Our California Environmental, Land Use, Energy, and Resources practice lawyers have counseling and litigation experience in all aspects of development and redevelopment.
Publications
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04.17.2024Supreme Court Rules Legislative Permit Conditions Not Exempt From Nollan/Dolan ScrutinyUpdatesIn a dispute over a traffic impact fee imposed on a residential building permit by El Dorado County, the U.S. Supreme Court unanimously rejected the long-standing position of California and other state courts that the Takings Clause of the U.S. Constitution applies differently when permit conditions are imposed legislatively rather than administratively.
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04.08.2024CAISO Releases Ambitious 2023-2024 Transmission Plan To Address State’s Climate GoalsUpdatesCalifornia Independent System Operator released its draft 2023-2024 Transmission Plan on April 1, 2024. As expected, the 2023-2024 Plan incorporates projections for significant new generation of renewable energy and plans for major new transmission projects to carry the additional energy.
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03.18.2024California Land Use & Planning Law - 39th EditionLawyer Publications
This comprehensive book provides an up-to-date summary and analysis of California's complex land use and planning laws. Cited by the California Supreme Court and numerous appellate courts and assigned at law schools across the state, it has been an authoritative resource for over 40 years.
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01.29.2024BLM Proposes Updated Plan To Streamline Solar Development in the WestUpdatesThe U.S. Bureau of Land Management announced in January 17, 2024, the publication of its draft Programmatic Environmental Impact Statement to help streamline and accelerate utility-scale solar energy development on public lands throughout the West.
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12.21.2023BOEM Announces Regional Environmental Analysis of Floating Wind Energy Development Offshore CaliforniaUpdatesThe Bureau of Ocean Energy Management published on December 20, 2023, its notice of intent to prepare a Programmatic Environmental Impact Statement of reasonably foreseeable impacts of floating offshore wind energy development activities on the five leased areas offshore Humboldt County and Morro Bay, California.
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10.19.2023California Enacts Broad Climate Disclosure LawsUpdatesCalifornia Governor Gavin Newsom signed two climate disclosure bills into law on October 7, 2023. They will impose significant reporting obligations on thousands of companies doing business in California.
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07.17.2023San Francisco Adopts Ordinance To Facilitate the Conversion of Office Buildings to HousingUpdates
In an effort to address the city’s office vacancy and much-needed housing, the San Francisco Board of Supervisors approved the “Commercial to Residential Adaptive Reuse and Downtown Economic Revitalization” ordinance on June 27, 2023. On July 5, 2023, Mayor London Breed approved the ordinance, which will become effective on August 4, 2023.
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04.20.2023IRS Issues Guidance on Battery Sourcing Requirements for Clean Vehicle Tax CreditsUpdatesThe Internal Revenue Service published guidance on April 17, 2023, in the form of a Notice of Proposed Rulemaking, detailing the critical minerals and battery components requirements under Section 30D, enacted by the Inflation Reduction Act of 2022.
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04.17.2023Court Orders Refund of All Unexpended Fees in Landmark Mitigation Fee Act CaseUpdatesA recent decision highlights the importance of strict compliance with the Mitigation Fee Act’s requirement that findings be made every five years concerning unexpended fees.
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03.16.2023EPA Proposes Stringent National Drinking Water Standards for Six PFASUpdatesFor the first time and after much anticipation, the Environmental Protection Agency proposed National Primary Drinking Water Regulations for key "forever chemicals."
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01.11.2023IRS Issues Fact Sheet for New Federal Clean Vehicle Tax CreditsUpdatesThe Internal Revenue Service published a fact sheet clarifying changes in federal clean vehicle tax credits enacted through the Inflation Reduction Act in August 2022.
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01.11.2023The Biden Rule: Redetermining Where Water Ends and Land BeginsUpdatesThe U.S. Environmental Protection Agency and the U.S. Department of the Army jointly announced on December 30, 2022, the latest final rule that attempts to define “waters of the United States” under the Clean Water Act. The Rule will take effect 60 days after its publication in the Federal Register.
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12.08.2022BOEM Conducts First-Ever California Offshore Wind Lease SaleUpdatesOn December 6–7, 2022, the Bureau of Ocean Energy Management (BOEM) held its third offshore wind lease sale this year—and the first of its kind for floating wind—bringing in $757.1 million from five lease areas off the central and north coasts of California.
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10.05.2022California Allows Housing on Commercial Lands, Limits Required ParkingUpdatesIn what has become a near-annual ritual, California Governor Gavin Newsom has signed into law a large package of bills aimed at addressing the state’s glaring housing shortage.
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09.09.2022California Approves Ambitious Plan to Phase Out Sale of New Gas-Powered Cars by 2035UpdatesThe California Air Resources Board, on August 25, 2022, voted to adopt the lengthy and complex second iteration of the state’s ambitious zero-emission vehicle regulation now set to fully phase out the sale of conventional gas-powered vehicles by 2035.
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09.07.2022California Seeks To Curb Declining Water Supply With New Executive ActionsUpdates
Governor Gavin Newsom announced a revamped water strategy on August 11, 2022, in response to updated projections that California could witness a 10% reduction in water supply by 2040 due to the accelerated impacts of climate change.
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08.26.2022The Inflation Reduction Act and the Rise of Clean HydrogenUpdatesPresident Biden signed into law the Inflation Reduction Act on August 16, 2022, which, among other things, uses the tax code to slow the effects of climate change by significantly investing in clean energy and reducing of greenhouse gas emissions by 40% by 2030.
