Edgcomb Law Group

As many of California’s cities have adopted green building ordinances over the last several years, the state’s new Green Building Standards Code, to be added to the building standards code on January 1, 2011, is not likely to hinder development in these communities.  The Green Building Standards Code will be Part 11 of the California Building Standards Code in Title 24 of the California Code of Regulations.

The new Green Building Standards Code, known as CALGreen, is the first in the nation statewide mandatory green building code for newly constructed buildings.  Finalized earlier this year by the California Department of Housing and Community Development and the Building Standards Commission, CALGreen is a comprehensive code that will apply to newly constructed residential, commercial, school and hospital buildings.  Residential-type buildings, such as single family dwellings, and motels, hotels, and apartments of three stories or less, are subject to the CALGreen Code when constructed new, under a permit issued on or after January 1, 2011.  Newly-constructed nonresidential buildings subject to CALGreen include, among others, state-owned buildings, state universities, and privately-owned buildings used for retail, office and medical services.  While CALGreen applies to all newly constructed buildings unless otherwise exempted by law (i.e. federal buildings and buildings constructed on Indian land or reservations) it does not apply to remodels and additions.

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Responding to a Presidential directive to take coordinated steps to produce a new generation of clean vehicles, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Transportation (DOT) announced last week the first ever national standards to reduce greenhouse gas emissions and improve fuel efficiency of heavy-duty highway vehicles.  This broad sector of vehicles – ranging from large pickups to sleeper-cab tractors – represents the second largest contributor to oil consumption and greenhouse gas emissions, after light-duty passenger cars and trucks.  The program is projected to reduce greenhouse gas emissions by an estimated 250 million metric tons and save 500 million barrels of oil over the lives of the vehicles produced during the program’s first five years.

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Nanotechnology, the study of the controlling of matter on an atomic and molecular scale, promises a number of benefits to society.  If current trends in manufacturing are any indication, this emerging technology is here to stay.  The August 21, 2008 Project on Emerging Nanotechnologies estimated that over 800 manufacturer-identified nanotechnology products are publicly available, with 3 to 4 new products arriving in the market place per week.

Early research has established that while some types of nanomaterials are seemingly inert, others may be highly toxic.  Thus, the field of nanotechnology is ripe for regulatory intervention.  Policy makers in several jurisdictions are already establishing legal frameworks for the management of nanotechnology.  For example, the federal Toxic Substances Control Act (“TSCA”) already includes nanoscale materials within its definition of “chemical substances.”  And if recent legislative proposals to overhaul TSCA become law, the level of federal regulatory scrutiny of nanotechnology will expand, subjecting manufacturers and processors to additional notification, reporting and review procedures.

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On September 14, 2010, California’s Department of Toxic Substances Control (“DTSC”) released the Green Chemistry Proposed Regulation for Safer Consumer Products, also known at the “Green Chemistry” regulations.  DTSC’s adoption of the regulation, required by AB 1879 (Feuer, 2008), was signed into law by Governor Schwarzenegger and establishes a process for the identification and prioritization of chemicals of concern and the performance of alternatives assessments. 

According to Linda Adams, Secretary of the California Environmental Protection Agency, “[t]his regulation propels California to the forefront of the nation and the world with the most comprehensive Green Chemistry program and will lead to safer products for consumers.”

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Sierra Club v. Van Antwerp, No. 07-1756, 2010 U.S. Dist. LEXIS 64650 (D.D.C.  Jun. 30, 2010) involved a proposed multi-use development project near Tampa, Florida, known as the Cypress Creek Town Center.  The project site partially encompassed wetlands and thus required special fill permits under the Clean Water Act (“CWA”) prior to development.  After conducting an Environmental Assessment, the Army Corps of Engineers (“Corps”) issued a “Finding of No Significant Impact” under the National Environmental Policy Act (“NEPA”) and issued a fill permit in May 2007.  Project development began shortly thereafter.  Several months later, plaintiffs filed suit alleging violations under NEPA, the CWA, and the Endangered Species Act (“ESA”).  In the interim however, site construction resulted in the discharge of turbid, silt-laden water into Cypress Creek in violation of the Corps-issued permit.  After an initial suspension of the permit by the Corps and an investigation into the discharges, a slightly modified permit was re-issued after the Corps found that the discharges were the result of human error rather than a flaw with the permit itself.  Plaintiffs continued with their legal claims asserting that the Corps: (1) violated NEPA by failing to prepare an Environmental Impact Statement (“EIS”) and failing to take a “hard look” at adverse impacts and potential alternatives;  (2) violated the CWA by failing to require practicable alternatives and “arbitrarily and capriciously” deciding there would be no degradation to a nearby creek and its wetlands and no violation of state water quality standards; and (3) violated the ESA by failing to obtain formal consultation on the development’s impact on protected species.

