A California Court of Appeal held that the EIR for a public water authority’s river diversion and water storage project adequately described the unadjudicated waters to be diverted and adequately analyzed impacts to water rights and groundwater supply. Buena Vista Water Storage District v. Kern Water Bank Authority 76 Cal. App. 5th 576 (2022).
Until
A California Court of Appeal held that CEQA’s issue exhaustion requirement did not preclude a challenge to Inyo County’s exemption determinations for condemnation proceedings and expanded operation of unlined landfills because the County failed to provide adequate notice that CEQA exemptions would be considered at its public meeting. As a matter of law, the Court
A California Court of Appeal held that longstanding use of a landowner’s property for access and parking by residents of the adjacent lot had established a prescriptive easement. Husain v. California Pacific Bank, 61 Cal.App.5th 717 (2021).
For many years the landowner’s and neighbor’s properties had been held under common ownership and used for residences.
The Ninth Circuit vacated U.S. Department of the Interior approvals for a proposed offshore oil drilling and production facility in Alaska after finding its EIS improperly failed to consider impacts associated with foreign oil consumption and the U.S. Fish and Wildlife Service’s Biological Opinion relied on overly vague mitigation measures and improperly failed to quantify the project’s nonlethal take of polar bears. Center for Biological Diversity v. Bernhardt, 982 F.3d 723 (9th Cir. 2020).
Conservation groups challenged the Bureau of Ocean Energy Management’s (BOEM) approval of the “Liberty Project,” which proposes to produce crude oil from Foggy Island Bay off the northern coast of Alaska, for failure to comply with procedural requirements of NEPA, the ESA, and the Marine Mammal Protection Act (MMPA). Project proponents estimated that the Project would produce approximately 120 million barrels of crude oil over a period of fifteen to twenty years. To do so, the Project would require construction of various new facilities including an offshore gravel island, wells, a pipeline to transport the oil, a gravel mine, and additional ice roads and crossings. The Project site is characterized by its ecological diversity and for providing habitat and food sources for threatened and endangered marine mammals, including polar bears.
EIS That Failed to Address Greenhouse Gas Emissions Resulting from Foreign Oil Consumption Violated NEPA
The Ninth Circuit was persuaded by one of two arguments raised by the conservation groups concerning BOEM’s compliance with NEPA. The court held that BOEM had failed to analyze “indirect effects” of the Project as required by NEPA by arbitrarily failing to include emissions estimates resulting from foreign oil consumption in its analysis of the Project’s no-action alternative. Counterintuitively, the EIS had concluded that maintaining the status quo under the no-action alternative would result in greater air emissions of priority pollutants as compared with the Project because, BOEM said, the production gap would be filled with substitutes produced from countries with “comparatively weaker environmental protection standards.” However, the EIR did not quantify the purported change in foreign oil consumption. BOEM argued that it could not have summarized or estimated foreign emissions associated with changes in foreign consumption with accurate or credible scientific evidence.
The court rejected BOEM’s failure to either quantify downstream greenhouse gas emissions or to “thoroughly explain why such an estimate is impossible.” The court specifically faulted the EIR for failing to “summarize existing research addressing foreign oil emissions” and for ignoring “basic economics principles,” including changes to equilibrium price and demand effects of the Project. Moreover, the court declined to accord deference to BOEM’s economic analysis of greenhouse gas emissions, stating that “BOEM’s area of expertise is the management of ‘conventional (e.g. oil and gas) and renewable energy-related’ functions, including ‘activities involving resource evaluation, planning, and leasing.’” Based on these findings, the court found that the BOEM’s failure to address global emissions constituted an impermissible failure to evaluate reasonably foreseeable environmental impacts required to be analyzed under NEPA.
Continue Reading EIS and Biological Opinion Invalidated for Offshore Alaska Oil Project
A California Court of Appeal invalidated a wastewater discharge permit issued by the Central Valley Regional Water Quality Control Board that the court found impermissibly delegated to the Board’s executive officer the authority to modify effluent limits under the permit. Malaga County Water Dist. v. Central Valley Regional Water Quality Control Board, 58 Cal.App.5th 396 (2020).
The federal Clean Water Act and California Porter-Cologne Water Quality Control Act authorize the State Water Resources Control Board, acting through its Regional Boards, to issue permits for point source discharges of pollutants into waters of the state. Pursuant to that authority, the Central Valley Regional Water Quality Control Board originally issued a wastewater discharge permit to the Malaga County Water District authorizing it to discharge up to 0.85 million gallons per day (mgd) of undisinfected secondary treated wastewater from its wastewater treatment facility to onsite discharge ponds. When the discharge permit came up for renewal, Regional Board staff became concerned that Malaga’s discharge ponds lacked the capacity to store 0.85 mgd, and accordingly approved a modified permit subject to a new total effluent limitation of 0.49 mgd. Unusually, the revised permit further provided that the Regional Board’s Executive Officer could approve a “higher flow, up to 0.85 mgd,” if requested by the discharger and supported by its submission of “supporting calculations and documentation” demonstrating sufficient disposal capacity on an average monthly basis.
Malaga challenged the discharge permit as an unlawful delegation of the Regional Board’s permitting authority under the Water Code, which expressly prohibits a Regional Board from delegating to its Executive Officer any powers and duties relating to the “issuance, modification, or revocation” of a discharge permit. Despite finding the dispute to be moot (because the permit at issue had expired and a new permit had been issued), the Court of Appeal determined that the controversy implicated an issue of “great public concern capable of repetition yet evading review,” and thus adjudicated the legality of the effluent verification process described in Malaga’s discharge permit.
Continue Reading Regional Water Quality Control Board Unlawfully Delegated Authority to Modify Effluent Limits Under Discharge Permit
A California Court of Appeal upheld denial of a petition by vintners challenging the prohibition on new vineyards within the Santa Monica Mountains Coastal Zone in deference to the California Coastal Commission’s finding that viticulture adversely impacts sensitive habitats, water quality, water supply, and scenic resources. Mountainlands Conservancy, LLC v. California Coastal Commission, No.