Climate Change

New Endangered Species Act Regulations on the Horizon

Published on: August 16, 2019 | By Scott Birkey and R. Clark Morrison

California Gnatcatcher

Since President Trump took office in 2016, change is the new norm when it comes to environmental law. Within a month of taking office, the President proposed a dramatic narrowing of federal wetland protections under the Clean Water Act, resulting in a regulation that is now being finalized. The Trump Administration also issued an opinion limiting the scope of the Migratory Bird Treaty Act, narrowed the requirements for environmental impact statements under the National Environmental Policy Act, and rejected principle elements of the Obama Administration’s climate plan as well as the Paris Climate Accord. Now, the Trump Administration has issued numerous revisions to the regulations used by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to implement the Endangered Species Act.

On August 12, 2019, the Administration issued final rules for three separate rulemaking efforts to change certain key elements of the regulations used to implement the ESA. In our view, and contrary to the media firestorm surrounding the new regulations, these changes don’t amount to a “gutting” of the ESA. In fact, these rules don’t change the Endangered Species Act at all. Rather, they modify regulations which implement the ESA and which were adopted under previous administrations. Regulations are subject to change from time to time and, quite often, change with the political winds. Inevitably, what for some will be seen as harsh changes, others will perceive as needed reform. From our perspective as practitioners, the new regulations clarify a few procedural ambiguities and streamline some clunky aspects of the ESA’s regulations that we have been dealing with for years.

The new regulations are quite detailed. But in summary, below are some of the highlights: Continue reading

Is the Second Time the Charm? It’s Time to Comment on CEQA’s Proposed New Transportation Guidelines

Published on: February 22, 2016 | By Linda Klein

Less than one week remains to comment on important proposed changes to the CEQA Guidelines that flow from the 2013 adoption of “SB 743.” Once phased in, these Guidelines will change the evaluation of a project’s potential transportation impacts and, if the Guidelines function as the Governor’s Office of Planning and Research (OPR) desires, alter the pattern of California land development. Under the Guidelines, vehicle miles traveled (VMT) will replace level of service (LOS) as the standard a lead agency must measure a project’s traffic impacts. Under the new metric, what was mitigation for traffic impacts, such as the widening of roads, will soon be considered a significant impact. Accordingly, the implications of these Guidelines go beyond the need for traffic engineers to retool their traffic models (itself a complex task).

Of course changing CEQA is bound to be controversial. OPR’s first Guideline proposal generated numerous and diverse comments, reflecting differences among California’s lead agencies’ size and access to transit, and stakeholders’ individual (often ideological) views on transportation. As a result, OPR issued a second set of proposed Guidelines on January 20, 2016, which can be viewed on OPR’s website. Comments on this latest draft must be submitted to CEQA.Guidelines@resources.ca.gov by 5:00pm on February 29, 2016.

Practical Implications of the New Guidelines

OPR proposes to revise Appendix G, which is the heart of the proposed Guidelines. Although Appendix G is provided for guidance only, agencies typically follow it almost to the letter. As proposed, the transportation significance thresholds in Appendix G would eliminate questions related to LOS and instead focus on VMTs, including whether a project would induce additional automobile travel by increasing physical roadway capacity. In addition, OPR proposes technical guidance, to be published as a separate document, to help lead agencies implement the new Guidelines. This technical guidance includes recommended quantitative thresholds and analysis methods for determining the transportation impacts from various types of projects, including residential, retail, office, and roadway development. Following are some of the practical consequences that we foresee resulting from the proposed changes: Continue reading

SB 350 Marks California’s Next Step in Combating Climate Change

Published on: December 9, 2015 | By Daniel Kolta

As we start to look back on significant new laws approved by California’s Legislature in 2015, climate change once again took a prominent role. In particular, SB 350 ups the State’s targets for the amount of electricity to be generated in future years from eligible renewable energy resources and sold to retail customers, setting the goal of 50% by 2030. The law also requires the California Energy Commission to set annual targets to double energy efficiency in buildings by 2030. With SB 350, California has strongly reaffirmed its role as a leader in the effort to confront global climate change, while also providing a clear signal to renewable energy developers that solar and wind will continue to play a growing role in the state’s energy future.

SB 350 also emphasizes the important role of electric vehicles in California’s overall scheme to combat climate change, declaring that “[d]eploying electric vehicles should assist in grid management, integrating generation from eligible renewable energy resources, and reducing fuel costs for vehicle drivers . . . .” The bill promotes the development of additional electric vehicle charging infrastructure to encourage greater use of electric cars.

