California Appeals Court Upholds Legislative Workaround that Mooted CEQA Suit Targeting Development Project in Los Angeles

stratteGuest Commentary

By Martin P. Stratte, an Associate with Jeffer Mangels Butler & Mitchell LLP in the firm’s San Francisco, CA office.

Ed. Note: This article was first published on JMBM’s California Land Use Blog. Reprinted with permission.

In August 2018, the California Court of Appeal decided Citizens Coalition Los Angeles v. City of Los Angeles, 26 Cal.App.5th 561 (2018), commonly referred to as “Target II,” which arose from a years-long challenge by citizen activist organizations to the development of a Super Target in Hollywood, California.

As discussed below, the court was asked to resolve the following issue of first impression: what level of environmental review is required by the California Environmental Quality Act (CEQA) for a legislative action that re-designates a project site for the purpose of mooting pending litigation that was filed in opposition to an already approved project?

In essence, what the City of Los Angeles did was re-zone the site of a previously approved Super Target to remove the need for the variances that were adopted in support of the project, which the trial court had struck down in the litigation commonly referred to as “Target I.” Continue reading “California Appeals Court Upholds Legislative Workaround that Mooted CEQA Suit Targeting Development Project in Los Angeles”

EPA’s Return to Rigorous Cost-Benefit Analysis Continues with Impending Methane-Rule Revision

EPA-LogoThe Environmental Protection Agency (EPA) is set to propose changes to the regulation of mercury emissions that can recalibrate the balance between the costs of such controls and the benefits they confer. This action would be consistent with other administrative agency moves, which we have discussed recently here, to elevate the level and quality of economic analysis that past and future regulations must undergo.

The proposal EPA recently sent to the White House’s Office of Management and Budget characterizes the Mercury and Air Toxics Standards Rule for Power Plants (“MATS rule”) as a needlessly expensive mandate and recommends that its costs and benefits should be recalculated. The MATS rule was aimed at reducing toxic power-plant emissions, but utilities have spent an estimated $9.6 billion a year to comply with the new standards, while the mercury emissions reductions have led to a comparatively small estimated annual benefit of $4 million to $6 million. When signing the Energy Independence Executive Order, the President singled out MATS, stating, “Perhaps no single regulation threatens our miners, energy workers, and companies more than this crushing attack on American industry.” Continue reading “EPA’s Return to Rigorous Cost-Benefit Analysis Continues with Impending Methane-Rule Revision”

Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

Contract Dispute Cracks the “Thin Green Line” Activists Are Drawing to Stop U.S. Fossil Fuel Exports

obotA recent post here referenced the efforts of various activist groups’ and west-coast state and local governments—purportedly aimed at stopping foreign nations’ contribution to climate change—to create a “thin green line” against the export of coal and other fossil fuels.  As outlined in that post, Washington State officials refused to issue Lighthouse Resources several environmental certifications and permits needed for construction of an export terminal from which Montana- and Wyoming-mined coal would be shipped to customers in Asia.  A federal judge recently held that a lawsuit alleging that Washington’s interference with the terminal violated the U.S. Constitution could proceed.

But the effort to impede fossil fuel transportation is not limited to Washington.  After contracting with a developer to convert an old military base into a bulk cargo shipping center—the Oakland Bulk & Oversized Terminal (OBOT)—in 2016 the City of Oakland attempted to freeze the development because it learned that the center would primarily be used to facilitate the shipment of coal and other fossil fuels.  Continue reading “Contract Dispute Cracks the “Thin Green Line” Activists Are Drawing to Stop U.S. Fossil Fuel Exports”

A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment

montana s ctBy Amanda Voeller, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Tension between uniform federal regulation and state-level action has become more prevalent recently, and a pending certiorari petition in the U.S. Supreme Court in Christian v. Atlantic Richfield Co., illustrates well this conflict.  In Atlantic Richfield, the Atlantic Richfield Company (ARCO) has asked the U.S. Supreme Court (with the support of a WLF amicus brief) to review and overturn a Montana Supreme Court ruling that creates extreme uncertainty for businesses by allowing state courts to supersede federal environmental regulations. Continue reading “A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment”

Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements

dojenrdThe Justice Department’s (DOJ) policing of class-action settlements in recent months has the potential to serve as a significant check on the plaintiffs’ bar. While DOJ has had the right to express its view of proposed class-action settlements since 2005 pursuant to the Class Action Fairness Act (CAFA), only recently has the department’s Consumer Protection Branch exercised its authority to oppose such settlements. Washington Legal Foundation certainly applauds these efforts to intervene in and oppose frivolous, unfair, or inequitable class settlements, but what DOJ has done recently in several environmental citizen suits may be even more significant. Continue reading “Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements”

Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle

longview-coal-export-site-bv
Port of Longview, WA

In a March commentary, we appraised a legal challenge filed by two companies involved in the mining and delivery of coal against several Washington state officials for their role in blocking approval of a water-port terminal in Longview, Washington. The suit, which has attracted amici curiae briefs from neighboring states and other interested parties, took a step forward on May 30 when Judge Robert J. Bryan denied the defendants’ motion to dismiss. Continue reading “Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle”