Last month, the Second Appellate District upheld the South Coast Air Quality Management District’s (“Air District”) Environmental Impact Report (“EIR”), which the Air District prepared to analyze the environmental impacts of a refinery project that was intended to increase compliance and help reduce air pollution. Communities for a Better Environment v. So. Coast Air Quality Mgmt. Dist., Case No. B294732 (Apr. 7, 2020). The project applicant owns and operates two adjacent oil refining facilities in Southern California, and sought to improve the integration of both facilities to allow flexibility in product outputs, which also increased the refinery’s compliance with air regulations, and thus helped reduce air pollutants. As explained in greater detail below, the decision is particularly noteworthy because the court appears to have expanded the “baseline” analysis tied to air emissions, which is used to measure pre-project vs. post-project impacts to the existing environment.
The Air District’s review of the underlying project took three years and the Air District’s Draft EIR was the subject of over 2,000 public comments, which included comments totaling 1,112 pages from the plaintiff that later challenged the project. Significantly, 1,798 comments or 85% supported the project—likely because the EIR found that the main environmental impact of the project would be to reduce air pollution; and the Air District’s Final EIR was lengthy and robust, containing 6,075 pages of public comments alone.
In 2017, the plaintiff challenged the Air District’s EIR as inadequate under the California Environmental Quality Act (“CEQA”). After the trial court held that the Air District’s EIR complied with CEQA, the plaintiff appealed. Continue Reading
Last week, environmental groups, states, and cities filed three complaints in differing federal district court challenging The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”), which was published in the Federal Register on April 21, 2020, and is currently scheduled to become effective on June 22, 2020. Pursuant to the Supreme Court’s ruling in National Association of Manufacturers v. U.S. Dep’t of Defense, 138 S.Ct. 617, challenges to the 2020 WOTUS Rule must be brought in the federal district courts. The challenges, therefore, can and likely will simultaneously make their way through various circuits, perhaps with different results, dashing hopes that the 2020 WOTUS Rule would finally provide the regulated community with clarity and consistency regarding the scope of waters regulated under the Clean Water Act (“CWA”). 
On April 23, 2020, Governor Newsom signed 
The Third District Court of Appeals recently weighed in on the interpretation of Public Resources Code section 21099(b)(2) (“Section 21099(b)(2)”) and newly enacted CEQA Guidelines section 15064.3, which govern the consideration of traffic impacts under CEQA. In 
In response to the COVID-19 pandemic, the state and several local jurisdictions have issued orders/rules in the last few weeks that affect not only the timing of processing land use and planning entitlements, but also the filing of California Environmental Quality Act (CEQA) and other claims challenging land use projects and approvals in California courts. The situation is fluid, but this entry summarizes some of the major orders affecting planning and CEQA deadlines.
On Tuesday, February 25, 2020, the Fifth Appellate District invalidated Kern County’s 2015 Oil and Gas Ordinance (the “Ordinance”), which was intended to streamline the permitting process for a variety of oil and gas activities within unincorporated portions of the County, including for oil and gas production wells and related infrastructure such as well pads and pipelines. Although the Court’s decision does not impact permits that were already issued under the Ordinance, the Court’s decision requires the trial court to issue a writ of mandate vacating and setting aside the Ordinance. Accordingly, and at least for now, future project applicants will not be able to obtain streamlined review under the County’s Ordnance. 
On August 28, 2019, the California Office of Administrative Law (“OAL”) approved the State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State (“Procedures”). Consequently, the Procedures will become effective on May 28, 2020 — nine (9) months after OAL approval, based on the implementation date set forth in the Procedures.