Thursday, August 21, 2014

Ninth Circuit Rejects Environmental Groups’ RCRA Claims Against Railyard Operators

The Ninth Circuit has affirmed the dismissal of claims by environmental groups attempting to characterize air emissions from California railyards as “disposal” of waste under the Resource Conservation and Recovery Act (RCRA). 

In 2011, a coalition of environmental groups led by the NRDC filed a complaint in federal district court in Los Angeles alleging that particulate emissions associated with diesel locomotives at railyards in San Bernardino and Riverside Counties violated RCRA because those emissions constitute “disposal” of waste, and are therefore subject to the statute, which governs the disposal of solid and hazardous waste. The district court dismissed the plaintiffs’ complaint, concluding that the Clean Air Act, and not RCRA, applies to the emissions from the railyards.

The Ninth Circuit affirmed the district court’s dismissal in an opinion dated August 20, 2014. The court’s opinion cited the plain meaning of the RCRA statute—which excludes “emitting” from its definition of “disposal”—as well as the statute’s legislative history, which the court characterized as demonstrating an intent “to reduce the volume of waste that ends up in our nation's landfills.”

In reaching this conclusion, the court rejected the plaintiffs’ invitation to fill a “gap” in the statutory scheme for regulating air emissions from railyards, concluding that the particular emissions alleged to originate from the railyards are “indirect sources” of air pollutants that “fall entirely outside the ambit of federal regulation.”  The court did, however, note that diesel locomotives are regulated under EPA regulations implementing the 1990 amendments to the Clean Air Act, and that states may regulate indirect sources such as railyards through provisions of State Implementation Plans (SIPs) adopted under the Clean Air Act. 

The Ninth Circuit’s decision, Center for Community Action and Environmental Justice et al. v. BNSF Railway Co. et al., Case No. 12-56086, is available here.

-- Chris Jensen

For more information, contact Chris Jensen at (415) 228-5411 or

Wednesday, August 13, 2014

CEQA Alert: The End of Level of Service (“LOS”) Analysis? OPR Proposes New Guidelines for Evaluating Transportation Impacts

On August 6, 2014, the Governor’s Office of Planning and Research (OPR) released its preliminary recommendations for changing how transportation impacts are analyzed under CEQA: Updating Transportation Impacts Analysis in the CEQA Guidelines, Preliminary Discussion Draft of Updates to the CEQA Guidelines Implementing Senate Bill 743 (Steinberg, 2013).

Currently, the most common metric used in evaluating a project’s transportation impacts is “level of service” (LOS), which measures the delay that vehicles experience at intersections and on roadway segments. According to OPR, focusing on a project’s impact on LOS provides an incomplete assessment of potential impacts and often results in unintended consequences, including the imposition of mitigation measures – such as increased roadway capacity – that may actually exacerbate poor traffic conditions over the long term. The LOS metric can also create additional hurdles for infill development projects, because adding vehicles to an already congested urban environment increases the likelihood of a finding that the project’s impacts are potentially significant, thereby triggering the need for an environmental impact report (EIR). 

SB 743, signed into law on September 27, 2013 and codified at Public Resources Code Section 21099, created a process for revising the CEQA Guidelines for transportation impact analysis. SB 743 requires OPR to establish new criteria for determining the significance of transportation impacts of projects located within “transit priority areas,” which are areas located within one-half mile of an existing or proposed major transit stop. The criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” Following adoption of the new criteria, automobile delay, as described solely by LOS or similar measures of vehicular capacity or traffic congestion, will not be considered a significant impact under CEQA for such projects, except in locations specifically identified in the Guidelines. Although this mandate focuses on projects in “transit priority areas,” SB 743 provides that OPR may adopt guidelines establishing alternative metrics for evaluating transportation impacts outside of transit priority areas as well. As discussed below, OPR has proposed to do just that. 

