Articles Posted in Environmental Law

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BNSF Railway proposed a new railyard approximately four miles from the Port of Los Angeles. Environmental analysis of the project began no later that 2005. The final environmental impact report (FEIR) prepared pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000) exceeds 5,000 pages. The trial court held that the Attorney General, who intervened in the City of Long Beach petition, was entitled to assert objections to the sufficiency of the FEIR that were not raised by any party in the administrative proceedings. BNSF challenged the trial court’s conclusion that the FEIR was deficient for failing to analyze the impact of rendering capacity at BNSF’s existing Hobart yard in the City of Commerce, 24 miles from the port, available to handle additional traffic. The court of appeal affirmed, first holding that the exhaustion requirement that generally apply to parties contesting the adequacy of an environmental impact report do not apply to the Attorney General. The FEIR failed to adequately consider air quality impacts of the project, particularly impacts to ambient air pollutant concentrations and cumulative impacts of such pollutant concentrations. View "City of Long Beach v. City of Los Angeles" on Justia Law

Posted in: Environmental Law

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Halus owned land in a San Leandro industrial zone, where it designed and manufactured wind turbines. It proposed to install a 100-foot-tall wind turbine to generate energy and conduct research and development; it sought a variance from zoning restrictions on height. San Leandro conducted an analysis under the California Environmental Quality Act (Pub. Resources Code 21000) (CEQA). The turbine would have been within the San Francisco Bay Estuary, a major refuge for many species, including threatened or endangered species, and 500 feet from a residential development. The city proposed a mitigated negative declaration (MND) allowing the project to go forward with mitigation measures. In response to comments and objections, San Leandro released a revised MND adding mitigation or monitoring recommended by the Department of Fish and Game, without requiring an Environmental Impact Report (EIR). HOA filed suit. The court held that San Leandro failed to comply with CEQA. San Leandro set aside its approval. The project did not proceed. The court granted HOA attorneys’ fees, Code of Civil Procedure 1021.5. The court of appeal affirmed, finding that the action resulted in the enforcement of an important right affecting the public interest, a significant benefit was conferred on the general public or a large class of persons, and the necessity and financial burden of private enforcement made the award appropriate. View "Heron Bay Homeowners Association v. City of San Leandro" on Justia Law

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Plaintiffs Clews Land and Livestock, LLC; Barbara Clews; and Christian Clews (collectively, CLL) appealed a judgment in favor of defendant City of San Diego (City) on CLL's petition for writ of mandate and complaint for declaratory and injunctive relief, violation of procedural due process, and equitable estoppel. CLL challenged the City's approval of a project to build a private secondary school on land neighboring CLL's commercial horse ranch and equestrian facility and the City's adoption of a mitigated negative declaration (MND) regarding the project. CLL contended the City should not have adopted the MND because the Cal Coast Academy project would cause significant environmental impacts in the areas of fire hazards, traffic and transportation, noise, recreation, and historical resources, and because the MND identified new impacts and mitigation measures that were not included in the draft MND. CLL further argued the City should not have approved the project because it is situated in designated open space under the applicable community land use plan and because the City did not follow the provisions of the San Diego Municipal Code (SDMC) applicable to historical resources. After review, the Court of Appeal concluded CLL's challenge to the MND was barred because it did not exhaust its administrative remedies in proceedings before the City. In doing so, the Court rejected CLL's argument that the City's process for administrative appeals (at least as implicated by this project) violated the California Environmental Quality Act by improperly splitting the adoption of an environmental document (e.g., the MND) from the project approvals. In addition, the City complied with all applicable requirements of the SDMC regarding historical resources and the City's approval of the project did not conflict with the open space designation because the project would be located on already-developed land. View "Clews Land & Livestock, LLC v. City of San Diego" on Justia Law