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08.19.2022The Inflation Reduction Act’s Impact on Offshore Wind LeasingUpdatesThe $437 billion Inflation Reduction Act, signed into law on August 16, 2022, by President Biden, makes historic investments in clean energy. The IRA allocates $369 billion toward energy security, carbon emissions reduction, and climate resilience.
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07.18.2022California Expands Energy Commission’s Jurisdiction to Bolster Clean Energy DevelopmentUpdatesGov. Newsom signed AB 205 into law on June 30, 2022, a legislative effort that significantly expands the California Energy Commission’s jurisdiction and encourages the development of new clean energy projects.
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06.16.2022California Court Rules Bees Can Be Listed Under the California Endangered Species ActUpdatesIn a notable decision interpreting the California Endangered Species Act, a California court of appeal ruled that insects are eligible for listing as threatened, endangered, or candidate species under the act.
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06.08.2022BOEM Proposes First Ever West Coast Offshore Wind Lease SaleUpdatesThe Bureau of Ocean Energy Management published its Proposed Sale Notice on May 31, 2022, for what would be the first ever offshore wind energy leases on the west coast of the United States.
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05.19.2022Proposed Revisions to Indian Trust Land Regulations Limit Third-Party InterestsUpdatesThe Bureau of Indian Affairs has proposed preliminary revisions to the regulations that govern the acquisition of land into trust for Indian tribes. The proposed revisions would streamline the fee-to-trust process and eliminate many important checks and balances that protect third-party interests.
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05.11.2022California Land Use & Planning Law: HousingLawyer PublicationsAlan Murphy co-authored a book chapter titled “Housing” in California Land Use & Planning Law (38th edition, 2022).
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03.24.2022Government Moves to Dismiss Case Challenging New York Bight Wind Energy Area DesignationsUpdatesA New Jersey based nonprofit organization, Save Long Beach Island, and its president sued in the U.S. District Court for the District of Columbia in January 2022.
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03.15.2022EPA Adopts New ASTM Standard for Phase I Environmental Site AssessmentsUpdatesThe U.S. Environmental Protection Agency, on March 14, 2022, issued both a final rule incorporating revised ASTM International standard practices, ASTM International’s E1527–21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,’’ and a proposed rule soliciting comment on this action.
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02.02.2022Escalating Stakes in Battle for Ocean WindUpdatesOffshore wind development in the United States continues to draw opposition from coastal landowners, businesses, organizations, and other users of ocean waters, as it has since the industry first emerged here.
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12.09.2021The Infrastructure Investment and Jobs Act Creates a Network of Electric Vehicle Charging Stations, but Issues RemainUpdatesThe Infrastructure Investment and Jobs Act, signed into law by President Biden on November 15, 2021, has the potential to transform the surface transportation sector in the United States.
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09.29.2021California Commits $15 Billion to Fighting Climate ChangeUpdatesGovernor Gavin Newsom signed a $15 billion legislative package on September 23, 2021, funding efforts to combat climate change in California over the next three years.
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09.28.2021California Enacts New Legislation to Accelerate Housing ProductionUpdatesCalifornia Governor Gavin Newsom recently signed into law several bills intended to accelerate local approval of housing projects and increase housing production.
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09.20.2021Court Upholds California Law Limiting Local Governments’ Ability to Deny Housing Development ApplicationsUpdatesIn California Renters Legal Advocacy and Education Fund v. City of San Mateo, the California Court of Appeal rejected a city’s interpretation of what constitutes an “objective” standard under the Housing Accountability Act (HAA), Government Code section 65589.5, and upheld the constitutionality of the law and amendments that strengthened it.
This update was published in American Planning Association: California Chapter Northern News "Calif. Court Upholds Limiting Local Governments’ Ability to Deny Housing Developments" on 09.20.2021. -
08.19.2021FAST-41 Environmental Review and Permitting Process Changes in the Senate Infrastructure BillUpdates
Title VIII of the Infrastructure Investment and Jobs Act (H.R. 3684), the infrastructure bill recently passed by the U.S. Senate, includes several important amendments to Title 41 of the Fixing America’s Surface Transportation (FAST) Act, or FAST-41, which have the potential to significantly reform the federal environmental review and permitting process for covered infrastructure projects.
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07.27.2021Potential Rent Relief for San Francisco Small Businesses Forced to Shut DownUpdatesOn July 20, 2021, the San Francisco Board of Supervisors unanimously approved an amendment to the San Francisco Commercial Eviction Moratorium Ordinance codifying a legal presumption to potentially provide rent relief to small businesses forced to shut down due to the COVID-19 pandemic.
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06.07.2021California Governor Newsom Extends Flexibility to Hold Virtual Public MeetingsUpdatesOn June 2, 2021, in response to a written request by a coalition of local government agencies, California Governor Newsom announced that N-29-20 will not terminate on June 15, and that state and local agencies can continue to conduct virtual public meetings as needed.
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01.30.2021CEQA Year in Review—2020UpdatesDespite relatively few published opinions this year, there were significant rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations. Click here to read the full report.
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10.01.2020California Governor’s Executive Order N-80-20 Regarding Commercial EvictionsUpdatesGovernor Gavin Newsom issued Executive Order N-80-20 on September 23, 2020, extending Executive Order N-28-20 through March 31, 2021, with respect to commercial evictions only.
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Updated 06.18.2020California Urgency Legislation (SB-939) May Significantly Affect Commercial Rent Obligations and Lease Termination RightsUpdatesOn Friday, May 22, the California Senate Judiciary Committee voted in favor of an amended version of SB-939, which would limit the rights of many commercial landlords to enforce certain provisions of their leases.