OPR’s Preliminary Discussion Draft responds to SB 743 by proposing a new Guidelines section, Section 15064.3, focused on evaluating the significance of transportation impacts and developing alternatives and mitigation measures related to those impacts. The proposed Section 15064.3 identifies “vehicle miles traveled” – the distance of automobile travel associated with a project – as the principal metric for evaluating a project’s transportation impacts, and it explicitly states that a project’s effect on automobile delay will no longer constitute a significant environmental impact under CEQA. It also provides additional guidance with respect to evaluating transportation impacts associated with various types of land use and transportation projects. Finally, it identifies several factors that a lead agency may consider in evaluating transportation-related impacts on local safety, including those relating to bicyclists and pedestrians, queuing on freeway off-ramps, speed differentials between adjacent travel lanes, and increased motor vehicle speeds.

OPR proposes a phased approach to the implementation of the new Guidelines. Once filed with the Secretary of State, the proposed changes would immediately apply (prospectively) to the analysis of projects located within one-half mile of major transit stops or high-quality transit corridors.  For other areas, a lead agency may choose to be governed by the new provisions if it updates its CEQA procedures to conform to the provisions of the new Section 15064.3. After January 1, 2016, the new section would apply statewide.

Comments and suggestions on the draft are due to OPR before October 10, 2014 at 5:00 p.m. OPR expects that the preliminary discussion draft will “undergo significant revisions in response to public input.” The preliminary discussion draft and instructions for submitting comments and suggestions are available here.

--Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at, (415) 228-5456, or Nicole Martin at, (415) 228-5435.

Sunday, August 10, 2014

CEQA Alert: California Supreme Court Holds No CEQA Review is Required for Adoption of Voter-Sponsored Initiatives

On August 7, the California Supreme Court filled the last gap in the interpretation of CEQA in the context of land use initiatives. Previously, the courts had determined that (1) CEQA compliance is required for land use initiatives proposed by a city council, prior to placing the initiative on the ballot, but (2) CEQA compliance is not required for land use initiatives proposed by voters and adopted at an election.

In Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County, et al., the Court addressed a final permutation: must a city council comply with CEQA before adopting a voter-sponsored land use initiative? The answer is “no.”

At the heart of the dispute was the proposed expansion of a Wal-Mart store in the City of Sonora into a “Supercenter.” The City initially prepared and circulated for public review a draft environmental impact report (EIR) for the proposed expansion project pursuant to CEQA. Prior to the City Council’s vote on the EIR, it was served with a notice of intent to circulate a petition called the “Wal-Mart Initiative,” proposing an ordinance adopting a specific plan for the expansion, aimed at streamlining project approvals. Over 20% of the City’s registered voters signed the petition. The City Council then postponed the vote on the EIR and ordered preparation of a report, pursuant to California Elections Code § 9212, to evaluate the initiative’s consistency with previous planning commission approvals for the proposed expansion. After considering the report, the City Council adopted the ordinance.

The Tuolumne Jobs & Small Business Alliance challenged the City’s adoption of the ordinance for failure to conduct environmental review pursuant to CEQA. On demurrer by the City, Wal-Mart, and the initiative’s proponent, the trial court dismissed petitioner’s claims without leave to amend. However, the court of appeal ruled that CEQA review must be completed whenever a city council chooses to adopt a land use ordinance proposed by voter initiative, rather than submit it to a special election. The Supreme Court disagreed and reversed.

The Court based its decision on an interpretation of the Election Code that took into account the need for judicial deference to the constitutional power of initiative that is reserved to the people of California. When a local legislative body receives a municipal ordinance initiative that has been signed by at least 15% of the city’s registered voters, such as the Wal-Mart Initiative, it must do one of the following: (a) adopt the ordinance, without alteration, within 10 days after the certification of the petition is presented to the legislative body; (b) immediately order a special election where the ordinance, without alteration, will be presented to the voters of the city; or (c) order a report pursuant to Section 9212, which may consider the proposed ordinance’s effects on land use, infrastructure, and “[a]ny other matters the legislative body requests.” Within 10 days of receiving the report, which must be produced within 30 days of certification of the petition, the legislative body must either adopt the ordinance or order a special election pursuant to subsection (b). Cal. Elec. Code §§ 9212, 9214.