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In 1998, Modesto, its Sewer District, and its Redevelopment Agency (RDA) sued retail dry cleaning businesses operating in Modesto, the manufacturers of dry cleaning equipment used at those establishments, and the manufacturers and distributors of dry cleaning solvent, alleging that the city’s groundwater, sewer system and easements, and the soil of property within the RDA project area were contaminated with perchloroethylene, a “toxic chlorinated solvent” and seeking recovery for past, present and future costs of investigation and remediation. The Polanco Redevelopment Act (Health & Saf. Code, 33459), which authorized redevelopment agencies to remediate contamination found in property, including private property, located in a redevelopment project area, and to recover costs from the “responsible parties” was central to the suit. After 14 years of litigation, with three appeals, a final judgment awarded damages with respect to three dry cleaning sites, including an award of punitive damages against three defendants; as to all other claims, judgment was entered in favor of defendants. The court of appeal vacated, holding that no special causation standard applies to Polanco Act claims. The court also: remanded with directions to deny motions for summary adjudication on the nuisance claims; reversed a punitive damages award; and vacated a directed verdict regarding property damage. View "City of Modesto v. Dow Chemical Co." on Justia Law

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Respondents-petitioners Central Coast Forest Association and Big Creek Lumber Company asked the Fish and Game Commission to remove (delist) coho salmon south of San Francisco from the list of endangered species in California. Petitioners owned and harvested timber from lands in the area of the coho salmon spawning streams in the Santa Cruz Mountains. Timber harvesting is in part responsible for declining coho salmon populations. The petitioners argued: (1) there never were wild, native coho salmon in streams south of San Francisco, a requirement of being listed as endangered; (2) if there were, they were extirpated by environmental conditions unfavorable to the species; and (3) the salmon currently present in the streams are hatchery plants, implying that the fish are not members of the CCC ESU, and consequently are not deemed wild or native to California. They tender evidence in support of the petition, which they claim “may . . . warrant[]” delisting by the Commission. If sufficient scientific evidence contained in the petition, considered in the light of the department’s scientific report and the department’s expertise, would justify delisting of the species, then the Commission might consider delisting. The Court of Appeal concluded, however, that the evidence presented here did not meet that threshold. The Court concluded the petition did not contain sufficient scientific evidence, considered in light of the department’s scientific report and expertise, to justify delisting the coho salmon south of San Francisco; therefore, there was insufficient evidence that the delisting may be warranted. View "Central Coast Forest Assn. v. Fish & Game Com." on Justia Law

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The Court of Appeal affirmed the trial court's denial of the Conservancy's petition for a writ of mandate to compel the City of West Hollywood to set aside the City's approval of a real estate development project. The court held that the environmental impact report's (EIR) analysis of alternatives to the project was adequate. Although the EIR did not include a conceptual design of Alternative 3, the Conservancy did not cite any legal authority requiring an EIR to include design plans for project alternatives, and the court declined to so hold. Furthermore, the imprecision inherent in the estimates of space reduction did not render the EIR defective. The court also held that the EIR's response to public comments was adequate, and there was substantial evidence to support the finding of infeasibility of Alternative 3. View "L.A. Conservancy v. City of West Hollywood" on Justia Law

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In Department of Finance v. Commission on State Mandates, 1 Cal.5th 749 (2016) ("Department of Finance"), the California Supreme Court upheld a Commission ruling that certain conditions a regional water quality control board imposed on a storm water discharge permit issued under federal and state law required subvention and were not federal mandates. The Supreme Court found no federal law, regulation, or administrative case authority expressly required the conditions; the federal requirement that the permit reduce pollution impacts to the “maximum extent practicable” was not a federal mandate, but rather vested the regional board with discretion to choose which conditions to impose to meet the standard. The permit conditions resulting from the exercise of that choice were state mandates. In this appeal, the Court of Appeal faced the same issue: the parties and the permit conditions were different, but the legal issue was the same - whether the Commission correctly determined that conditions imposed on a federal and state storm water permit by a regional water quality control board are state mandates. The Commission reached its decision by applying the standard the Supreme Court later adopted in "Department of Finance." The trial court, reviewing the case before "Department of Finance" was issued, concluded the Commission had applied the wrong standard, and it remanded the matter to the Commission for further proceedings. The Court of Appeal concluded here the Commission applied the correct standard and the permit requirements were state mandates. View "Dept. of Finance v. Commission on State Mandates" on Justia Law

