Edgcomb Law Group

The California Fourth District Court of Appeal, in Citizens for a Responsible Equitable Environmental Development v. City of Chula Vista (June 10, 2011), remanded a lawsuit challenging the City of Chula Vista’s (“City”) decision to approve the construction of a Target store based on a mitigated negative declaration because the lead agency failed to attach the Corrective Action Plan (“CAP”) for the site to the negative declaration.  The Appellate Court held that the failure to attach the CAP makes it uncertain whether the construction of the store would cause further migration of the hazardous materials addressed by the CAP into groundwater.

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The California Court of Appeal, in Latinos Unidos De Napa v. City of Napa, 196 Cal. App. 4th 1154 (June 27, 2011), held that the City of Napa (“City”), which filed a CEQA Notice of Determination (“NOD”) with the County Clerk’s office, did not satisfy the 30-day posting and filing requirement when the notice was removed from the County Clerk’s office mid-day on the 30th day.  As a consequence, the plaintiff, an affordable housing advocate group, was allowed 180 days from the City’s approval of the project to challenge the CEQA NOD under Public Resources Code section 21167(a).

Public Resources Code section 21152(c) requires a County clerk to post the NOD “for a period of 30 days.”  The Court looked to Code of Civil Procedure section 12 for clarification on the timing requirement and determined that the “30-day” period excludes the first day of posting and includes the last day.  The Court clarified that “the NOD must be posted for the entire last (30th) day to satisfy the 30-day posting requirement.”  196 Cal. App. 4^th at 1157-1158.  Since the City only posted the NOD for part of the 30^th day, and not until the County Clerk’s office closed, the 30-day notice requirement was not met.  The City argued that because it filed the NOD with the County Clerk that action alone satisfied the 30-day posting and filing requirement of Public Resources Code section 21152, relying on CEQA Guidelines section 15094(g).  However, the Court of Appeals determined that CEQA Guidelines section 15094(g), like Public Resources Code section 21152, provides that a NOD must be both filed and posted, and thus rejected the City’s argument.

Implementation of California’s Green Chemistry Initiative titled “Safer Consumer Product Alternatives” has been delayed indefinitely beyond the January 1, 2011 statutory adoption deadline.  The deadline was established by California Assembly Bill 1879 (Chapter 559, Statutes of 2008).  According to Linda S. Adams, the Secretary of California’s Environmental Protection Agency, the delay is needed “to further vet the programmatic issues that have been brought to our attention via the public comment process.”  The Department of Toxic Substance Control (DTSC), the state agency that is promulgating the regulations, is taking additional time to further review the proposed regulations.  Secretary Adams also requested that the Green Ribbon Science Advisory Panel reconvene to address public comments collected from the previous drafts.  A revised third draft of the regulations was presented in November, 2010 following a public comment period.  The third draft contains substantive revisions to the earlier text, including scaled back manufacturer and retailer compliance requirements that were not well-received by the environmental community.

On June 23, 2010, DTSC released its anxiously anticipated draft regulations implementing AB 1879, the 2008 Green Chemistry Initiative law intended to “accelerate the quest for safer products.”  California Health & Safety Code section 25252 (AB 1879) requires DTSC to promulgate regulations: (1) identifying and prioritizing “chemicals of concern” in consumer products; (2) establishing methods for analyzing whether safer alternatives may exist to “chemicals of concern” currently used in consumer products; and (3) developing appropriate regulatory responses based on the results of the safer alternatives analyses. The regulations are currently set to take effect Jan. 1, 2011, after being finalized.  The draft regulations are 61 pages long, include numerous definitions and cross-references to other existing regulatory programs, and are generally very complex.  Determining the potential application of these draft regulations to a specific product, and the obligations of any particular commercial entity engaged in the purchase or sale of any such product, requires a detailed review of the regulations.  Nonetheless, we summarize a few of the key provisions below.         

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COUNTY OF SANTA CLARA et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY 2010 Cal. LEXIS 7241 (July 26, 2010)

The California Supreme Court has held that public entities may retain private counsel on a contingency fee basis to prosecute public nuisance actions in certain limited circumstances.  Those limited circumstances exist when fundamental constitutional rights and the right to continue operation of an existing business are not implicated, and so long as the retention agreements allow the government attorneys to retain the power to control and supervise the litigation.

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On April 1, 2010, the California Supreme Court held that even if there are alleged flaws in the decision-making process underlying a CEQA notice of exemption (“NOE”) and the project approval, the 35-day time period in which to file a lawsuit challenging the NOE determination still runs from the day the NOE is filed and posted.  The Supreme Court rejected plaintiff’s claims that a NOE can trigger the 35-day limitations period only if it announces a valid project approval, explaining that plaintiff’s argument “runs counter to the principle that limitations periods apply regardless of the merits of the claims asserted, and do not depend on whether a timely action would have been successful. It also contravenes the purpose of notice-based statutes of limitations, as well as the Legislature’s intent–clearly expressed in section 21167(d)–that suits claiming an agency has “improperly determined” a project to be exempt from CEQA must be brought within 35 days after an NOE that complies with CEQA requirements is filed.”  The Court also rejected plaintiff’s claim that the NOE was invalid for failing to identify the name of the retail store being developed, holding that the NOE complied in form and content with CEQA’s requirements.  

Stockton Citizens for Sensible Planning v. City of Stockton, 2010 Cal. LEXIS 2358 (2010)