The Court considered it “well established” that CEQA compliance is not required when a local initiative is submitted to voters pursuant to Section 9214(b). Tuolumne Jobs extends the rule to voter initiatives directly adopted by the local legislative body under Section 9214(a). The Court recognized that, as a matter of statutory interpretation, requiring CEQA review prior to direct adoption would be inconsistent with, and would effectively nullify, the mandatory deadlines provided by the applicable Election Code provisions, and there was no evidence that the Legislature intended CEQA to supersede these provisions.

Moreover, even if CEQA review could theoretically be completed within these deadlines, the legislative body would be powerless to reject, or require alterations to, a proposed project, given the constraints of Section 9214. According to the Court, requiring CEQA review prior to the direct adoption of voter initiatives would run counter to legislative intent. Finally, the Court held that public policy did not dictate a different outcome.

A link to the decision can be found here.

By Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at (415) 228-5456 or, or Nicole Martin at (415) 228-5435 or

Thursday, August 7, 2014

Fracking Contractor Sentenced to 28 Months in Prison for Clean Water Act Violation

A federal court in Ohio has handed down a 28-month prison sentence and imposed a $25,000 fine for dumping fracking waste in violation of the Clean Water Act.
The defendant, Benjamin Lupo, is the former owner of Hardrock Excavating, a Youngstown, Ohio oil and gas services contractor. Lupo had previously pled guilty  to one count of making an unpermitted discharge of fracking waste. In pleading guilty, Lupo admitted to ordering an employee to discharge wastewater to a tributary of the Mahoning River more than 30 times over a three-month period from a Hardrock Excavating facility. The discharge caused waste liquid that included a mixture of brine and oil-based drilling mud to enter the tributary and the Mahoning River.
The releases were discovered after the Ohio Department of Natural Resources received an anonymous tip in January 2013 reporting illegal after-hours discharges coming from the Hardrock Excavating facility. State inspectors went to the facility and discovered a hose releasing liquid into the storm drain. A sample of the discharge subsequently collected by the state contained benzene, toluene, and other pollutants, officials said.
The employee, Michael Guesman, pled guilty in August 2013, admitting to running a hose from a 20,000 gallon storage tank filled with fracking wastewater to a nearby storm drain and draining the contents of the tank into the drain in August 2013. Guesman received three years of probation at his sentencing in March 2014.
The aggressive prosecution of Lupo highlights the need for robust environmental compliance programs in the oil and gas industry. A comprehensive and consistently implemented compliance program is the best insurance against the fines, negative publicity, and in some instances, time in custody that well operators and consultants face following a conviction of an environmental crime. This is particularly true for fracking operations, given the intense public scrutiny—and the possibility of significant prison terms—that fracking operators currently face.
For more information, contact Davina Pujari at (415) 228-5459 or, or Chris Jensen at (415) 228-5411 or

Wednesday, August 6, 2014

CEQA Alert: Court of Appeal Blunts Latest CEQA Attack on California’s High-Speed Train System

On July 24, 2014, California’s Third Appellate District affirmed a trial court’s ruling that the California High-Speed Rail Authority’s (Authority’s) revised final program environmental impact report/environmental impact statement (PEIR/EIS) for the proposed California high-speed train (HST) system generally complied with CEQA, with the exception of a flawed traffic impact analysis.

