ELG wins a Writ of Administrative Mandate for client in Marin County

Posted by in Administrative Law, CEQA, Environmental Legislation and Regulation on October 7, 2016

On September 19, 2016, Marin Superior Court Judge Paul M. Haakenson granted judgment in favor of ELG’s client, the Point San Pedro Road Coalition (“Coalition”), on its Petition for a Writ of Administrative Mandate (“Petition”).  (See decision here.)  ELG filed the Petition on behalf of the Coalition in 2015 to vacate the Marin County (“County”) Board of Supervisor’s September 15, 2015 decision, by a unanimous 5-0 vote, to approve the permit amendment sought by the San Rafael Rock Quarry (“Quarry”) to allow it to import used asphalt for recycling. That exact activity previously had been found to be outside the Quarry’s vested rights by Marin County Superior Court Judge John Sutro Jr. in 2004, after a 2003 trial conducted by ELG on behalf of Coalition. The Quarry is a non-conforming use on its own property, the result of a re-zoning obtained by a prior owner of the Quarry in 1982 in anticipation of the closing of the Quarry, an event the current owner has delayed.

ELG argued, both in a previous Petition filed in 2013, and again in its 2015 Petition (when the permit amendment was re-approved by the County), that the County’s approval of the quarrying permit amendment was: 1) a violation of Judge Sutro’s prior injunction against that precise activity, 2) contrary to the Quarry’s own acknowledgement at the 2003 trial that it had no vested right to conduct that activity, and 3) an approval of the expansion of a non-conforming use in violation of the County’s zoning regulations. Relying on all three legal grounds asserted by ELG for the Coalition, the Court agreed that the County’s approval of the permit amendment was contrary to law. Judge Haakenson’s decision states that the Court will issue a writ of administrative mandate ordering the County to immediately vacate its approval of the Quarry’s Permit amendment request.

ELG also represented the Coalition in the 2003 trial to determine the Quarry’s vested rights on its legal, non-conforming use property, and throughout the CEQA environmental review process concerning the amended quarrying permit imposed on the Quarry, which took place over six years following the conclusion of the trial.


Ninth Circuit Court Holds that Clean Water Act does not Bar Citizen Suit where State had not Commenced an Action “to Require Compliance” with a NPDES Permit

Posted by in Administrative Law, Clean Water Act, Environmental Litigation, Stormwater on August 12, 2013

By Michael Einhorn and Nancy Wilms

In California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., Case No. 11-16959 (9th Cir. July 22, 2013), plaintiff California Sportfishing Protection Alliance (“Plaintiff”) alleged that defendants Chico Scrap Metal and its owners (“Defendants”) violated California’s Industrial Activities Storm Water General Permit, a National Pollutant Discharge Elimination System (“NPDES”) general permit governing industrial storm water discharges from Defendants’ facilities (the “Permit”).  A three-judge Ninth Circuit panel reversed the lower court dismissal of the suit, holding that the action was not prohibited by the “diligent prosecution” bars found in the Clean Water Act (“CWA”).

The CWA permits citizens to sue to enforce the CWA’s prohibition against discharging pollutants without a NPDES permit.  33 U.S.C. § 1365(a)(1).  However, the CWA provides that such citizen suits are barred where an agency or a State is “diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance” with a standard or limitation under the CWA, or related order issued by the governmental entity.  33 U.S.C. § 1365(b)(1)(B).  The CWA also provides that citizen suits are barred where a State “has commenced and is diligently prosecuting an action under a State law comparable to” the administrative penalty provisions of the CWA.  33 U.S.C. § 1319(g)(6)(A)(ii).

In this case, Defendants successfully argued to the district court that the CWA barred Plaintiff’s claims under 33 U.S.C. § 1365(b)(1)(B).  On appeal, Defendants argued that Plaintiff’s claims were barred as well under the 33 U.S.C. § 1319(g)(6)(A)(ii) bar.  The Ninth Circuit disagreed; it held that § 1365(b)(1)(B) does not apply because the state had not commenced an action in court “to require compliance” with the relevant NPDES permit, and that § 1319(g)(6)(A)(ii) does not apply because the state had commenced no administrative penalty action comparable to the one under the CWA.

