Real Estate and Construction Law Blog

By James E. Pugh

On April 22, 2008, the City of Los Angeles passed Ordinance No. 179820 and thereby established a city-wide “Green Building Program.”  The program is modeled after the U.S. Green Building Council’s Leadership in Energy and Environmental Design (“LEED”) building standards.  The program addresses five key areas including: (1) site location; (2) water efficiency; (3) energy and atmosphere; (4) materials and resources; and (5) indoor environmental quality.  The new ordinance amends the Los Angeles Municipal Code (“LAMC”) by adding new Sections 16.10 and 16.11, which will likely have a considerable affect on the type of developments the City will approve.

On April 10, 2008, the Army Corps of Engineers ("Corps") and the Environmental Protection Agency ("EPA") issued a final rule governing mitigation requirements for unavoidable impacts to wetlands and other waters of the United States under the section 404 program of the Clean Water Act.  70 Fed. Reg. 19594. This rule is a major change to the Section 404 program.  It was published with nearly 80 pages of preamble in the Federal Register, and the rules itself is more than 30 pages.  It will take some time for the Corps staff and the regulated community to learn the new rule.  The rule is sufficiently complex that it will be many years before the effect of the changes will be fully understood.

California Battles The United States Environmental Protection Agency Over the Right to Curb Greenhouse Gas Emissions From Vehicles

By Olivier Theard

December and January were pivotal months in the continuing struggle over implementation of California's stringent automobile greenhouse gas regulations.  California has tried for some time to impose its limits, adopted as regulations under AB 1493, which would require a 30% reduction in vehicle emissions by 2016, with phased cuts starting in model year 2009.  California's push to cut vehicle emissions is a major component of its mandate under the Global Warming Solutions Act, which requires a reduction in greenhouse gas emissions to 1990 levels by 2020.  However, recent developments at the federal level have undermined California's efforts.  After a whirlwind of court decisions and passage of a federal energy bill, the EPA denied California a waiver under the Clean Air Act that would allow California to implement its laws.  California has sued to reverse the decision.

By Olivier F. Theard and Maria J. Gangemi

I. Introduction

On November 5, California filed suit for an injunction to compel EPA to rule on California's requested waiver from the Clean Air Act's prohibitions of states enforcing their own greenhouse gas emissions standards for automobiles.  Several other states have intervened, seeking to adopt California's standards as well.

Thanks also to LexisNexis for listing this blog as one of its "Top Blogs" on the topic of environmental law and global climate change.

By Randolph Visser and Olivier Theard

I. Businesses in Major Economic Sectors Are Affected by Reporting Requirements

A. Summary of the Proposed Regulations

Pursuant to the Global Warming Solutions Act (which requires that California reduce greenhouse gas emissions to 1990 levels by 2020), the California Air Resources Board (ARB) has issued draft final regulations that will require California businesses across most major economic sectors to account for and report on their greenhouse gas emissions.  Emissions reporting is the first of many significant provisions under the Act that will affect the operation of California businesses, especially those in industries that emit high levels of greenhouse gases.  ARB estimates that the sectors which will be required to report emit 94% of the total greenhouse gases produced in California from industrial and commercial stationary sources.

By Randolph C. Visser and Olivier F. Theard

Pursuant to AB 32 (the Global Warming Solutions Act) the California Air Resources Board (CARB) recently announced that it would go beyond the minimum statutory requirements and has proposed additional “early action measures” designed to help California achieve its statutory goal of reducing greenhouse gas emissions to 1990 levels by the year 2020.  If adopted, the new measures will significantly increase the current list of early action measures which were approved by CARB in June 2007.

By Randolph C. Visser and Olivier F. Theard

Introduction: The California Air Resources Board (ARB) has proposed a new regulation aimed at reducing emissions of diesel particulate matter (PM), oxides of nitrogen and greenhouse gases from in-use, on-road diesel-fueled vehicles.

By Randolph C. Visser and Olivier F. Theard

On July 27, the California Air Resources Board (ARB) passed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from off-road diesel engines.  The regulations require businesses to retrofit or "turn over" their fleets over time.  A summary of these regulations was posted on June 15.  The final version of the regulations contains a few noteworthy revisions, summarized below:

United States v. Atlantic Research Corporation (2007) __ U.S. ___ [http://www.supremecourtus.gov/opinions/06pdf/06-562.pdf].

By Randy Visser and Olivier Theard

In a boon to private parties who undertake to voluntarily clean-up contaminated sites, the Supreme Court in United States v. Atlantic Research Corporation established that parties who undertake clean-up efforts may bring cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against potentially responsible parties (PRPs).  Before this decision, there was a split in the circuit courts regarding whether private parties could recover costs of clean-up, or whether their exclusive remedy was a contribution action which could only be brought after they were sued by the government.  The Supreme Court, in a unanimous opinion by Justice Thomas, ruled that a private party may sue for cost recovery even if that party has not been sued or paid a judgment or settlement to the government.

By Randolph C. Visser and Olivier F. Theard

Recognizing that many industrial businesses in California operate using older, and thus more polluting, off-road diesel vehicle fleets, the California Air Resources Board (CARB) has proposed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from such vehicles and require businesses to retrofit or "turn over" their fleets over time.

By Michael Wilmar and Jeffrey Forrest

In Citizens For Responsible Equitable Environmental Development (CREED) v. City of San Diego Redevelopment Agency, 2005 Cal. App. LEXIS 1850, the California Court of Appeal, Fourth District, recently rejected the appeal by opponents, CREED, of a hotel development project claiming that the City of San Diego Redevelopment Agency ("City") violated CEQA when the City approved the hotel project without first requiring a project-specific EIR.

By Michael Wilmar

Recently, three separate panels of the California Court of Appeal rendered opinions on the availability of attorneys' fees for plaintiffs who bring CEQA challenges. The decisions make clear that courts have considerable latitude in determining who is the "successful party" and whether there has been a "significant benefit" under the private attorney general statute.

(July 7, 2004) 04 C.D.O.S. 6060

By Maria Pracher

Introduction

In 2002, the Town of Apple Valley approved a project allowing the construction of a 1.2 million square foot distribution center with related outbuildings on a 300 acre site. The City Council certified an EIR for the project, adopted findings, and adopted a statement of overriding considerations for seven significant unavoidable environmental impacts. Neither the EIR nor the various public notices issued in connection with the EIR and the public hearings on the project revealed that Wal-Mart would be the project's end user.