The appellate decision arose from two separate challenges below. The “Atherton I” petitioners had secured a partial victory in their challenge to the Authority’s revised final PEIR, which was the product of a successful challenge to the “original” final PEIR: the trial court ruled that the revised final PEIR failed to adequately address the traffic impacts of narrowing and moving Monterey Highway to accommodate the Pacheco Pass alignment for the HST.
However, the trial court rejected the Atherton I petitioners’ other CEQA challenges, holding that it was proper for the Authority to defer analysis of certain vertical profile alignment impacts—relating to the elevation of track above ground level—until a later project-specific EIR. The court also held that petitioners’ challenge to information contained in the project description that was based on an allegedly flawed revenue and ridership model reflected a “classic disagreement among experts that often occurs in the CEQA context” and did not provide a basis for invalidating the PEIR.
With respect to the challenge brought by the “Atherton II” petitioners, the trial court found that the Authority’s alternatives analysis complied with CEQA and there was no abuse of discretion in its failure to consider alternatives submitted by petitioners’ expert consultant.
Due to the deficiencies in the traffic analysis with respect to the Monterey Highway impacts, the trial court denied the Authority’s motion for discharge of the writ in the underlying challenge to the original PEIR and issued a supplemental peremptory writ ordering the Authority to rescind and set aside the resolution certifying the revised final PEIR. The Atherton I and Atherton II petitioners then collectively appealed in light of their partial victory below.
On appeal, petitioners alleged that the Authority’s revised final PEIR violated CEQA because:
  1. it provided an inadequate analysis of the “vertical profile options for alignment” along portions of the San Francisco Peninsula;
  2. it used a flawed revenue and ridership model that improperly skewed the results in favor of the Pacheco Pass alternative for connecting the Central Valley to the San Francisco Bay Area, rather than the Altamont Pass alternative further to the north; and 
  3. the range of alternatives analyzed was inadequate. 
As a preliminary matter, the court of appeal rejected the Authority’s argument that CEQA was preempted in this case by the Interstate Commerce Commission Termination Act (ICCTA).  The court held that application of the “market participation doctrine,” which generally distinguishes between a state’s role as regulator versus its role as a market participant, defeated the preemption claim.
On the merits of the CEQA claims, the court of appeal upheld the Authority’s use of a program EIR, deferring site-specific analysis of the vertical alignment of the HSP in the Belmont-San Carlos-Redwood City portion of the project area to a later project-level EIR. The fact that the project-specific analysis of an aerial viaduct for that portion of the route was proceeding concurrently with revisions to the PEIR did not necessitate inclusion of that project-specific discussion in the programmatic document. 
With respect to the allegedly flawed revenue and ridership model, the court held that the challenge amounted to a classic CEQA “battle of the experts” and, because substantial evidence supported the methodology of the Authority’s consultant, the PEIR could not be found deficient on that basis.
Finally, the court held that the Authority analyzed an adequate range of alternatives and was not required to evaluate additional alternatives proposed by petitioners, based on one of the following findings:
  1. the claim was barred by collateral estoppel;
  2. the alternative was substantially similar to one of those evaluated in the revised final PEIR;
  3. the alternative would continue to be studied at the project level; or
  4. the Authority’s infeasibility findings were supported by substantial evidence.
This will probably not be the last of the CEQA challenges facing the HST. A petition for review by the Supreme Court is likely. Also, because the court of appeal affirmed the trial court’s issuance of a supplemental peremptory writ and ordered the Authority to set aside its approval of the revised final PEIR to correct deficient traffic analyses, additional challenges may follow issuance of a (further) revised final PEIR with respect to that issue. Finally, any project-level EIRs prepared for the HST may also face CEQA challenges.
For more information, contact Don Sobelman at (415) 228-5456 or; or Nicole Martin at (415) 228-5435 or

Thursday, July 3, 2014

State Water Board Approves Emergency Regulations Regarding Curtailment Orders

On July 2, the State Water Resources Control Board (“Water Board”) approved emergency regulations authorizing it to issue immediately enforceable curtailment orders to holders of surface water rights in California. 

The new regulation authorizes the Water Board, upon determining that “flows are sufficient to support some but not all diversions,” to issue curtailment orders to post-1914 appropriative (a.k.a., “junior”) water right holders in order of water right priority, beginning with the most junior water user.

The Water Board may also issue curtailment orders to senior--i.e., riparian and pre-1914 appropriative--water right holders if it receives: (i) a complaint alleging that a senior holder is interfering with a water right, or (ii) information that a senior holder is unlawfully diverting stored water.

Because curtailment orders issued under the emergency regulation are immediately enforceable, water right holders who violate an order are subject to penalties that begin to accrue from the date of violation. By contrast, prior to adoption of the regulation, the Water Board could only issue notices of curtailment, which were not themselves enforceable, but rather required case-by-case investigations of alleged violations followed by commencement of administrative proceedings against the violator before an enforcement order could issue.   