The Defendants operate scrap metal recycling facilities in Butte County, California subject to the requirements of the Permit.   In 2007, the California Department of Toxic Substances Control (“DTSC”) began investigating Defendants’ facilities, and discovered hazardous contamination.  DTSC ordered Defendants to investigate and characterize the contamination.  After Defendants failed to comply with DTSC’s order, the Butte County district attorney filed civil and criminal actions in 2007 and 2008 against Defendants, alleging violations of state air quality, hazardous waste and occupational safety laws, among others.  Significantly, none of the criminal charges or civil causes of action related to the CWA or violations of the Permit.  These actions were resolved by a plea agreement in October 2008 which required, among other things, Defendants to clean up hazardous substances at their facilities and otherwise abide by consent orders issued by DTSC in 2008.

In January 2010, the United States Environmental Protection Agency (“EPA”) inspected Defendants’ facilities and determined they were not in compliance with the Permit.  Soon after, in March 2010, the Plaintiff sent notice to Defendants as well as state and federal agencies of its intent to sue Defendants under the CWA for violations of the Permit.  After receiving the notices, the agencies did not bring any enforcement proceedings under the CWA; consequently, in May 2010, Plaintiff filed its action.  Thereafter, in June 2010, the California Water Quality Control Board notified Defendants that they were in violation of the Permit, based on the EPA inspection.  Defendants then moved to dismiss the Plaintiff’s action, arguing that the CWA’s “diligent prosecution” bars applied.

First, Defendants argued that a government action “comparable” to one brought under the CWA is sufficient to trigger the § 1365(b)(1)(B) bar against private actions.   The Ninth Circuit disagreed, noting that while a different “diligent prosecution” bar found at § 1319(g)(6)(A)(ii) applies where state actions “comparable” to administrative penalty actions are being “diligently prosecuted,” there is no reference to “comparable” state actions found in the language of § 1365(b)(1)(B).  Accordingly, the court found that because the actions filed by the Butte County district attorney “aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action.”

Defendants also argued that the 2008 consent orders were broad enough to require compliance with the Permit and CWA, triggering the section 1365(b)(1)(B) bar.  Again the Ninth Circuit disagreed, holding that § 1365(b)(1)(B) did not apply because only an action that is “in a court” triggers the § 1365(b)(1)(B) bar against citizen suits, while administrative proceedings do not.  The court found that the 2008 consent orders by DTSC were not the result of an action “in a court,” and that they therefore did not trigger the private action bar.

Seeking then to apply the statutory bar under § 1319(g)(6)(A) (ii), Defendants argued both that they had been prosecuted under California statutes that provide for penalties and that they are exposed to administrative penalties in the event they violate the 2008 consent orders.  However, the Ninth Circuit noted that § 1319(g)(6)(A)(ii) only applies when a state has pursued an action “comparable to this subsection,” and that the relevant subsection, § 1319(g), provides only for the assessment of administrative penalties.  Therefore, the court held that the state actions in court did not constitute administrative proceedings and thus did not trigger the statutory bar “even if the state laws under which the penalties were assessed were ‘comparable’ to the Clean Water Act in a general sense.”

With regard to the 2008 consent orders, the Ninth Circuit cited authority holding that for the § 1319(g)(6)(A)(ii) bar to apply, “the comparable state law must contain penalty provisions and a penalty must actually have been assessed under the state law.”  Quoting Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996).    The court found that here, the 2008 consent orders notified Defendants that they may be liable for penalties for failure to comply, but did not actually assess administrative penalties in the orders themselves.  The court held that even if the state statute cited in the 2008 consent orders were “comparable” to § 1319(g) of the CWA, “Defendants’ potential liability under the consent orders does not trigger the bar of § 1319(g)(6)(A)(ii).”  (Emphasis in original.)  Since the state had not commenced an administrative penalty proceeding comparable to one by the EPA under § 1319(g), the Ninth Circuit concluded that Plaintiff’s claims were not barred.

