Administration Continues its Roll on Regulatory Changes, Proposing Numerous Changes in Rules Governing Federal Endangered Species Act

On the heels of its notice of federal rulemaking under the National Environmental Policy Act (see our July 2 blog post) and other more modest efforts at reform on the administrative level, the Administration on July 19 announced a series of proposed changes to the regulations governing administration of the federal Endangered Species Act (ESA). Among the changes, the proposed rules would revise provisions governing:

  • Listing of species and designation of critical habitat (Section 4); and
  • Interagency consultations on critical habitat and related mitigation (Section 7).

Probably the most dramatic element is the proposed rescission of the U.S. Fish & Wildlife Service’s long-standing 4(d) rule, which years ago extended protections of endangered species to those species designated only as “threatened.” The Administration emphasizes that its regulatory efforts are needed to “improve” and “clarify” administration of the ESA. Three proposed rules are expected to be published in the Federal Register in the next several days:

Any Comments will be due in sixty (60) days (late September 2018).

For the First Time in Forty Years, White House Council on Environmental Quality Poised to Propose Major Overhaul of its Implementing Regulations Under NEPA

On June 20, 2018, the White House Council on Environmental Quality (CEQ) issued an advanced notice of proposed federal rulemaking, soliciting public comments on whether and how CEQ should update its National Environmental Policy Act (NEPA) implementing regulations. Comments on the proposed rulemaking are due July 20, 2018. Continue Reading

OPR Issues Helpful Technical Advisory Listing CEQA Exemptions Outside CEQA Statute

The CEQA Statute and Guidelines both contain provisions outlining what types of projects are exempt from environmental review. There are dozens of exemptions, however, that are listed in other provisions of the California codes that can be difficult to find. On June 6, 2018, the Governor’s Office of Planning and Research (OPR) released a helpful technical advisory listing over 50 CEQA exemptions that are not codified within CEQA itself. The advisory does caution that the list is not exhaustive. Below is a link to access the technical advisory.

http://www.opr.ca.gov/docs/20180606-Tech_Advisory_CEQA_Exemptions.pdf

First Appellate District Upholds Several Aspects of the EIR Prepared for Phillips 66 Efforts to Enhance Recovery of Petroleum Refinery Products

In a March 2018 decision, the First Appellate District examined several CEQA issues pertinent to petroleum refining and hazardous materials transport.  In Rodeo Citizens Association v. County of Contra Costa, the appeals court affirmed several findings of the lower court, dismissing challenges to the environmental impact report (“EIR”) prepared for a propane and butane recovery project at the Phillips 66 refinery in Rodeo.  (The appeals court did not review the trial court’s order to the county to set aside the certification of the EIR and correct several other air quality related issues.)  The appeals court found the risk of rail transportation of propane and butane was appropriately measured against the baseline of existing risks; the project description did not mask plans for the refinery to alter its crude oil feedstock; and that greenhouse gas impacts from downstream uses of petroleum products need not be evaluated. Continue Reading

Update: SCOTUS Declines Review of Friends of the Eel River CEQA Preemption Decision

The United States Supreme Court will not be taking up the California Supreme Court’s July 2017 decision in the Friends of the Eel River case.  In that decision, authored by Chief Justice Cantil-Sakauye, the California Supreme Court held that the federal Interstate Commerce Commission Termination Act (ICCTA) did not preempt application of CEQA to the reopening of state-owned rail service on a rail line between Napa County and Humboldt County. The United States Supreme Court denied the rail operator’s petition for writ of certiorari on April 30, which leaves the California court’s decision as the final word (for now).

You can view our summary and analysis of the Friends of the Eel River decision in our August 1, 2017 blog post.