A water right holder who is subject to a curtailment order under the new regulation may petition the Water Board for reconsideration of the order. Within 30 days of receipt of the petition, the Water Board must conduct an initial review to determine if the petition raises “significant factual issues that are likely to merit reconsideration,” and if so, must immediately suspend the curtailment order until the petition is heard. Unless suspended by the Water Board, curtailment orders may remain in effect for up to 270 days.

The adopted emergency regulation will now be submitted to the Office of Administrative Law, and will likely take effect in mid-July. The proposed resolution adopting the regulation, as well as the final revisions to the resolution and regulation language, can be found here.

The Water Board makes information about its drought year water actions available on its website.

--Samir Abdelnour

For more information, contact Samir Abdelnour at (415) 228-5443 or

Friday, June 27, 2014

Court of Appeal Upholds State Water Board Regulation Targeting Frost-Prevention Activities of Vineyards in Mendocino and Sonoma Counties

In Light v. State Water Resources Control Board (Opinion filed 6/16/2014), California’s First Appellate District upheld a State Water Resources Control Board (SWRCB) regulation that will potentially limit the amount of water that can be diverted from the Russian River in Mendocino and Sonoma Counties during certain times of the year for frost prevention purposes. The regulation at issue, “Regulation 862,”  applies to “any diversion of water from [a portion of ] the Russian River stream system…for purposes of frost protection from March 15 through May 15.”

As characterized by the Court of Appeal, the purpose of Regulation 862 is to “protect salmonids in the Russian River stream system from stranding mortality due to sudden drops in water level during the later spring and early summer,” which, according to the SWRCB, was primarily attributable to the diversion of water by growers, vineyards in particular, during certain times of the year for use as frost protection. 

Regulation 862 calls for the formation of “water demand management programs” or “WDMPs,” which would be responsible for monitoring water levels in affected watercourses, determining when certain water levels presented a threat to young salmon, and developing “corrective actions” if water levels drop too low. Those diverting water must implement the “corrective actions,” which might include alternative methods for frost protection, construction of offstream storage, and alternative methods of diversion, or cease diverting water altogether.

Two separate petitions for writ of mandate challenging Regulation 862 were filed in Mendocino and Sacramento Counties. Those petitions were consolidated for decision in Mendocino County Superior Court which, in February 2012, issued a stay enjoining the SWRCB from enforcing Regulation 862.

The trial court invalidated Regulation 862 on the basis that:
  1. the SWRCB exceeded its authority in adopting a regulation that limited the use of water by riparian users;
  2. the regulation violated the “rule of priority” governing the manner in which insufficient water is divided among users (who may possess different types of water rights);
  3. the regulation improperly delegated authority to the WDMPs; and
  4. the declaration of necessity for adoption of the regulation was not supported by substantial evidence. The trial court also ruled that the SWRCB violated the California Environmental Quality Act (CEQA) by preparing an inadequate Environmental Impact Report (EIR).
The Appellate Court reversed the trial court’s ruling and vacated the preliminary injunction, holding that:
  1. the SWRCB does have the authority to enact regulations governing the “unreasonable” use of water;
  2. the SWRCB  has the authority to limit the use of water by riparian and pre-1914 appropriative rights users, even though they are not subject to the permitting and licensing authority of the SWRCB;
  3. Regulation 862, on its face, did not violate the rule of priority and a determination as to whether specific measures adopted by the WDMP violate the rule of priority and whether such a violation is justified pursuant to the “reasonable and beneficial use” provisions of Article X, Section 2 of the California Constitution, would be premature;
  4. Regulation 862 did not constitute an improper delegation of authority to governing bodies of the WDMPs since the SWRCB maintained independent discretion to evaluate and enforce the requirements of the WDMPs; and
  5. the SWRCB’s statement of necessity justifying adopting the regulation was supported by substantial evidence. 
In an unpublished portion of the opinion, the Court of Appeal also reversed the trial court CEQA ruling, finding that the EIR prepared to evaluate potential environmental impacts of Regulation 862 satisfied CEQA’s statutory requirements. 

Absent rehearing, the deadline for filing a petition for review of the Court of Appeal’s decision with the California Supreme Court is July 28, 2014.

--Nicole Martin

For more information, contact Nicole Martin at or (415) 228-5435.