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04.30.2020Bay Area Counties Relax Restriction on Construction and Other Low-Risk ActivitiesUpdatesThe six Bay Area counties that led the way in requiring their citizens to shelter in place on March 16 and again on March 31—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—issued new orders on April 29 extending many of the shelter-in-place requirements to May 31.
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04.29.2020California Governor Newsom Allows Electronic Noticing Under CEQA and Suspends Tribal Consultation Requirements for 60 DaysUpdatesGovernor Gavin Newsom issued an executive order on April 22 suspending for a period of 60 days (1) the filing, posting, notice, and public access requirements related to certain notices under the California Environmental Quality Act, and providing for electronic posting; and (2) certain aspects of the consultation process with Native American tribes.
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04.10.2020COVID-19 in California: Local Eviction MoratoriumsUpdatesLast month, Governor Gavin Newsom signed an Executive Order which allows but does not require local governments to impose temporary limitations on residential and commercial evictions in certain COVID-19 related situations.
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04.01.2020Non-Essential Construction Eliminated in More Restrictive Bay Area Shelter-in-Place OrdersUpdatesOn March 31, six Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—jointly issued new shelter-in-place restrictions that expand, clarify, and extend certain shelter-in-place restrictions until May 3, 2020.
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03.23.2020California Governor’s Executive Order Aimed at Assisting Borrowers, Tenants, Renters, and Homeowners Affected by COVID-19UpdatesAs the widespread economic impacts of the coronavirus (COVID-19) worsen, Governor Gavin Newsom issued Executive Order N-28-20 on March 16, 2020, to assist Californians experiencing financial hardship.
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03.19.2020Real Estate Guidance During the Coronavirus PandemicUpdatesBelow is a list of real estate issues that employees, developers, landlords, tenants, and lenders may need to address in the wake of COVID-19.
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03.12.2020San Francisco Places More Limits on Office DevelopmentUpdatesSan Francisco voters adopted Proposition E, the “San Francisco Balanced Development Act,” (the act) tying future office development to the city’s production of housing—particularly affordable housing.
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02.05.2020Bird Is the Word: US Fish & Wildlife Service Proposes Narrow Interpretation of Migratory Bird Treaty ActUpdatesThe U.S. Fish and Wildlife Service issued a proposed rule on January 30, 2020, that narrowly interprets the protections afforded by the Migratory Bird Treaty Act.
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01.30.2020CEQA Year in Review—2019UpdatesThe past year saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies. Click here to read the full report.
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10.10.2019New California Law Restricts Cities’ Ability to Limit HousingUpdatesCalifornia Governor Gavin Newsom signed into law yesterday a major set of restrictions on the actions California cities and counties may take to impede housing development. Senate Bill 330 broadly aims to prevent local agencies from putting up new barriers to housing production.
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10.08.2019California Lawmakers Deliver Rental Relief: Tenant Protection Act of 2019UpdatesGovernor Gavin Newsom signed into law the Tenant Protection Act of 2019, AB 1482, (now California Civil Code Section 1946.2 and 1947.12), on [DATE], joining only Oregon in enacting a statewide rent control law.
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09.12.2019San Francisco Sellers: COPA Now in EffectUpdatesThe San Francisco Mayor’s Office of Housing and Community Development released its much-awaited Community Opportunity to Purchase Act (COPA) Program Rules on Monday, September 3, 2019. (The mayor signed COPA on May 3, 2019. More information about the legislation can be found in our previous update.)
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01.10.2019CEQA Year in Review — 2018BlogsThe California Supreme Court issued its only CEQA opinion of 2018 at the end of the year. In Sierra Club v. County of Fresno, the court rejected a standard air quality impact analysis in the EIR for a typical mixed-use development project. The court declined to apply the substantial evidence standard of review to the EIR’s discussion of the impact.
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01.08.2019Federal Court Requires Additional Environmental Review for Offshore Fracking Off California CoastUpdatesA federal court recently prohibited the U.S. Department of the Interior from approving any plans or permits for offshore fracking off the California coast until it complies with the Endangered Species Act (ESA) and the Coastal Zone Management Act (CZMA).
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12.14.2018Agencies Release Proposed Rule to Limit Clean Water Act JurisdictionUpdatesThe Environmental Protection Agency and the Army Corps of Engineers announced a proposed rule to redefine the term “waters of the United States” under the Clean Water Act on December 11, 2018.
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12.04.2018California Affirms State Law Prohibition of Incidental Take of Migratory Birds Despite Contrary Federal StanceUpdatesThe California Department of Fish and Wildlife and the California attorney general have jointly issued an advisory regarding California’s state law protections for migratory birds.
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11.29.2018Supreme Court Limits Authority to Designate Critical Habitat Under Endangered Species ActUpdatesIn a unanimous decision with immediate repercussions for the administration of the Endangered Species Act (ESA), the U.S. Supreme Court held that an area is eligible for designation as critical habitat under ESA only if it is also “habitat” for the species within the meaning of the statute.
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Updated 07.25.2018Major Changes Proposed to Endangered Species Act RegulationsUpdatesThe U.S. Fish and Wildlife Service and National Marine Fisheries Service published three proposed rules last week that would revise the regulations implementing portions of the Endangered Species Act.
