Last week, the U.S. Supreme Court released its highly anticipated opinion in Sackett v Environmental Protection Agency, delineating the appropriate standard to determine waters of the United States (WOTUS) under the federal Clean Water Act (CWA). The Supreme Court significantly reduced the reach of WOTUS from its earlier jurisprudence by holding that under the
In an opinion filed on April 19, and certified for publication on May 4, 2021, the Third Appellate District in Alliance for Responsible Planning v. Taylor (County of El Dorado) held that a citizen-sponsored ballot measure requiring new development to fund all cumulative traffic mitigation prior to construction violated the Takings Clause of the Constitution
On his first day in office on January 20, 2021, President Biden signed an Executive Order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (the Order). The Order directed federal agencies to immediately begin a review of federal regulations and regulatory action over the last four years. The Order directed agency heads to consider revision, rescission, or suspension of regulations rather than directing any particular course of action. However, the Order illuminates the Biden Administration’s priorities with respect to the regulatory landscape for energy and the environment.
In an opinion published on August 17, 2020, the Third Appellate District in Martis Camp Community Association v. County of Placer ruled that Placer County had violated CEQA by adopting an addendum to support abandonment of a roadway. Despite the statutory presumption against subsequent review under CEQA, the Third District determined that the County had abused its discretion in relying on the wrong EIR as a basis for analysis.
On August 27, 2020, in Protecting Our Water and Environmental Resources v. County of Stanislaus, Case No. S251709 (“Protecting Our Water”), the California Supreme Court held that the County in that instance could not categorically classify its issuance of groundwater well construction permits as ministerial decisions exempt from environmental review under the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, §§ 21000 et seq.). While the Court’s Opinion does not state that all well permits must undergo CEQA review, it narrows the grounds on which the ministerial exemption may apply. And since county well ordinances across the State comprise similar provisions, this ruling upsets the common practice of treating such permits as ministerial, not subject to CEQA. More importantly, however, the Court’s ruling interrupts a growing trend in the cases to provide some relief from CEQA where agencies lack sufficient discretion, and creates uncertainty for lead agencies by holding that ministerial permitting decisions must be reviewed on a case-by-case basis.
On May 8, 2020, the Third Appellate District, certified for publication its earlier decision in Petrovich Development Co. LLC v. City of Sacramento (C087283), where the Court, in a rare decision, voided a city council’s denial of a conditional use permit (CUP) upon finding that one of the councilmembers was impermissibly biased against the project; thus, denying the project applicant a “fair hearing.” The city councilmembers, when acting in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body, are required as decision-makers to be “neutral and unbiased.” This implies that “the decisionmaker has no conflict of interest, has not prejudged the specific facts of the case, and is free of prejudice against or in favor of any party.” But here, one of the city councilmembers entered the deliberations on the issue with his mind already made up, and the court found that the councilmember’s actions prior to the hearing and the vote “crossed the line into advocacy against the project.” As such, the project applicant was not afforded a “fair hearing,” and the council’s denial of the CUP was invalidated.
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 21, 2020, The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”) was published in the Federal Register, and will become effective on June 22, 2020. Publication of the 2020 WOTUS Rule in the Federal Register is the final step in the Trump Administration’s repeal and replacement of the 2015 Waters of the United States Rule (“2015 WOTUS Rule”), issued under the Obama Administration. Due to litigation that ultimately resulted in a stay of the 2015 WOTUS Rule prior to the effective date, that rule never became effective nationwide.
California Courts of Appeal recently issued two cases addressing the strict statute of limitations applicable to agency action under CEQA.
Citizens for a Responsible Caltrans Decision v. Department of Transportation – (March 24, 2020, D074374) __ Cal.5th__
The Fourth District in Citizens for a Responsible Caltrans Decision v. Department of Transportation overturned a lower court’s dismissal of a citizen group’s challenge to an exemption issued by California Department of Transportation (“Caltrans”) for a highway interchange project in San Diego, finding that the Petitioner had pled facts sufficient to allow the lower court to find that the action was timely, and finding as a matter of first impression that the Project was not exempt from CEQA. This case is a good reminder that courts will strictly scrutinize agency action that appears designed to deceive the public, even if well-intended.
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