The Impacts of Sequestration Cuts on EPA Programs

Posted by in Administrative Law, Emerging Issues, NEPA on April 9, 2013

Sequestration budget cuts (“budget cuts”) went into effect on March 1, 2013.  These budget cuts required EPA to cut approximately $425 million from its $8.3 billion annual budget, or about 5%.  In a February 6, 2013 letter, Lisa Jackson, then-Administrator of the U.S. Environmental Protection Agency (“EPA”), identifies to Senator Barbara Mikulski (D-MD) the specific EPA programs to be affected by the budget cuts.  The programs where spending must be cut cover a range of environmental issues including air, enforcement and compliance, tribal, research and development, water, and state cleanup and waste programs.

The air programs identified by Ms. Jackson where spending will be cut are the Energy Star program, the vehicle certification program and the state air monitoring program.  Ms. Jackson indicates that the budget cuts “would reduce the funding EPA provides states to monitor air quality, likely forcing the shutdown of some critical air monitoring sites.”

The enforcement and compliance programs affected are civil and criminal enforcement of violations of environmental laws, National Environmental Policy Act environmental reviews and Superfund enforcement.  Ms. Jackson states “sequestration would cut work to press responsible parties to clean up contaminated sites in communities and restore clean up funds for use at other sites – putting the costs back on the American public.”

Budget cuts to EPA tribal programs will impact tribes by hindering tribal governments’ ability to ensure clean air and water for its members.

EPA research and development programs that will receive reduced funding are air, climate and energy programs, chemical safety for sustainability programs, sustainable and healthy communities, safe and sustainable water resources, human health risk assessment and homeland security research.  Ms. Jackson indicates “under sequestration the reduction in funding would impede EPA’s ability to assess and understand the effect of nanomaterials on human health and dispose of rare earth materials used in electronics, thereby limiting Innovation and manufacturing opportunities with these materials in the US. The reduction in funding for endocrine disrupting chemicals research would limit our nation’s ability to determine where and how susceptible people are exposed to endocrine disrupting chemicals, and to understand how these toxic exposures impact their health and welfare.”

The EPA water programs affected by the budget cuts are the state revolving fund program, water program state implementation grants, water program implementation and Superstorm Sandy appropriations.  Ms. Jackson states, “reductions under sequestration would limit assistance provided to states and tribes to ensure safe and clean water, including protecting children from exposure to lead in drinking water; protecting rivers and streams from industrial and municipal pollution discharges, identifying and developing cleanup plans for polluted waterways, and developing science to support human health and aquatic life.

Lastly, Ms. Jackson lists the EPA state cleanup and waste program cuts which include reduced site assessments and inspections and cuts in leaking underground storage tank grants resulting in fewer contaminated site cleanups.

Oregon District Court holds that NEPA requires further analysis of cumulative impacts in use of herbicides for controlling invasive species under Forest Service management plan.

Posted by in Administrative Law, Environmental Litigation, NEPA on August 23, 2012

In League of Wilderness Defenders/Blue Mountains Biodiversity Project v. United States Forest Service, No. 3:10-CV-01397-SI (D. Ore. Jun. 29, 2012)[link to PDF available here], the District Court for the District of Oregon – Portland Division considered the use of herbicides in controlling invasive plant species in the Wallowa-Whitman National Forest, an area of approximately 2.3 million acres in northeast Oregon and western Idaho.  The Court defined an invasive plant as “a non-native plant whose introduction does or is likely to cause economic or environmental harm or harm to human health,” citing Executive Order No. 13,112, 64 Fed. Reg. 6,183 (Feb. 3, 1999).