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06.21.2018CEQ Invites Comments on Potentially Sweeping Changes to NEPA RegulationsUpdatesThe Council on Environmental Quality yesterday issued an advance notice of proposed rulemaking inviting input on potential changes to the CEQ regulations under the National Environmental Policy Act, the federal law that requires environmental impact assessment for projects involving federal funding or other federal approvals.
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05.24.2018Federal Indian Reserved Water Rights and the No Harm RuleArticlesMost American Indian rights to water trace their origins to 19th century treaty negotiations with the United States. The 1908 Supreme Court case Winters v. United States established that the federal statutes and treaties setting aside land for Indian reservations also impliedly reserved sufficient water to fulfill the purpose of those reservations.
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2018Forest Resources
ABA Section of Environment, Energy, and Resources
American Bar Association
Environment, Energy, and Resources Law: The Year in Review 2017
Forest Resources chapter -
05.02.2018U.S. Fish and Wildlife Service Issues Guidance on Endangered Species Act Incidental Take PermitsUpdatesThe U.S. Fish and Wildlife Service issued a guidance memorandum addressing when an incidental take permit may be needed under Section 10(a)(1)(B) of the Endangered Species Act for projects that modify habitat of federally listed species.
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04.19.2018Federal Agencies Sign MOU to Require “One Federal Decision” on Major Infrastructure ProjectsUpdatesOn April 9, 2018, the heads of a dozen federal agencies executed a memorandum of understanding on implementation of Executive Order 13807, which directed federal agencies to expedite environmental review and permitting for major infrastructure projects.
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04.16.2018FCC Reduces Regulatory Barriers to 5G Wireless DeploymentUpdatesThe Federal Communications Commission recently adopted an order containing sweeping regulatory changes to speed the deployment of advanced wireless services to provide connectivity for innovative Internet of Things, augmented reality, unmanned vehicles, and artificial intelligence-driven devices, services, and systems.
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04.05.2018Federal Spending Bill Changes Wildfire Suppression Funding and Other Forestry InitiativesUpdatesThe $1.3 trillion Consolidated Appropriations Act of 2018, passed March 23, 2018, includes bipartisan measures to fundamentally change how the U.S. Forest Service and other agencies pay for wildfire suppression.
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02.15.2018White House Releases Final Proposal to Streamline Infrastructure PermittingUpdatesOn February 12, 2018, the White House released a set of proposals to streamline the federal environmental review process for infrastructure projects.
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01.31.2018White House Proposes to Streamline Environmental Reviews for Infrastructure ProjectsUpdatesThe Washington Post last week reported a leaked White House document that revealed a far-reaching set of proposals to streamline the environmental review process for infrastructure projects.
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01.24.2018Supreme Court Sends Challenges to Clean Water Rule to Federal District CourtsUpdatesIn a unanimous decision on January 22, the U.S. Supreme Court ruled that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts rather than directly in the courts of appeals.
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01.05.2018CEQA Year in Review — 2017BlogsIn 2017, the California Supreme Court issued two decisions involving highly controversial questions of first impression. In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal’s ruling that the EIR for SANDAG’s regional transportation plan was fatally flawed because it had not sufficiently considered the 2050 greenhouse gas emissions reduction goal in the Governor’s executive order.
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01.05.2018CEQA Year in Review 2017Updates
The California Supreme Court decided three cases in 2017, two of which involved highly controversial questions of first impression.
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01.02.2018Department of Interior Reverses MBTA’s Take Definition in a New Solicitor’s OpinionUpdatesThe U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37050, on December 22, 2017, which adopts the position that the Migratory Bird Treaty Act (MBTA) prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts intended to take a migratory bird.
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11.2017Governor Signs Housing Legislation, Including Streamlining BillArticles
Northern News, APA California – Northern
Governor Brown has signed 15 bills designed to address the State’s severe shortage of affordable housing. -
08.24.2017Executive Order Aims to Speed Up Environmental Reviews of Infrastructure ProjectsUpdatesPresident Donald J. Trump issued Executive Order 13807, on August 15, 2017, which is intended to accelerate the environmental review and permitting for infrastructure projects that require an environmental impact statement under the National Environmental Policy Act.
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08.07.2017CA Supreme Court Holds CEQA Not Preempted by Federal Rail Transportation Law for Projects Carried Out by State AgenciesUpdates
The California Supreme Court has issued its decision in Friends of the Eel River v. North Coast Railroad, an important case regarding preemption of state environmental law by the Interstate Commerce Commission Termination Act, which contemplates a unified national system of railroad lines subject to federal, not state, regulation.
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08.01.2017Should Infrastructure Project Developers Invoke Streamlined Environmental Review Under FAST-41?UpdatesTitle 41 of the Fixing America’s Surface Transportation Act (FAST-41) includes measures to streamline environmental reviews for certain infrastructure projects.
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07.17.2017Double Trouble—Is Black Sky Capital Blue Skies for Lenders?UpdatesAn annoying question for lenders is whether or not a lender can enforce two loans to the same borrower and secured by the same property.
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06.29.2017Agencies Release Proposed Rule to Rescind Obama-Era Clean Water RuleUpdatesThe Environmental Protection Agency and the U.S. Army Corps of Engineers released a proposed rule on June 27, 2017, that will rescind the Obama administration’s 2015 Clean Water Rule and recodify the pre-2015 regulations that it replaced.
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06.12.2017Impact of Ninth Circuit Upholding Biological Opinion for Silver State South Solar Project in NevadaUpdatesIn Defenders of Wildlife v. Zinke, the U.S. Court of Appeals for the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.
