The Federal Energy Regulatory Commission (“FERC”) issues licenses needed to construct and operate hydroelectric dams pursuant to the Federal Power Act (“FPA”; 16 U.S.C. § 791a, et seq). Under long-standing law, and with the limited exception of state-issued water quality certifications, the FPA “occupies the field” of licensing a hydroelectric dam, and bars environmental review of the federal licensing procedure in state courts; this preemption is necessary because recognizing a “dual final authority” for such projects would be “unworkable.” (First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152.) States have limited authority under the Clean Water Act (33 U.S.C. § 1341) to impose stricter water quality conditions than are federally required on a FERC license, through the section 401 water quality certification process, but must act on a project applicant’s certification request within one year or certification is deemed waived. (33 U.S.C. § 401(a)(1); Alcoa Power Generating Inc. v. FERC (D.C. Cir. 2011) 643 F.3d 963, 972.) Further, any disputes concerning the Federal licensing process or the adequacy of “required studies” for that process (including “environmental studies” serving as the predicate for the state’s water quality certification conditions) are subject to FERC’s review. (18 C.F.R. part 4, 34(i)(b)(vii) (2003).)
In a published decision filed June 12, 2018, the Second District Court of Appeal (Div. 6) held that the same broad definition of a “project” that mandates more extensive CEQA review of activities undertaken or approved by public agencies also applies in determining the scope of statutory exemptions that serve to exempt certain projects from CEQA review. County of Ventura v. City of Moorpark, Broad Beach Geologic Hazard Abatement District (2018) 24 Cal.App.5th 377. The Court of Appeal affirmed the trial court’s judgment to the extent it rejected Ventura County’s CEQA, preemption, and extraterritorial regulation challenges to a settlement agreement between the City of Moorpark and the Broad Beach Geologic Hazard Abatement District (BBGHAD), a state law entity created to carry out a Malibu beach restoration project. But it reversed with directions to declare void (as unlawful abdications of BBGHAD’s police power) certain of the settlement agreement’s provisions which severely limited BBGHAD’s authority to modify project haul routes in the event of changed circumstances.
On April 30, 2018, the United States Supreme Court denied the petition for writ of certiorari filed in North Coast Railroad Authority v. Friends of the Eel River, U.S. Supreme Ct. Case No. 17-915, which presented this issue: “Whether citizen suits that seek to enforce state environmental approval requirements against a state-owned railroad by enjoining activities subject to the [Surface Transportation Board]’s exclusive jurisdiction are categorically preempted by [the Interstate Commerce Commission Termination Act of 1995].” The high court’s denial of review left undisturbed the California Supreme Court’s novel decision holding state public entity NCRA’s railroad project on its own line was subject to CEQA (and also onerous and delay-producing CEQA litigation) as an act of “self-governance”, whereas private rail carriers are exempt from these “regulatory” burdens by virtue of federal preemption under ICCTA. (My post on the California Supreme Court’s decision can be found here.)
Continue Reading When “Tigers Eat Their Young” – Federal Preemption Of CEQA In Context Of Railroad Projects Will Continue To Present Complex Issues Following U.S. Supreme Court’s Denial of Certiorari In Friends Of Eel River Case
In a lengthy, partially published opinion filed November 21, 2017, the Fifth District Court of Appeal addressed four CEQA challenges asserted by plaintiffs and appellants (“AIR”) to the sufficiency of Kern County’s 2014 Final EIR for Real Parties’ (“Alon Energy”) project to modify an existing Bakersfield oil refinery. Association of Irritated Residents v. Kern County Board of Supervisors, et al. (Alon USA Energy, Inc., et al., Real Parties in Interest) (2017) 17 Cal.App.5th 708. The proposed modification would allow the refinery, which has existed and operated at the site through various ownerships since 1932, to unload two unit trains (104 cars) of crude oil (150,000 barrels) per day. The trains would carry potentially more volatile crude oil (i.e., likely to explode in a rail accident) transported from the Bakken formation in North Dakota. The refinery would process 70,000 barrels of crude oil per day, its currently authorized maximum level, and pipe the balance of the unloaded crude to other refineries to be processed.
Continue Reading Fifth District Holds Cap-And-Trade Program Compliance Supports Refinery Project EIR’s Conclusion That GHG Emissions Are Less Than Significant, Also Addresses Important CEQA Baseline and Railroad Operation Preemption Issues
On October 15, 2017, Governor Edmund G. Brown, Jr. sent a veto letter to California State Assembly Members, returning a controversial and flawed proposed land use bill – AB 890 – without his signature. My partner Bryan Wenter and I authored a post here last month detailing the many problems we saw with the bill. (See “The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities For CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights,” by Arthur F. Coon and Bryan W. Wenter, AICP, posted September 19, 2017.)
Fortunately, Governor Brown was receptive to the bill’s many critics, and struck a blow for local land use control, local initiative rights, CEQA reform and commence sense by vetoing it. His short letter to Assembly members, which can be found here, states in pertinent part that “[i]nstead of the piecemeal approach taken in this bill, I prefer a more comprehensive CEQA review, which takes into account both the urgent need for more housing and thoughtful environmental analysis. Hear, hear!
AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives. The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.
The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review. Long story short: AB 890 is a bad bill that proposes a cure far worse than the perceived disease. As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.
On July 7, 2017, the California Supreme Court filed its 69-page opinion, written by Chief Justice Cantil-Sakauye and joined by five other justices, in Friends of the Eel River v. North Coast Railroad Authority, et al. (2017) 3 Cal.5th 677. The Court held that the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”; 49 U.S.C., § 10101 et seq.) does not exempt the application of CEQA to a railroad project undertaken by a state public entity, defendant North Coast Railroad Authority (NCRA), on a rail line also owned by that entity. The Court acknowledged that ICCTA’s federal regulatory scheme would preempt a state’s imposition of environmental regulation such as CEQA on a privately owned railroad. That is because settled federal law holds ICCTA preempts a state’s imposition of “environmental preclearance requirements” that have the effect of preventing or delaying the operation of a privately owned railroad. But the Court also held that, as applied to govern the conduct of subdivisions of the sovereign state, the CEQA process constitutes an act of “self-governance” and not preempted “regulation” within the meaning of ICCTA.
Continue Reading California Supreme Court Holds CEQA Applies to State Entity’s Railroad Project on State-Owned Rail Line as Act of “Self-Governance”, Not “Regulation” That Would Be Preempted by Federal Law
A new year often brings fresh perspective. With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come. The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.
Numerous CEQA-related developments have recently been in the news. Some of possible interest include:
Controversy has dogged the California high speed rail project since before its inception with the 2008 passage of Proposition 1A, the bond measure providing the project’s initial funding. The controversy has not abated in the years since, and the project has been subject to ever-escalating cost estimates and almost constant second-guessing. It has also been the target for multiple CEQA lawsuits. Recent developments in this area demonstrate just how complex the legal landscape can get when it comes to CEQA’s application to large and long-term public railway projects. Two very different bodies – the California Supreme Court and the federal Surface Transportation Board (STB) – have just waded into this legal thicket to try to provide some clarity. But things could get worse before they get better in that regard, as the stage is set for potentially conflicting rulings on the application of federal preemption law to CEQA.