SB 350 follows the renewable energy equation inherent in previous California climate change legislation by relying not only on increasing the sources of renewable energy generation, but also on the reduction of statewide electricity and natural gas demand. As consumers see not only the environmental benefits of energy efficiency, but also the personal economic savings, many renewable energy policies have come to be seen as “win-win.” As a result, Continue reading

The California Supreme Court Issues Important New Rulings on Analysis of Greenhouse Gas Emissions, Fully Protected Species, and Requirements for California Environmental Quality Act Litigation

Published on: November 30, 2015 | By Michael Zischke, Andrew Sabey and Linda Klein

The California Supreme Court’s latest California Environmental Quality Act (CEQA) decision contains important rulings affecting three areas of land use and environmental law practice. The decision, Center for Biological Diversity v. California Department of Fish and Wildlife (November 30, 2015, Case No. 217763), was a 5-1-1 decision, and it arose out of one of many environmental impact reports (EIRs) that have been prepared for the large Newhall Ranch development that is proposed in northern Los Angeles County. This particular EIR followed earlier EIRs certified by Los Angeles County in 1999 and 2003 in connection with the County’s primary project approvals. The new EIR was a joint EIR/EIS prepared by the California Department of Fish and Wildlife and the U.S. Army Corps of Engineers to evaluate the impacts of several additional project approvals, including a resource management plan, a conservation plan for the endangered spineflower plant, a streambed alteration agreement, and two permits for the incidental take of protected species.

Several of the rulings in the case are likely to make the CEQA process, and the analysis of greenhouse gas emissions in CEQA documents, more complicated. The primary rulings in the case are discussed below.

EIR Analysis of greenhouse gas emissions upheld in part, rejected in part. The Court upheld some aspects of the EIR’s lengthy analysis of greenhouse gas emissions, but found that the analysis was not thorough enough. There are three components to this ruling. Continue reading

OPR Releases Preliminary Discussion Draft of Proposed Changes to CEQA Guidelines; CEQA Stakeholders are Invited to Submit Comments

Published on: August 31, 2015 | By Michael Zischke, James Purvis and Christian H. Cebrian

As California developers and public agencies well know, the entitlement process in our state is driven by CEQA, the California Environmental Quality Act. CEQA, in turn, functions pursuant to the CEQA statute and the “CEQA Guidelines.” If you’ve ever wondered who writes those CEQA Guidelines, the answer is “the Governor’s Office of Planning and Research,” or “OPR.” The CEQA Guidelines reflect OPR’s interpretation of CEQA’s statutory requirements, its reading of case law construing CEQA, and its take on “practical planning considerations.” As a result, this little known operation in the Governor’s office plays a pivotal role in California’s entitlement process. CEQA Guidelines are formally adopted by the Natural Resources Agency following review by the Office of Administrative Law, but OPR basically writes the Guidelines.

This year, OPR is engaged in two separate endeavors to amend the CEQA Guidelines. One ongoing effort is the product of SB 743, legislation adopted in 2013 which likely will revolutionize the way traffic impacts in California are evaluated and mitigated by focusing on vehicles miles travelled (VMT) rather than level of service (LOS). We have discussed with you in prior “Lay of the Land” posts the potential implications of the new SB 743 Guidelines being prepared by OPR.

The other effort began two years ago, when OPR announced its intent to consider a broad range of revisions to the CEQA Guidelines. OPR solicited public comments and received a very large number of comments making a wide variety of suggestions. Since then, OPR has been considering the many comments and suggestions received, and OPR has now, on August 13, released a preliminary draft of proposed Guidelines amendments based on the public suggestions and OPR’s own ideas. The public is invited to comment, through October 12, and this is an important opportunity for stakeholders in the CEQA process to evaluate the proposals and weigh in with comments. In contrast to recent Guideline amendments on particular topics such as greenhouse gas emissions, this is the first overall update of the Guidelines in many years. Continue reading

KEEP AN EYE ON . . .

Published on: April 14, 2015 | By Tim Paone and Our Land Use & Natural Resources Team

2015 is shaping up as a year of significant developments in land use law thanks to the Governor, the Legislature, and the courts. Here’s an update on anticipated developments related to Sea Level Rise, Affordable Housing, Traffic Impact Analysis and the Drought, any or all of which could constrain land development:

. . . SEA LEVEL RISE AND THE COASTAL COMMISSION: Prospective purchasers, developers, and owners of coastal land should pay close attention to the Coastal Commission’s development of policies to address rising sea level and its implication not just for coastal resources, but also for existing and proposed development. Although final guidance has not yet been issued, the Commission’s Draft Sea-Level Rise Policy Guidance concludes that sea level rise threatens “seven wastewater treatment plants, commercial fishery facilities, marine terminals, Coastal Highway One, fourteen power plants, residential homes, and other important development and infrastructure.” Add in impacts to tourism, commercial fisheries, coastal agriculture, the ports, and sensitive coastal resources and it is easy to anticipate that the projected risks from sea level rise will create tough decisions for the Commission as it acts on Local Coastal Programs, LCP amendments, and Coastal Development Permits. Hazard avoidance and mitigation are likely to result in proposals for significant constraints on development. Every site and project will be different, but it will be important to evaluate the potential significance of sea level rise over the life of the project in the context of any investment or development within the Coastal Zone. The picture above is from a presentation by Charles Lester, Executive Director of the Coastal Commission, to the Senate Budget Subcommittee 2 on March 20, 2014. It shows a pre-Coastal Act home and more current setback requirements along a blufftop in Pismo Beach which has been impacted by bluff erosion.

. . . AFFORDABLE HOUSING FEES: We told you earlier this year that the California Supreme Court will be weighing in on the validity of an in lieu affordable housing fee in San Jose. Oral arguments in California Building Industry Association v. City of San Jose (click here to read the appellate court decision which is under review) were heard on April 8. CCN’s Mike Zischke was in attendance and observed an engaged and inquisitive Court. When this decision comes down, its significance likely will go beyond the affordable housing issue. With two new Justices sworn in at the beginning of this year, this decision could foretell where the Court will lean on land use issues, particularly those involving exactions and impact fees.

. . . THE DROUGHT: Governor Brown’s Executive Order calling for a 25% reduction in the State’s water usage will impact not only daily life for Californians (there goes that ten-minute shower), but potentially development proposals. At a time when some areas in the state are experiencing housing shortages, there undoubtedly will be pressure from some interest groups to cut back on the development of new housing. It’s too early yet to understand what the full effect of Executive Order B-29-15 will be, as local water agencies and local governments will be developing their own policies to comply with the Governor’s directive.

What Do Lady Gaga, Conan O’Brien, and the California Legislature Have in Common?

Published on: December 8, 2014 | By Scott Birkey

California’s severe drought has set off alarms from the Capitol to the sound stages of Hollywood. The Governor has declared a State of Emergency and both Lady Gaga and Conan O’Brien have starred in “Save Our Water” public service announcements to promote water conservation measures. On the more impactful legislative front, the California Legislature has passed three pieces of legislation that together make up the “Sustainable Groundwater Management Act.” This new regulatory program may have significant land use implications, particularly in the case of general plan amendments, as it potentially adds a new layer of review to the entitlement process.

Before this Act, regulation of groundwater pumping in California was virtually non-existent, with no meaningful statewide standards for groundwater management. This Act creates new standards and, in the process, merges groundwater management and local planning. Before a city or county can adopt any substantial amendment of its general plan, it will be required to review and consider applicable Groundwater Sustainability Plans. These Groundwater Sustainability Plans will be prepared by newly-established local “Groundwater Sustainability Agencies,” comprised of one or more local agencies. Not only must the city or county consider the applicable Plan, it also must refer the proposed general plan amendment for review and comment to the Groundwater Sustainability Agency. Continue reading

The Potential Impacts of SB 743: Did the Legislature Double Dribble?

Published on: December 7, 2014 | By JoAnn Hadfield, Tim Paone, and Tony Petros

Co-contributors: PlaceWorks, Tim Paone of Cox Castle & Nicholson, and Tony Petros of LSA Associates and a member of the Newport Beach City Council.

It went in as a bill to streamline approval of a basketball arena. It came out, in addition, as legislation that revolutionizes the way traffic impacts are evaluated under CEQA. SB 743 will change the focus of CEQA traffic impact analysis from avoiding or mitigating congestion to reducing greenhouse gas emissions and promoting multimodal transportation and infill development. It eliminates traditional “level of service” (LOS) analysis as the measure of traffic impacts and replaces it with “vehicle miles traveled” (VMT). The Governor’s Office of Planning and Research (OPR) was directed to prepare CEQA guidelines to implement this change. A “discussion draft” of proposed Guidelines was released in August. When and if approved, the Guidelines will take effect in “transit priority areas” immediately and then statewide in 2016.

Under the Guidelines, VMT measures “the amount and distance that a project might cause people to drive,” rather than congestion and delay. Changing the traffic methodology is intended to result in more sustainable communities. But will the Legislature’s direction be circumvented by local agencies whose residents (and voters) care more about how long it takes to get to work, school, and the grocery store than they do about global warming, sustainable living, and terms such as “multi-modal”? And what does SB 743 portend for California’s roadway infrastructure? Consider these facts: Continue reading