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05.2017The Year in Review 2016Lawyer Publications
American Bar Association
Section of Environment, Energy, and Resources Law
Water Quality and Wetlands Chapter -
04.27.2017Court Rules Forest Products Industry Group Has Standing to Challenge Critical Habitat DesignationUpdatesA forest products trade association has standing to challenge the critical habitat designation for the northern spotted owl, the U.S. Court of Appeals for the District of Columbia Circuit held in Carpenters Industrial Council v. Zinke, No. 15-5304 (April 11, 2017).
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04.04.2017CA Supreme Court Boosts Plaintiffs’ Challenges to Endangered Species Listing Under CESAUpdatesThe Supreme Court of California recently ruled that under the California Endangered Species Act (CESA), plaintiffs may use a delisting petition, supported by new evidence, to challenge a prior decision by the California Fish and Game Commission to list an endangered species.
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03.06.2017Fish and Wildlife Service Approves New 30-Year Eagle Act RuleUpdatesThe U.S. Fish and Wildlife Service has formally approved the long-awaited, 30-year eagle take rule, which will allow renewable energy companies and other developers of large projects to obtain a 30-year permit (as opposed to the previous five-year permit) for the incidental take of bald and golden eagles.
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03.02.2017Executive Order Signals Federal Clean Water Act Jurisdiction Will Be NarrowedUpdatesIn the latest chapter of the seemingly never-ending controversy over the Clean Water Act’s reach, on February 28, 2017, President Trump signed an executive order directing the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers to rescind or revise the Obama administration’s 2015 Clean Water Rule.
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01.31.2017DOI Issues Solicitor’s Opinion That MBTA Prohibits Incidental TakeUpdatesThe U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37041 on January 10, 2017, arguing that incidental take is prohibited under the Migratory Bird Treaty Act (MBTA).
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01.23.2017City Does Not Have Burden of Showing Reasonableness of Housing FeesArticlesJust over a year after the California Supreme Court strongly endorsed inclusionary housing ordinances, the Second District Court of Appeal upheld a city’s collection of in-lieu housing fees against a developer’s claim that the city failed to carry its burden of proving the fees were reasonably related to development impacts. 616 Croft Ave., LLC v. City of West Hollywood, No. B266660 (Second Dist. Sept. 23, 2016).
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01.05.2017California Supreme Court Limits Attorney-Client Privilege for Lawyer InvoicesUpdatesIn a 4-3 decision, the California Supreme Court ruled that attorney invoices submitted to public agencies are not categorically exempt from disclosure under the California Public Records Act.
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01.05.2017CEQA Year in Review — 2016BlogsIn 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project approval after a negative declaration or EIR has previously been adopted or certified for the project.
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12.30.2016CEQA Year In Review 2016UpdatesIn 2016, the California appellate courts issued published opinions in 21 CEQA cases.
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12.01.2016OSHA’s New Anti-Retaliation Workplace Illness and Injury Reporting Rule: How Employers Can PrepareUpdatesOn November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction that sought to block the nationwide implementation of the new Occupational Safety and Health Administration’s anti-retaliation rule, “Improve Tracking of Workplace Injuries and Illnesses.”
This Update was republished in Law360 on 12.05.2016, "How Employers Can Prep For New OSHA Injury Reporting Rule." -
10.27.2016New California Lease Requirements for Disability AccessUpdatesPerkins Coie previously published an alert regarding California legislation (SB 1186), which required disclosures in commercial leases as to whether the property being leased had been inspected by a Certified Access Specialist (CASp). On September 16, 2016, new legislation (AB 2093) was enacted to encourage parties to acknowledge accessibility issues and address any necessary remediations during lease negotiations.
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09.28.2016Courts Must Defer to Agency Determination on Whether a Changed Project is a New ProjectUpdates
In Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Supreme Court No. S214061, filed Sept. 19, 2016), the California Supreme Court resolved the vexing question of whether a change to a project that previously has been studied under CEQA constitutes a new project necessitating a new environmental review, or a modification that can be evaluated under CEQA’s subsequent review provisions allowing reliance on earlier CEQA documents.
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09.15.2016California’s New Climate Change Laws Tighten Limits on GHG, Increase Legislative Oversight of CARBUpdatesCalifornia Governor Jerry Brown signed into law last week two controversial anti-climate change bills that will tighten greenhouse gas (GHG) limits by 40% and increase legislative supervision of the California Air Resources Board (CARB)—the agency responsible for reducing GHG emissions.
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08.30.2016D.C. Circuit Overturns FWS Approval of Wind Farm Due to Bat ConcernsUpdatesThe U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all reasonable alternatives for reducing deaths to the endangered Indiana bat.
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08.15.2016Regional Planning Do-Over: Summarizing Plan Bay Area 2040 and California Sustainable Communities StrategiesArticles
The Registry (The Q)
Authors Cecily Barclay and Julie Jones discuss future issues of implementation for "Plan Bay Area 2040," the region's sustainable communities strategy. -
08.11.2016Ninth Circuit Finds Navy’s Low Frequency Active Sonar Program Violates Marine Mammal Protection ActUpdatesIn NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of doubt to marine mammal species.
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08.09.2016EPA Declines to Regulate Forest Road Discharges Under the Clean Water ActUpdatesThe Environmental Protection Agency issued a decision on July 5, 2016, that declined to regulate discharges from forest roads for regulation under Section 402 of the Clean Water Act.