Appeals Court Finds that EIR for Planned Los Angeles Railyard for Storage and Transfer of Goods Failed to Sufficiently Consider Air Quality Impacts

On January 12, 2018, the First Appellate District held that the California Attorney General need not exhaust administrative remedies in order to contest the adequacy of Environmental Impact Reports (EIRs) under the California Environmental Quality Act (CEQA), as is normally required of third-party challengers under Section 21177.  City of Long Beach v. City of Los Angeles, Case No. A148993 (2018).  The Appeals Court also held that BNSF Railway Company’s (BNSF) proposed construction of a new railyard in Southern California failed to adequately consider air quality impacts from the project.  The case emphasizes the need for EIRs to consider impacts to ambient air pollutant concentrations and the cumulative impacts of such pollutants under CEQA, even if the underlying analysis may be time consuming and difficult to generate. Continue Reading

West Covina Mitigated Negative Declaration Upheld, and Parking Impacts For Infill Projects Deemed Exempt by the Second Appellate District

On March 22, 2018, the Second Appellate District certified for publication its opinion in Covina Residents for Responsible Development v. City of Covina, et al. (2018) 230 Cal.Rptr.3d 550, concerning a Mitigated Negative Declaration (MND) for a proposed 68-unit, mixed-use, infill project located one quarter mile from the Covina Metrolink commuter rail station in the City of Covina. The case is notable as the first published decision addressing the application of CEQA’s exemption for parking impacts under Public Resources Code (PRC) Section 21099, subdivision (d)(1), which was enacted as part of SB 743 “to further the Legislature’s strategy of encouraging transit-oriented, infill development consistent with the goal of reducing greenhouse gases announced in [SB 375].” Continue Reading

Fifth Appellate District Upholds City of Visalia’s General Plan Update Against Challenge to Square Footage Restrictions in Neighborhood Commercial Zones

On January 30, 2018, the Fifth Appellate District certified for publication its earlier opinion in Visalia Retail, LP v. City of Visalia, upholding the City of Visalia’s (“City”) 2014 General Plan Update.  Plaintiff and Appellant, Visalia Retail, LP (“Plaintiff”), challenged the City’s General Plan land use policy LU-P-67, which set a 40,000-square-foot size limitation in the Neighborhood Commercial zones for grocery stores and similar businesses acting as the “anchor tenant” within a shopping center.  Plaintiff challenged LU-P-67 on two grounds, one under CEQA and one under California Planning and Zoning Law.  The Court of Appeal rejected both arguments. Continue Reading

Clean Sweep for City of San Diego in Challenge to Approval of Private School

On December 20, 2017, the Fourth District Court of Appeal delivered a solid win for the City of San Diego in a multi-faceted challenge to its approval of a private school pursuant to a Mitigated Negative Declaration (“MND”).  In Clews Land and Livestock LLC et al. v. City of San Diego, Petitioners Clews Land and Livestock, et al. (“CLL”) argued  that an Environmental Impact Report (EIR) was required because of significant impacts in the areas of fire hazards, traffic, noise, recreation, and historic resources, and because the final MND included impacts not disclosed in the draft.  CLL further argued that the City’s approval violated the applicable community land use plan and historic resources provisions of the San Diego Municipal Code (SDMC.). Continue Reading

Second Appellate District Rejects Challenge to EIR Alternatives Analysis for West Hollywood Redevelopment Project

On December 22, the Second Appellate District certified for publication its November 30 opinion in Los Angeles Conservancy v. City of West Hollywood, concerning a proposed mixed-use redevelopment of the “Melrose Triangle” site that would result in demolition of the existing buildings.  In this decision, the Court rejected the Conservancy’s claim that the City gave short-shrift to an alternative that would have preserved one of the buildings, which is located at 9080 Santa Monica Boulevard and may be eligible for listing on the California Register of Historical Resources as an exemplar of “Streamline Moderne Style” (the “9080 Building”).  Notably, the Court’s ruling reaffirmed prior case law holding that a lead agency may find an alternative to be infeasible where it is impractical or undesirable for reasons of public policy. Continue Reading

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