Marc R. Bruner Partner

The secretary of the interior issued two Secretarial Orders on April 16, 2021, that provide early indications of the Biden administration’s approach to the environmental review process for infrastructure projects under the National Environmental Policy Act.

President Biden’s Build Back Better initiative includes extensive investment in drinking water, wastewater, and stormwater systems with the hope of upgrading aging infrastructure, making it more resilient in the face of climate change, and addressing historical inequities.

On March 22, 2021, the U.S. Supreme Court denied certiorari in a case that upheld President Obama’s designation under the Antiquities Act of the Northeast Canyons and Seamounts Marine National Monument in the northern Atlantic Ocean

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions.

The U.S. Army Corps of Engineers published in the Federal Register changes to its Clean Water Act Nationwide Permits (NWPs).

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service on December 16, 2020, jointly adopted a final regulation providing a one-sentence definition for the term “habitat” under the Endangered Species Act.

The U.S. Environmental Protection Agency (EPA) recently adopted a final regulation governing the issuance of guidance documents, which the agency historically has used to provide direction to agency staff, other governmental agencies, the regulated community, and interested stakeholders on a wide variety of technical and regulatory matters under its purview.

The U.S. Supreme Court delivered near-term relief to project developers on June 6, reinstating one of the U.S. Army Corps of Engineers’ key nationwide Clean Water Act permits. 

Pressing ahead on his efforts to reduce delays in federal approvals necessary for major infrastructure projects, President Donald Trump on June 4 called for more streamlining in another executive order, Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.

The U.S. Environmental Protection Agency issued a final rule on June 1, 2020, intended to limit the ability of states and tribes to block or delay projects requiring a water quality certification under Section 401 of the Clean Water Act.

Governor 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.

Uncertainty has long reigned over the reach of the federal Clean Water Act, which applies to “navigable waters,” defined by statute only as “waters of the United States.”

Concluding their administrative efforts to narrow federal jurisdiction under the Clean Water Act, the U.S. Environmental Protection Agency and Army Corps of Engineers on Jan. 23 released their final regulations interpreting the term “waters of the United States."

The Clean Water Act applies by its terms to “navigable waters,” which the act defines merely as “waters of the United States.”

Continuing its efforts to expedite federal approvals for projects subject to the National Environmental Policy Act, or NEPA, the White House Council on Environmental Quality, or CEQ, published proposed revisions to its NEPA-implementing regulations on Jan. 10. The proposed rule, released a week after NEPA’s 50th birthday, would comprise the first substantial revisions to the CEQ’s agencywide regulations since 1978.

Taking the next step in its efforts to streamline the environmental review process for projects under federal jurisdiction, the White House Council on Environmental Quality (CEQ) published proposed regulations on January 10 that would revamp the rules implementing the National Environmental Policy Act.

The Ninth Circuit Court of Appeals has upheld the approval of a utility-scale wind facility in California, rejecting claims that the Bureau of Indian Affairs violated the National Environmental Policy Act and the Bald and Golden Eagle Protection Act in approving the project.

A new final regulation issued on September 12, 2019 by the Environmental Protection Agency and the Army Corps of Engineers repeals the Obama administration’s 2015 “Clean Water Rule,” but does little to clear up the longstanding confusion over the scope of federal authority and jurisdiction under the Clean Water Act.

A decision by the U.S. District Court for the Southern District of Georgia issued on August 21, 2019, highlights the continuing confusion over the definition of “waters of the United States” under the Clean Water Act.

The U.S. Court of Appeals for the D.C. Circuit has issued an important decision that narrowly interprets the types of governmental decisions that may be challenged in court as “final agency action.”

The Environmental Protection Agency issued a 163-page proposed rule on August 9, 2019, to clarify the substantive and procedural requirements for water quality certifications under Section 401 of the Clean Water Act.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a set of three new final rules on August 12, 2019, that substantially revise the regulations implementing the Endangered Species Act.

The Environmental Protection Agency issued a final rule June 26, 2019, revising the agency’s Freedom of Information Act regulations.

The 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.

In 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.

The 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.

The 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.

In 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.

The 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.

In 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.

In 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.

In 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.

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.

The 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.

The 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.

On February 11, 2016, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service jointly published final regulations and a final policy addressing critical habitat under the Endangered Species Act.

Under 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.

The 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.

According 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.

In 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.

The 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.

On 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.

Parties 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.

In 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.

The California Supreme Court’s decision in California Redevelopment Association (CRA) v. Matosantos Commercial Corporation (No. S194861) requires redevelopment agencies (RDAs) to wind down immediately.

The 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.

In 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.

California'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.

The 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.

In 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.

2017 has been another eventful year in the development of land use and planning law in California.

2015 has been a year of significant developments in land use, CEQA and environmental and resources law.

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

A 90-minute multi-panelist presentation on 2014 developments and trends in Land Use, CEQA, Real Estate, and Environmental and Resources Law.

A 90-minute multi-panelist presentation on 2013 developments and trends in Land Use, CEQA, Real Estate, and Environmental and Energy Law.

A 90-minute multi-panelist presentation on 2012 developments and trends in Land Use, CEQA, Real Estate, and Environmental and Resources Law.