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06.01.2016Supreme Court Rules that Clean Water Act Jurisdictional Determinations Are Reviewable in CourtUpdatesThe U.S. Supreme Court ruled on May 31, 2016 that an approved jurisdictional determination issued by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review.
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05.31.2016If At First You Do Not Succeed: Fish and Wildlife Service Tries Again With 30-Year Eagle Act PermitUpdatesOn May 6, 2016, the Fish and Wildlife Service published a proposed rule that would substantially change how the Service administers its conservation and management program under the Bald and Golden Eagle Protection Act.
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04.05.2016Ninth Circuit Rules Navy Satisfied NEPA in Considering Terror Threat to San Diego FacilityUpdatesThe U.S. Court of Appeals for the Ninth Circuit last week rejected a claim under the National Environmental Policy Act that the Navy did not adequately consider the environmental consequences of a potential terrorist threat with respect to the redevelopment of a military complex near downtown San Diego.
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09.08.2014California Energy Commission Delays Compliance With Energy Disclosure Program for Smaller Nonresidential BuildingsUpdatesThe California Energy Commission (CEC) implemented the Nonresidential Building Energy Use Disclosure Program in two phases.
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12.19.2013California Energy Commission Provides Guidance for New Nonresidential Building Energy Use Disclosure ProgramUpdatesThe California Energy Commission (CEC) recently issued updated regulations for its new Nonresidential Building Energy Use Disclosure Program. The updated regulations provide practical guidance to building owners for complying with the Disclosure Program.
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10.23.2013California Supreme Court Makes It Easier to Challenge Local Affordable Housing RequirementsUpdatesUnder the Mitigation Fee Act, when a city imposes a fee, dedication, reservation or other exaction on a development project, the developer has the right to pay under protest, obtain the necessary project approvals and proceed with construction, while at the same time disputing the legality of the requirement.
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08.16.2013California Energy Commission Delays Implementation of Nonresidential Building Energy Disclosure RegulationsUpdatesOn August 14, 2013, the California Energy Commission announced for the second time this summer that implementation of California’s new energy use disclosure regulations has been delayed. These delays affect the regulation’s original compliance deadlines, which we explained in our update dated May 9, 2013.
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08.07.2013California Supreme Court Redefines “Baseline” Under California Environmental Quality ActUpdatesThe California Supreme Court has both resolved a split in the appellate courts and forged new law on the baselines agencies may use to assess projects’ environmental effects under CEQA. Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, Case No. S202828 (Cal. Supreme Court, August 5, 2013).
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05.09.2013California Energy Commission Amends Nonresidential Building Energy Disclosure RegulationsUpdatesThe California Legislature adopted Section 25402.10 of the California Public Resources Code in 2007.
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05.07.2013California Cities and Counties Can “Just Say No” to Medical Marijuana DispensariesUpdatesThe California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding that the ban was not preempted by state statutes governing medical marijuana.
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04.29.2013CEQA Reform: The Cure May Be Worse Than the DiseaseUpdatesAccording to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.” But a close review shows that the bill would actually impose a new set of burdensome procedural requirements on CEQA lead agencies and project applicants.
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04.02.2013New Significance Standard for Greenhouse Gas Emissions Is Not New Information Triggering Supplemental CEQA ReviewUpdatesIn an opinion published on March 28, 2013, a California court of appeal answered three questions under the California Environmental Quality Act that the published decisions have not yet addressed.
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02.25.2013New CEQA Bill - Cure or Band-Aid?Updates
In response to a business community campaign calling for broad CEQA reform, Senate President Pro, California State Senator Tempore Darrell Steinberg, released his highly anticipated CEQA “modernization” bill.
This Update was also published on Law360.
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02.19.2013Use of Project-Specific Significance Thresholds Does Not Violate CEQAUpdatesThe first published California Environmental Quality Act case of 2013, Save Cuyama Valley v. County of Santa Barbara, strongly endorsed a lead agency’s authority to use its own, project-specific significance thresholds in an environmental impact report.
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11.05.2012How Much Uncertainty Does CEQA Allow? Court Upholds EIR's Practical Approach for Evaluating Uncertain Cumulative Impacts, but Invalidates Biological Mitigation and Water Supply Analysis as Too UncertainUpdatesIn Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve.
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11.02.2012Court Rules City Council Can't Skip CEQA By Adopting Voter-Proposed LegislationUpdatesHow often do we hear project proponents ask whether there is a way to shortcut the CEQA timeline or head off litigation? It's not an unusual question given that some proposals draw fire no matter how much energy goes into the environmental disclosure and mitigation process.
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06.29.2012California Court of Appeal Upholds Statewide Climate Change Scoping PlanUpdatesOn June 19, 2012, in Association of Irritated Residents v. California Air Resources Board, the court of appeal in San Francisco upheld the Climate Change Scoping Plan adopted by the Air Board in December 2008. The court rejected claims by environmental groups that the plan violated the Global Warming Solutions Act of 2006, commonly known as AB 32.
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06.15.2012Speak Now or Forever Hold Your Peace - Issue Exhaustion Applies to CEQA ExemptionsUpdatesOverturning a rule announced 15 years ago, the California Supreme Court has issued a landmark decision holding that the requirement that parties first address their complaints at the agency level before litigating those issues in court applies to challenges to agency decisions regarding whether a project is exempt from the California Environmental Quality Act. If the decision-making agency holds a hearing on the project, future litigants must make sure someone first apprised the agency of the relevant issues before they can bring those claims to court.