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Cal Fire’s investigation of the 2007 Moonlight Fire determined that the fire started on property owned by landowner defendants and managed by Beaty. Sierra Pacific purchased the standing timber on the property, and contracted with Howell, a licensed timber operator, to cut the timber. On the day the Moonlight Fire began, two of Howell’s employees, Bush and Crismon, were working on the property installing water bars. Cal Fire’s investigators concluded the fire began when the bulldozer Crismon was operating struck a rock or rocks, causing superheated metal fragments from the bulldozer’s track to splinter off and eventually to ignite surrounding plant matter, and that the fire was permitted to spread when Bush and Crismon failed to timely complete a required inspection of the area where they had been working that day. On the eve of trial in July 2013, consolidated actions were dismissed following a hearing after the trial court concluded Cal Fire could not as a matter of law state a claim against Sierra Pacific, Beaty, or landowner defendants, and that no plaintiff had presented a prima facie case against any defendant. After judgment was entered, the trial court awarded defendants costs without apportionment amongst plaintiffs. It also ordered Cal Fire to pay to defendants attorney fees and expert fees totaling more than $28 million because defendants as prevailing parties were entitled to recover attorney fees on either a contractual basis or as private attorneys general, or alternatively as discovery sanctions. The trial court additionally imposed terminating sanctions against Cal Fire. Plaintiffs appealed, challenging both the judgment of dismissal (case No. C074879) and the postjudgment awards (case No. C076008). Plaintiffs also requested that any hearings on remand be conducted by a different judge. In the published portion of its opinion, the Court of Appeal concluded the trial court’s order dismissing the case as to all plaintiffs based on their failure to present a prima facie case at a pretrial hearing should have been reversed because the hearing was fundamentally unfair: Plaintiffs were not provided adequate notice of the issues on which they would be asked to present their prima facie case. However, the Court concluded the trial court did properly award judgment on the pleadings against Cal Fire. In light of these conclusions, in the unpublished portion of its opinion, the Court found the trial court’s award of costs to defendants as prevailing parties as to any plaintiff but Cal Fire was vacated, and because the trial court did not apportion costs, the costs award was remanded to determine which costs Sierra Pacific, Beaty, and landowner defendants could recover from Cal Fire. Furthermore, the Court determined the trial court erred in awarding attorney fees to the prevailing parties, and that the award of monetary discovery sanctions should have been reversed and remanded for further proceedings. The imposition of terminating sanctions against Cal Fire was affirmed. Plaintiffs' requests for a new judge was rejected. View "Dept. of Forestry and Fire Protection v. Howell" on Justia Law

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Monterey County Water Resources Agency (MCWRA) is a flood control and water agency. Coastkeeper sued, alleging that MCWRA had violated the Porter-Cologne Water Quality Control Act (Wat. Code 13000) by failing to report to the regional water quality board its discharges of agricultural pollutants into the Reclamation Ditch and the Blanco Drain and breach of fiduciary duty under the public trust doctrine. The trial court granted the petition as to the claim of failure to report waste discharge and denied it as to breach of fiduciary duty, commanding MCWRA “to prepare and file a report of waste discharge ... with the Central Coast Regional Water Quality Control Board.” The court of appeal reversed, finding that Coastkeeper failed to exhaust its administrative remedy under the Act, which provides that any person aggrieved by a regional water board’s action or failure to act is entitled to administrative review by the State Water Board, and then by petition for administrative mandamus in the superior court. The regional board was apparently investigating MCWRA's actions; Coastkeeper failed to file a petition for review with the State Water Board of the regional board’s action or failure to act with regard to MCWRA’s alleged waste discharges. View "Monterey Coastkeeper v. Monterey County Water Resources Agency" on Justia Law

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In this second appeal, challenging the environmental impact report (EIR) and related project approvals for two natural resource plans for the proposed Newhall Ranch development, the Court of Appeal affirmed the post-remand judgment and accompanying writ. The court held that both actions were legally permissible under the California Environmental Quality Act (CEQA), and rejected plaintiffs' claim that Public Resources Code section 21168.9 prohibits partial decertification of an EIR, and that the same section prohibits leaving project approvals in place while decertifying an EIR. The court held that a trial court has authority to partially decertify an EIR; a trial court has the power to leave some project approvals in place after partial decertification of an EIR; the trial court did not abuse its discretion in issuing the limited writ; and the writ provided an adequate remedy for a Fish and Game Code section 5515 violation. View "Center for Biological Diversity v. California Department of Fish and Wildlife" on Justia Law