In a far-reaching decision with sweeping implications, a federal district judge in Montana eliminated the Army Corps’ nationwide permit for utility line crossings over waters of the United States. This permit – known as Nationwide Permit 12 – was used to streamline approvals across the country for electrical lines, pipelines, and other utility projects resulting in minor encroachments on wetlands and other waters. Because of this decision’s scope, thousands of projects across the country – including projects in California – may be stalled as they re-think their permitting approach or await further direction from the courts. Even more troubling is the fact that this decision calls into question the legality of over fifty other nationwide permits intended to streamline project approvals, including those issued for housing, industrial, and other development projects Continue reading →
Clark Morrison and Scott Birkey co-authored an article for Bloomberg Environment where they examine the effect of the Trump administration’s California Clean Water roll-back, as well as the state’s response. Continue reading →
A. National Environmental Policy Act (NEPA).
- Presidential Executive Order 13807 (Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects) (August 15, 2017):
Applies to any project that requires approval by multiple federal agencies, requires an EIS, and has a “reasonable availability” of funding. Requires NEPA reviews to be limited to 2 years, publication of all federal decisions in a single ROD (“One Federal Agency”) and federal authorizations to be issued within 90 days of ROD.
- Interior Secretary Order 3355 (Streamlining National Environmental Policy Act Reviews and Implementation of Executive Order 13807) (August 31, 2017).
Limits environmental impact statements to 150 – 300 pages (the latter for unusually complex projects), excluding appendices, for all EIS documents prepared by DOI. Final environmental impact statements required to be completed within one year from issuance of NOI unless Asst. Sect’y approves 3-month extension. Continue reading →
From timber country to the urban core, California is struggling to get its brownfield sites – land contaminated or believed to be contaminated by hazardous chemicals – back into productive use. The elimination of California redevelopment agencies in 2011-2012 set the process back dramatically, and the state’s best tool apart from redevelopment was set to expire at the end of 2016. Fortunately, a campaign spearheaded by the California Association for Local Economic Development (CALED) and Senator Bob Hertzberg secured passage of SB 820, saving California’s Land Reuse and Revitalization Act (CLRRA) from extinction.
CLRRA is Chapter 6.82 of the California Health and Safety Code. It was enacted in 2004 to help restore sites burdened by historically common, and unfortunately lax, chemical handling and disposal practices. All too often these sites sit unused, or badly underutilized, because the legal and regulatory challenges associated with them drive developers and local jurisdictions to focus on sites without such chemical problems – so-called greenfields.
The “greenfields before brownfields” cycle often reinforces downward socio-economic spiral in areas most needing economic renewal and investment, and it broadly undermines land use and environmental policies tied to reducing sprawl. Brownfield stagnation also frustrates the state’s efforts to build housing, both affordable and market-rate, in urban core areas. Many sites well suited to the production of urban housing were historically used for commercial and industrial activities that involved lax chemical handling.
CLRRA addresses these brownfield challenges by clarifying and simplifying the liability and regulatory framework applicable to brownfield sites. The fear of potentially joint and several liability for cleanup costs disproportionate to the anticipated redeveloped value of a site typically poses the first and biggest legal hurdle for brownfield redevelopers, whether private or public sector (or the public-private partnerships that have taken on the state’s most ambitious brownfield projects in places like Emeryville, downtown San Diego, and Carson and other formerly industrial areas in greater Los Angeles).
CLRRA addresses this challenge in multiple ways, most notably by conferring on “bona fide purchasers” a statutory immunity for cleanup work beyond the “response plan” needed to make the site suitable for a proposed redevelopment. As a practical matter, this enables brownfield redevelopers to understand ahead of time what their cleanup obligations will be. Clarity on this point allows a redeveloper to confirm that the cleanup obligations fit within a pro forma financial model that is viable to capital sources, both debt and equity. CLRRA also strengthens cost recovery leverage, another aspect of the liability framework that can be critical to the financial pro forma for complex brownfield sites.
Fear of a byzantine, even Kafka-esque, regulatory process that will swallow time, resources and sanity itself is the second legal hurdle that must be overcome at many brownfield sites. CLRRA addresses this challenge by laying out a procedural path that balances interests with inherent tensions – development efficiency, scientific certainty, and public input.
In general, the CLRRA process starts with a Phase I Environmental Site Assessment and an agreement to pay the oversight costs incurred by the Department of Toxic Substances Control or a Regional Water Quality Control Board. The statutory immunities trigger at this early juncture. Thereafter, the applicant works through four “streamlined” steps: site assessment, cleanup planning, public comment, and implementation/completion certification. The objective is to make the site safe for its intended use(s) as defined in local planning and zoning documents, not to evaluate and cure every conceivable issue associated with the historic chemical impacts.
Needless to say, the statute has technical intricacies. This brief survey should be taken as encouragement to work with experienced practitioners (both legal and technical) when pursuing a CLRRA site. It must also be noted that the legislative effort to enact the original CLRRA statute involved a good amount of awkward sausage making. Certain sites are ineligible for CLRRA treatment for reasons that defy logic and sound public policy. The statute clearly can be improved, hopefully in the upcoming legislative session now that SB 820 has resolved the looming sunset issue.
Nonetheless, CLRRA’s enactment and SB 820 represent huge steps forward for California’s ongoing efforts to revitalize urban areas, build affordable housing, and pursue smart growth management.
We previously shared with you the critical role that the late Justice Antonin Scalia played in landmark Supreme Court land use decisions. So now let’s look at how Judge Merrick Garland, President Obama’s current nominee for Justice Scalia’s seat, might shift the ideological leanings of the Court on environmental issues, if confirmed.
Although leading experts are still analyzing Garland’s past opinions to discern his potential influence on future Supreme Court environmental law decisions, there appears to be universal agreement that Garland’s addition would make the Court more likely to defer to agencies’ regulatory interpretations, rulemakings, and rule implementation. In particular, those legal analysts have found consistent deference to actions of the Environmental Protection Agency. As SCOTUSblog noted in 2010, “Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups.” Indeed, according to Bloomberg, one third of Garland’s dissents have been over challenges to agency decision-making. In all of those dissents, Garland sided with the agency.
UCLA Law Professor Ann Carlson analyzed three important Garland decisions, two majority opinions and one dissent. From these opinions, Professor Carlson deduced that Garland is likely to afford great respect to EPA’s judgment where that judgment is grounded in good science and the public interest. Carlson expects Garland to be likely to defer to the EPA or, where he rules against the EPA, to side with environmentalists on the grounds that the EPA has not gone far enough to enforce the law. Continue reading →
Are there circumstances where it would be possible to change, for example, the general plan land use designation of a 1,000 acre parcel from “open space” to “residential,” “mixed use,” and/or a hotel use without complying with the California Environmental Quality Act, even though potentially significant impacts could result from the change? In one of this year’s more important land use decisions, the California Supreme Court has answered that question with a clear and affirmative “Yes.”
The context of the Court’s decision is that of a “qualified” voter-sponsored ballot measure. For most local jurisdictions (i.e., a city or a county), a measure “qualifies” for the ballot when at least fifteen percent of the number of registered voters within the jurisdiction sign a petition to place the proposal on the ballot. Once sufficient signatures are confirmed, the legislative body of that jurisdiction (the City Council or the Board of Supervisors) has the choice of either placing the measure before the voters or approving the measure itself without change. Those are the only options. It has long been clear that if the measure is placed on the ballot and approved by voters, CEQA does not apply. However, the California Supreme Court has now determined that if the City Council or Board of Supervisors approves the measure itself rather than sending it to the voters, CEQA still does not apply. Continue reading →