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05.04.2012Court Upholds Validity of Agreements Tolling the California Environmental Quality Act’s Statute of LimitationsUpdatesParties commonly enter into agreements tolling the statute of limitations for claims arising under the California Environmental Quality Act (CEQA). However, the validity of such agreements, which some argue have thwarted the public’s interest in prompt resolution of CEQA disputes, has not been certain. In Salmon Protection & Watershed Network v. County of Marin, the California Court of Appeal made clear that such agreements are valid and enforceable, at least in certain circumstances.
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04.27.2012Court Upholds Use of Future Baseline Under CEQAUpdatesIn Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, the California Court of Appeal for the Second Appellate District ruled that, when supported by substantial evidence, projected future conditions may serve as an appropriate baseline for measuring a project's impacts under the California Environmental Quality Act.
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01.12.2012Dissolution of Redevelopment Agencies Under AB1X 26: Wind-Down Requirements and Imminent DeadlinesCalifornia Redevelopment Association (CRA) v. Matosantos (No. S194861)UpdatesThe California Supreme Court’s decision in California Redevelopment Association (CRA) v. Matosantos Commercial Corporation (No. S194861) requires redevelopment agencies (RDAs) to wind down immediately.
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12.30.2011California Supreme Court Upholds Legislation Dissolving Redevelopment Agencies and Invalidates the Voluntary "Opt In" Payments That Would Have Allowed Such Agencies to ContinueCalifornia Redevelopment Association v. Matosantos Commercial Corporation (No. S194861)UpdatesThe California Supreme Court has announced that recently enacted legislation disbanding redevelopment agencies is constitutional, while the companion legislation that would have allowed redevelopment agencies to continue to exist if they made "voluntary" payments is unconstitutional.
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12.19.2011Federal Appeals Court Upholds Army Corps’ Economic Analysis for Issuance of Wetlands Permit Sierra Club v. Van Antwerp, U.S. Court of Appeals for the District of Columbia (No. 10-5284)UpdatesIn Sierra Club v. Van Antwerp, decided by the U.S. Court of Appeals for the District of Columbia Circuit, the Army Corps of Engineers approved a permit under the Clean Water Act (the Act) authorizing the fill of approximately 54 acres of wetlands for the construction of a large town center outside of Tampa, Florida.
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12.14.2011California Court Rules That an EIR Need Not Evaluate the Impact of Sea Level Rise on a ProjectBallona Wetlands Land Trust v. City of Los Angeles (Case No. B231965)UpdatesCalifornia's Second District Court of Appeal has addressed provisions of the California Environmental Quality Act (CEQA) checklist questionnaire that appear to require analysis of the effects of environmental hazards on the proposed project.
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12.01.2011California Court Reverts to Commonly Used Traffic Baseline for Analysis Under the California Environmental Quality ActPfeiffer v. City of Sunnyvale (H036310)UpdatesThe Sixth District Court of Appeal, in Pfeiffer v. Sunnyvale, recently upheld the use of a traffic baseline that included future projects despite an earlier Sixth District case that had raised serious questions about that practice.
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11.18.2011County Violates California’s Anti-NIMBY Law by Rejecting Housing Project With No Affordable UnitsUpdatesIn Honchariw v. County of Stanislaus, the California Court of Appeal ruled that the county’s decision to deny a subdivision map for a housing project violated California’s Housing Accountability Act (the Act), also known as the “Anti-NIMBY” law, even though the project did not include any affordable units.
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10.18.2011San Francisco Bay Conservation and Development Commission Approves Policies to Address Sea Level RiseUpdatesAfter two-and-a-half years of public review, the San Francisco Bay Conservation and Development Commission (BCDC) unanimously approved a comprehensive set of amendments to its Bay Plan to address climate change and the resulting sea level rise anticipated to occur in San Francisco Bay.
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10.07.2011California Environmental Quality Act Revised to Encourage Solar and Infill ProjectsUpdatesIn recent years, California has enacted numerous laws to encourage solar and infill development. Governor Jerry Brown has now signed Senate Bill 226, which amends the California Environmental Quality Act (CEQA) to further encourage projects designed to reduce greenhouse gas emissions.
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09.27.2011Governor Signs Bill Streamlining CEQA Litigation for "Environmental Leadership Development Projects"UpdatesCalifornia Governor Jerry Brown just signed AB 900, the Jobs and Economic Improvement Through Environmental Leadership Act of 2011. This bill creates a streamlined litigation process for challenges to environmental impact reports for certain projects that are expected to create jobs and cause relatively few environmental impacts. The bill allows these cases to be heard directly by the court of appeal, on an expedited basis, bypassing the trial court.
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08.31.2011California Supreme Court Clarifies Interaction of Federal Clean Water Act and California State Law Governing California Energy Commission JurisdictionUpdatesFor power plants over 50 megawatts, the Warren-Alquist Act provides a “one stop” permitting scheme at the California Energy Commission to obtain certain permits, but not Clean Water Act discharge permits.
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08.17.2011California Supreme Court Gives Redevelopment Agencies a Temporary ReprieveUpdatesIn June of this year, the California legislature passed two bills designed to address the state’s budget crisis. The bills addressed redevelopment agencies, which are local agencies created to use property tax funds to redevelop blighted areas. ABX1 26 suspended most redevelopment agencies and provided for their gradual dissolution. It barred redevelopment agencies from taking action other than paying existing debts, performing existing contractual obligations and setting aside reserves required for bonds.
