastructure,
- Promote interagency communication with stakeholders, and
- Consult with other agencies and offices as appropriate.
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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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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.
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The California Supreme Court ruled yesterday in Save the Plastic Bag Coalition v. City of Manhattan Beach that cities have the right to ban plastic bags and that a full-scale environmental review process is not always required to prohibit stores from giving the bags to their customers. The ruling overturned two lower court decisions and upheld a 2008 ban by Manhattan Beach. Since Manhattan Beach’s ban, many other California cities have followed suit or are in conversations to do so.
The court’s decision stated that a full scale CEQA review in the case of Manhattan Beach is not necessary. In relation to how the Manhattan Beach ban relates to a larger ban across the state, the ruling says, “The city properly concluded that a ban on plastic bags in Manhattan Beach would have only a minuscule contributive effect on the broader environmental impacts detailed in the paper bag “life cycle” studies relied on by plaintiff.” While the court did rule in favor of Manhattan Beach, the language left open the possibility for CEQA reviews in bans by larger municipalities.
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In a unanimous per curiam decision issued on June 28, 2011, the U.S. Court of Appeals for the 11th Circuit reversed a controversial July 17, 2009 order by the multi-district litigation (MDL) court presiding over the tri-state water war between Alabama, Florida, and Georgia. That 2009 order imposed a July 2012 deadline for the states to arrive at a water-sharing agreement over the Appalachicola-Chattahoochee-Flint (ACF) River Basin or the Atlanta metropolitan area risked losing much of its primary water supply. The 11th Circuit’s opinion contains two key rulings:
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The Environmental Protection Agency(EPA) announced earlier this week that recent regulations for industrial boilers has been put on hold. The EPA issued stay, will postpone the effective date for the regulations on “major source boilers and commercial and industrial solid waste incinerators." The stay will allow the agency more time to seek public comment before an updated rule is proposed.
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California’s attempt to implement a cap-and-trade program as part of its comprehensive global warming legislation, AB 32 has hit yet another legal snag. We have previously blogged about the legal challenges facing cap-and-trade here. On Friday, Judge Ernest Goldsmith ruled that the California Air Resources Board had not looked hard enough at alternatives to a cap-and-trade program. Goldsmith in his ruling said that the state must first analyze other alternatives, such as a carbon tax, and explain why the state did not choose them before they can implement a cap-and-trade program. The ruling does not prohibit the state from continuing to develop the cap-and-trade program. It is expected that CARB will appeal the ruling.
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On January 21, 2011, a California state court issued a tentative ruling on the case, Association of Irritated Residents, et al. v. California Air Resources Board (CARB). The case was originally filed in the San Francisco County Superior Court in 2009 and accused CARB of illegally approving their regulatory “scoping plan.” Petitioners challenged two areas, accusing CARB of failing “to meet the mandatory statutory requirements of AB 32 and the California Environmental Quality Act(CEQA) by essentially treating the Scoping Plan as a post hoc rationalization for ARB’s already chosen policy approaches.” The court denied the petition for Writ of Mandate commanding ARB to revise the Scoping Plan.
The CEQA portion of the case involves a challenge to the Functional Equivalent Document(FED). Petitioners challenge that CARB violated CEQA’s regulatory program by preparing and certifying the FED. In reviewing the CEQA portion of the case, the court granted the Petition for Writ of Mandate regarding alternative analysis and timing of action. The court denied the Petition for Writ of Mandate pertaining to impact analysis cause of action. The ruling goes onto read, “therefore, let a peremptory writ of mandate issue commanding ARB to set aside its certification of the FED and enjoining any implementation of the Scoping Plan until after Respondent has come into complete compliance with its obligations under its certified regulatory program and CEQA.”
This tentative ruling leaves open a 15 day period for plaintiffs and defendants in the case to file “objections.” If any objections are filed they would then be considered by the court when making their final decision.
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On January 14, 2011, in conjunction with the 40th anniversary of the enactment of the National Environmental Policy Act (“NEPA”), the Council on Environmental Quality (“CEQ”) issued new guidance (“Guidance”) on the appropriate use of mitigation in NEPA documents -- most importantly, upholding mitigation to support the preparation of a Findings of No Significance Impacts (“FONSI”) and accordingly, avoid more strenuous NEPA review -- and the monitoring of such mitigation measures. In the Guidance, the CEQ recognizes that NEPA does not mandate federal agencies mitigate adverse environmental effects. Nonetheless, the CEQ states that the Guidance was needed, in part, to “enhance the integrity and credibility of the NEPA process and the information upon which it relies.” CEQ also recommends that each federal agency incorporate measures into their respective NEPA guidelines to implement the Guidance. Highlights of the Guidance include:
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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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