In 2005, the Regional Forester for the Pacific Northwest Region of the U.S. Forest Service (also known as Region Six) approved a new management direction on preventing and managing invasive plants, and revised its management direction to approve a list of ten herbicides.  As required by the National Environmental Policy Act (“NEPA”), the Forest Service prepared an Environmental Impact Statement (“EIS”).  The final version, released in March 2010 by the U.S. Forest Service, recommended increasing the use of herbicides to control invasive plants and allowed the use of all ten of the herbicides approved at the regional level.  To reflect these changes, the Wallowa-Whitman National Forest amended its local management plan, and approved this recommended approach in an April 2010 Record of Decision.  The League of Wilderness Defenders (“LOWD”), as a stakeholder, had provided comments to the Forest Service’s EIS, appealed the Forest Service’s decision within the agency, and finally sought judicial review in the Oregon District Court.

LOWD argued that the Forest Service, in approving an Invasive Plants Treatment Project for the Wallowa-Whitman National Forest (the “Project”), did not comply with three federal statutes: the National Forest Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”); NEPA, 42 U.S.C. § 4321 et seq.; and the Clean Water Act, 33 U.S.C § 1251 et seq.  The District Court reviewed these claims under the applicable legal standard that it may set aside an agency’s decision only where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).

First, the Court described the requirements of the NFMA.  The NFMA requires the Forest Service to develop “land and resource management plans” for units of the National Forest System. 16 U.S.C. § 1604(a).  These plans must provide for multiple and sustained yield of products and services including “coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.”  Id., §1604(e)(1).  The Ninth Circuit has explained that NFMA is not the Forest Service’s only consideration when developing site-specific plans.  The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir. 2008).  After a plan is developed, all subsequent actions must be consistent with that plan.  16 U.S.C. § 1604(i).    In this case, the Court found that the Forest Service’s explanation of its modeling data was reasonable, on an appropriate scale, and consistent with the Forest Service’s conclusion, and therefore the agency had complied with NFMA.

Second, the Court reviewed the requirements of NEPA, stating that it declares a broad commitment to environmental quality and prescribes the necessary process but does not mandate particular results.  In general, NEPA requires that before any major Federal action significantly affecting the quality of the human environments, a responsible official must prepare a detailed statement that includes (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided, (iii) alternatives to the proposed action, (iv) the relationship between short-term uses and enhancement of long-term productivity, and (v) any irreversible commitments of resources involved in the proposed action.  42 U.S.C. § 4332(C).  In this case, the Court accepted the Forest Service’s decision that the project should focus primarily on treatment of existing infestations of invasive plants rather than on prevention of future infestations, and concluded that the agency had evaluated a reasonable range of alternative actions.

However, the Court found that the cumulative impacts analysis in the Forest Service’s EIS was insufficient, even under a standard of deference to the agency’s determination in an area involving a high level of expertise.  McNair, 537 F.3d at 987.  The Court held that the Forest Service did not adequately evaluate the cumulative impacts when considered in conjunction with other actions.  Specifically, the EIS presented “vectors” that spread invasive plants (including recreation, grazing, vegetation management, wildfire and prevents, logging, road use, and agriculture) but did not consider the impact of continued introduction and continued treatment.  The Court found that the EIS did not address how continued use of herbicides could affect forest lands that are already highly impacted by these activities that are introducing the invasive species.  In addition, the Court found that the EIS was insufficient because it assumed that direct impacts would be minimal, and concluded that a thorough cumulative impacts analysis was not needed based on that assumption.  The Court found that such an analysis is the very point of a cumulative impacts analysis, and avoiding the analysis is insufficient.  Moreover, this conclusion focuses the EIS exclusively on herbicide use impacts, rather than considering non-chemical activities and their impacts.  Accordingly, the Court remanded the issue for further analysis.

Finally, the Court disagreed with LOWD’s argument that the Forest Service should have evaluated the possibility that permits would be required if CWA standards were amended.  LOWD admitted that at the time the project and EIS were adopted, the Forest Service did not need permits to comply with the CWA.  The Court held it is not arbitrary or capricious to omit discussion of a likely change in law that would require permits.