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07.18.2011California Supreme Court Applies "Common Sense" to Plastic Bag Ban and Clarifies CEQA Standing RulesUpdatesSave the Plastic Bag Coalition v. City of Manhattan Beach
Presentations
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02.07.202434th Annual Land Use & Development Law Lunch Briefing and WebinarSpeaking EngagementsSeminar and WebinarA 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.
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01.31.202333rd Annual Land Use & Development Law Lunch Briefing and WebinarSpeaking EngagementsSeminar and WebinarA 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.
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01.19.202232nd Annual Land Use and Development Law BriefingWebinarsA 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.
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01.26.202131st Annual Land Use Land Use & Development Law BriefingWebinarsA 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.
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01.22.2020; 01.30.2020; 02.04.2020; 02.06.202030th Annual Land Use & Development Law Lunch BriefingSeminarsA 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.
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01.15.2019; 01.17.2019; 01.23.2019; 01.29.2019.29th Annual Land Use & Development Law Lunch BriefingSeminars2018 has been another eventful year in the evolution of land use and planning law in California.
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06.13.2018The Future of Offshore Energy (Part 2): Technical Solutions and Anticipated ImpactsSpeaking EngagementsVERGE Hawaii / Honolulu, HI
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06.07.2018Navigating The Course Through The U.S. Government in Offshore WindSpeaking EngagementsU.S. Offshore Wind Conference and Exhibition / Boston, MA
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04.27.2018Give Me ShelterSpeaking EngagementsModerator
Perkins Coie / San Francisco, CAA discussion with California State Senator Scott Wiener on what now after SB827 and how to solve the California housing crisis. -
03.27.2018Pure Water Monterey Environmental and Biological Permitting AdventuresSpeaking EngagementsWateReuse Conference / Monterey, CA
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02.12.2018E-commerce - the Convergence of Retail and Industrial UsesSpeaking EngagementsLand Use & Zoning Presentation / Seattle, WA
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01.18.2018; 01.24.2018; 01.25.2018; 01.30.2018.28th Annual Land Use & Development BriefingSeminars2017 has been another eventful year in the development of land use and planning law in California.
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11.03.2017Energy and Climate Policy in the Trump Era: Federal Perspectives PanelSpeaking EngagementsNinth Annual San Diego Climate & Energy Law Symposium / San Diego, CA
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11.02.2017Federal and State Case Law UpdateSpeaking EngagementsElectric Power and Project Development in California / San Francisco, CA
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09.13.2017Marine Renewable Energy: Looking West for EnergySpeaking EngagementsPacific Ocean Energy Trust, Ocean Renewable Energy Conference XII / Portland, OR
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05.23.2017The Career Trajectory of Women in Law: Paths and OpportunitiesSpeaking Engagements
Panelist:
Women Leadership in Law / Beverly Hills, CA -
05.20.2017Connected Actions and Cumulative EffectsSpeaking Engagements
AEP Conference / San Francisco, CA
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05.08.2017 - 05.09.2017NEPA Legal, Practice & Policy DevelopmentsSpeaking Engagements11th Annual NEPA Conference / San Francisco, CA
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01.18.2017; 01.25.2017; 01.26.2017; 02.07.2017; 02.22.2017.27th Annual Land Use & Development Law BriefingSeminars2016 has been another dynamic year in the development of land use and planning law in California.
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08.04.2017The Housing Crunch in Desirable Cities - Planning Alternatives and Legal ConsequencesSpeaking EngagementsAmerican Bar Association Annual Meeting / San Francisco, CA
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06.22.2016Is Near-Shore Ocean Technology the Next Wave in Clean EnergySpeaking Engagements2016 VERGE Hawaii / Honolulu, HI
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01.21.2016; 01.26.2016; 02.02.2016; 02.22.2016;26th Annual Land Use & Development Law BriefingSeminars2015 has been a year of significant developments in land use, CEQA and environmental and resources law.
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201525th Annual Land Use & Development Law Briefing MaterialsSeminars
The 25th Annual Land Use & Development Law Breakfast Briefing presentation focused on 2014 developments and trends in land use, affordable housing, school facilities financing, CEQA, real estate and environmental and resources Law. Download PDF version of presentation materials
Blog
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Supreme Court Rules Legislatively Adopted Exactions Not Exempt From Nollan/Dolan Scrutiny
In a dispute over a traffic impact fee imposed on a residential building permit by El Dorado County, the U.S. Supreme Court unanimously rejected the long-standing position of California and other state courts that the Takings Clause of the U.S. Constitution applies differently when permit conditions are imposed legislatively rather than administratively. Sheetz v. County... Continue Reading…
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The court of appeal held that a City Council resolution approving a development agreement that included policy decisions regarding development of a public park was a legislative act subject to referendum. Move Eden Housing v. City of Livermore, 100 Cal. App. 5th 263 (2024). In 2018, the City of Livermore and Eden Housing entered into... Continue Reading…
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Petitioner’s challenge to a Specific Plan, which was filed before that plan was adopted, was barred as premature, and its belated attempt to amend its petition after the Specific Plan had been adopted was barred by the statute of limitations. Fix the City, Inc. v. City of Los Angeles 100 Cal. App. 5th 363 (2024).... Continue Reading…
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Agricultural Conservation Easements Partially Mitigate the Loss of Agricultural Land
After deciding in a prior appeal in the same case that offsite agricultural conservation easements (ACEs) were not effective at reducing a project’s conversion of agricultural land, the Fifth Appellate District held that ACEs can mitigate such impacts. V Lions Farming, LLC v. County of Kern, Nos. F084763, F085102, F085220 (5th Dist., March 7, 2024).... Continue Reading…