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The U.S. Environmental Protection Agency (“EPA”) announced today that it has sent a letter to Congress in support of reinstating the lapsed Superfund chemical feedstock  taxes.  Passed in 1980, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) established a fund to be used to finance governmental response activities, pay certain claims arising from the response activities of private parties, and to compensate governmental entities for damages caused to natural resources.  The money for the Superfund was generated by special taxes on crude oil, imported petroleum products, hazardous chemicals, and imported substances that use hazardous chemicals as a feedstock, and on corporate modified alternative minimum taxable income.  The taxes expired in 1995 and, despite several bills introduced to reinstate them, the taxes have never been reauthorized.  (more…)

The U.S. Environmental Protection Agency (EPA) last week announced a final rule to address greenhouse gas (GHG) emissions from large stationary sources such as power plants and oil refineries.  EPA’s phased-in approach will shield relatively smaller sources of GHGs from Clean Air Act (CAA) permitting requirements.

“After extensive study, debate and hundreds of thousands of public comments, EPA has set common-sense thresholds for greenhouse gases that will spark clean technology innovation and protect small businesses and farms,” EPA Administrator Lisa Jackson said.

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New federal legislation aimed at protecting the country’s wildlife corridors was introduced last week by U.S. Representatives Rush Hold (NJ-12) and Jared Polis (CO-2).  Wildlife corridors, expanses of land in which animals can freely move about and propagate, are under constant threat from urban sprawl and climate change.

The Wildlife Corridors Conservation Act would create a fund for the management and protection of essential wildlife corridors.  It would also create an information program within the Fish and Wildlife Service to collect information about wildlife movement paths to disseminate to state and federal agencies.  The bill would also require the Department of Agriculture, Department of the Interior and the Department of Transportation to consider the preservation of migration paths in their management plans.

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The U.S. Environmental Protection Agency (EPA) announced on Monday that it has awarded nearly $80 million in grant funding to assess, cleanup and redevelop brownfield properties in 40 states, four tribal lands and one U.S. Territory.   The funding will be used to clean up abandoned gas stations, old textile mills and smelters, and other abandoned commercial and industrial properties.

Since 1995, EPA’s brownfields program has provided direct funding to support communities to prevent, assess, clean up and sustainably reuse the estimated 450,000 brownfields in the U.S.  As of March 2010, EPA’s program has leveraged more than $14 billion in cleanup and redevelopment funding, and 61,277 jobs in cleanup, construction, and redevelopment.

Brownfield cleanup has become one of the agency’s top priorities.  EPA Administrator Lisa P. Jackson stated: “To strengthen our economy, we must first strengthen our communities.” “Cleaning up and revitalizing these contaminated sites opens doors to new businesses, new homes and new jobs for American workers while making our environment cleaner and the community healthier. This shows that what is right for the environment is right for the economy,” Jackson said.

In determining whether a project required preparation of an Environmental Impact Report (“EIR”) under the California Environmental Quality Act (“CEQA”), the California Supreme Court recently held that the South Coast Air Quality Management District (“SCAQMD”) improperly used the permitted levels of emissions for an oil refinery’s baseline in calculating emission increases that would result from the refinery’s expansion.  The court held that the SCAQMD should have instead used existing emission levels to determine the baseline.

The lawsuit involved a project proposed by ConocoPhillips to produce ultralow sulfur diesel fuel at a refinery in Wilmington, California.  The SCAQMD, the agency responsible for regulating non-vehicular air pollution in the area, failed to prepare an EIR before approving a permit for the refinery project. The SCAQMD reasoned that ConocoPhillips already had permits to operate the equipment, the refinery was an established use with operations fluctuating over time, and the proposed project did not call for any equipment to exceed this permitted capacity.   Thus, the SCAQMD argued that the baseline for the project should be the maximum permitted operating capacity of the equipment.  When this baseline was applied, no significant emissions increase would result to trigger environmental review. Further, the SCAQMD maintained, failure to use the maximum permitted operating capacity as the baseline would contravene CEQA’s statute of limitations and deprive the permittee of its vested rights.

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