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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In Team Enterprises, LLC v. Western Investment Real Estate Trust, No. 10-16916, 2011 U.S. App. LEXIS 15383 (9th Cir., Cal. July 26, 2011), the Ninth Circuit held that the manufacturer of a machine used in the dry cleaning process may not be held liable for contribution to environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or on State law nuisance and trespass claims.

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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.

On June  20, 2011, the United States Supreme Court held in an 8-0 decision that the Clean Air Act (Act) 42 U.S.C. §7401 et seq., and the Environmental Protection Agency action it authorizes, displace federal common law public nuisance claims against carbon-dioxide emitters. (American Electric Power Co., Inc., et al. v. Connecticut et al., 564 U.S. (2011) 13 (AEP)).

The underlying lawsuits considered by the AEP Court began well before EPA initiated efforts to regulate greenhouse gases under the Act.  In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five defendants, each of which was a major electric power generator using fossil-fuels.  The first group of plaintiffs included eight States and New York City, the second joined three nonprofit land trusts.  The defendants/petitioners are four private power generating companies and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired power plants in several states.  According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.”   The plaintiffs asserted that by contributing to global warming, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law.  Plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.”  The District Court dismissed both suits as presenting non-justiciable political questions, but the Second Circuit reversed.  On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, and that the plaintiffs had adequately alleged Article III standing.  Turning to the merits, the Second Circuit (1) held that all plaintiffs had stated a claim under the “federal common law of nuisance” by relying on a series of United States Supreme Court decisions holding that states may maintain suits to abate air and water pollution produced by other states or by out-of-state industry, and (2) determined that the Act did not “displace” federal common law.  At the time of the Second Circuit’s decision, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive.

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On June 6, 2011, the Supreme Court denied a petition for certiorari by General Electric (GE) to hear the appeal of General Electric v. Jackson, a lengthy case in which GE had unsuccessfully challenged the constitutionality of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the U.S. District Court for the District of Columbia and the U.S. Court of Appeals – D.C. Circuit.  GE had argued that CERCLA Section 106 unconstitutionally violates due process because it authorizes the U.S. Environmental Protection Agency (EPA) to issue unilateral administrative orders (UAOs) to potentially responsible parties (PRPs) to clean up contaminated sites and effectively prohibited prior judicial review by making the risk of non-compliance penalties so onerous that no PRP would ever risk them.  42 USC §§ 9606, 9613(h).

Under CERCLA, when the EPA determines that an environmental cleanup is necessary at a contaminated site, the agency may: (1) negotiate a settlement with PRPs, 42 USC § 9622; (2) conduct the cleanup with “Superfund” money and then seek reimbursement from PRPs by filing suit, 42 USC §§ 9604(a), 9607(a)(4)(A); (3) file an abatement action in federal court to compel PRPs to conduct the cleanup, 42 USC § 9606; or (4) issue a UAO instructing PRPs to clean up the site, 42 USC § 9606.  GE’s suit challenged the constitutionality of option (4)—UAO issuance.

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The State Water Resources Control Board (the Board) has released its draft NPDES Industrial General Permit (draft Industrial General Permit).  Under the federal Clean Water Act (CWA), discharges to waters of the United States are prohibited unless in compliance with a national pollutant discharge elimination system (NPDES) permit.  CWA § 301(a).  Under the California Water Code, the Board is charged with protecting beneficial uses of California’s waters.  U.S. EPA has authorized the Board to implement the NPDES program for discharges regulated under the federal CWA.

The draft Industrial General Permit applies to most industrial facilities, including manufacturing, oil and gas, mining, hazardous waste treatment/storage/disposal, landfills, recycling, steam electric power, transportation, and sewage/wastewater treatment.  The Board asked a blue ribbon panel of experts to address whether it is technically feasible to establish numeric effluent limitations or some other quantifiable limit for inclusion in general storm water permits.  The draft Industrial General Permit reflects the findings of the panel, and incorporates elements of the U.S. EPA’s Multi-Sector General Permit (MSGP).

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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.

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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In United States v. U.S. Magnesium, No. 08-4185, the 10^th Circuit United States Court of Appeals addressed whether failure to comply with the notice and comment procedures of the Administrative Procedure Act (“APA”) precluded the United States Environmental Protection Agency (“EPA”) from changing its prior interpretation of an ambiguous 1991 regulation. 

The lawsuit underlying the appeal concerned five waste byproducts (“the five Complaint wastes”) generated by U.S. Magnesium through its magnesium production process.  The United States argued that U.S. Magnesium’s handling of these wastes did not comply with Subtitle C of the Resource Conservation and Recovery Act of 1976 (“RCRA”).  U.S. Magnesium responded that the EPA previously exempted the five wastes from Subtitle C’s requirements in a prior interpretation of its own regulation, and that the EPA was precluded from changing that interpretation without first complying with the notice and comment procedures of the Administrative Procedure Act (“APA”).  The district court agreed with U.S. Magnesium and granted partial summary judgment in its favor.  

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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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