No. BS 121650, BS 12180 (2nd App. Dist.)

May 10, 2012

A state Conservancy sought approval from the city of Malibu for an amendment to the Local Coastal Program (LCP) that concerned trail access and camping issues on four non-contiguous properties. Instead of that, the city approved its own proposed amendments, which the California Coastal Commission (CCC) certified.

Unhappy with the results, the Conservancy asked the CCC to “override” Malibu with the Conservancy’s own amendments. The CCC agreed it had authority under the California Coastal Act (CCA) to override the city based upon CCA section 30515. Normally, the CCC only states whether a local agency’s LCP does or does not conform with the CCA and certifies it if it does. The Legislature made clear that local agencies should primarily address local land use concerns. Section 30515 of the CCA provides a limited opportunity for “Any person authorized to undertake a public works project or proposing an energy facility development” to ask a local agency to amend the LCP or seek an override by the CCC if unsuccessful at the local level. The Conservancy successfully argued that it merely had to be “any person authorized to undertake a public works project” while admitting it was not proposing an actual public works project. The CCC then approved and certified the Conservancy’s amendment.

Malibu sought a Petition for Writ of Mandate in Superior Court, claiming the CCC lacked authority to override the city because the Conservancy had only proposed a plan, not a project. The trial court agreed and ruled against the CCC.

On appeal by the Conservancy, the Court of Appeal affirmed the trial court decision regarding CCC’s lack of authority to override the city. The Court held the language in section 30515, when read as a whole, necessarily required an actual project to be proposed and rejected by a local agency before the override provision applied. The balance of the section also requires the project meet the public needs of an area greater than that encompassed in the LCP that was not anticipated at the time the LCP was certified. This case restricts the CCC assertion of authority in certain circumstances and restores some balance of local land use planning to local agencies.

Prepared by John Reaves

California won temporary reinstatement of its low-carbon fuel standard, which was blocked last year by a federal judge.

The U.S. Court of Appeals in San Francisco yesterday granted a request by California officials to put on hold the Dec. 29 ruling that the standard is unconstitutional while the case is on appeal. The rule was to have taken effect Jan. 1, 2012.

“Today’s decision allows the Air Resources Board to continue implementation and resume enforcement of this important program to reduce greenhouse gas emissions,” California Air Resources Board Executive Officer James Goldstene said in an e- mail yesterday. “The Low Carbon Fuel Standard drives investment and innovation, creates new jobs and provides the next generation of clean fuels to all Californians.”

U.S. District Judge Lawrence O’Neill in Fresno, California, ruled Dec. 29 that California’s method of assigning a higher so- called carbon intensity score to ethanol produced in the Midwest, which is otherwise chemically and physically identical to that produced in California, discriminates against interstate commerce. The judge sided with agriculture and oil-industry groups that sued to overturn the standards.

Tom Buis, chief executive officer of Growth Energy, an ethanol trade group that opposed the rules, said he hadn’t yet reviewed the ruling and couldn’t comment.

December Delivery

California carbon allowance futures for December delivery slipped 75 cents to $14.75 per ton yesterday, according to data from CME Group Inc.’s Green Exchange in New York.

Bids for California carbon permit forwards cleared by IntercontinentalExchange Inc. closed at $15.25 per ton yesterday, down 75 cents from April 20, Samantha Katz, managing director of carbon broker BGC Environmental Brokerage Services, said in a telephone interview from New York.

The judge’s ruling may boost carbon prices today as the market speculates on whether California’s carbon cap-and-trade program would survive a similar court challenge, said Jon Costantino, senior climate change adviser for law firm Manatt, Phelps & Phillips LLP in Los Angeles.

“Any court victory (even one that may only be temporary) seems to lift the long-term view on price,” Costantino, executive director of the Association of Carbon Market Participants inSacramento, California, said in an e-mail.

Lawyers for the state had argued that California would be irreparably harmed by increased greenhouse-gas emissions if barred from implementing the standard, which is aimed at encouraging the use of cleaner low-carbon fuels.

The lower-court case is Rocky Mountain Farmers Union v. Goldstene, 09-2234, U.S. District Court, Eastern District of California (Fresno).

To contact the reporters on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net; Lynn Doan in San Francisco at ldoan6@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

http://environment.yale.edu/climate/publications/extreme-weather-climate-preparedness/April 17, 2012

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Highlights:

• 82 percent of Americans report that they personally experienced one or more types of extreme weather or a natural disaster in the past year;
• 35 percent of all Americans report that they were personally harmed either a great deal or a moderate amount by one or more of these extreme weather events in the past year;
• Over the past several years, Americans say the weather in the U.S. has been getting worse – rather than better – by a margin of over 2 to 1 (52% vs. 22%);
• A large majority of Americans believe that global warming made several high profile extreme weather events worse, including the unusually warm winter of December 2011 and January 2012 (72%), record high summer temperatures in the U.S. in 2011 (70%), the drought in Texas and Oklahoma in 2011 (69%), record snowfall in the U.S. in 2010 and 2011 (61%), the Mississippi River floods in the spring of 2011 (63%), and Hurricane Irene (59%);
• Only 36 percent of Americans have a disaster emergency plan that all members of their family know about or an emergency supply kit in their home (37%).

The New York Times article on this report: In Poll, Many Link Weather Extemes to Climate Change.

Extreme Weather, Climate & Preparedness in the American Mind reports results from a nationally representative survey of 1,008 American adults, aged 18 and older, fielded March 12 through March 30, 2012, using the online research panel of Knowledge Networks. The report includes measures of public observations and experiences of weather, opinions about the links between global warming and particular extreme weather events, levels of household preparedness, and use of local weather forecasts.

2012 DJDAR 4655 (April 12, 2012)

Lyon & Associates involved a claim by the buyer of a house against the broker acting as a dual agent for both buyer and seller in the context of a motion for summary judgment. Henley, the buyer, sued Lyon, his broker (which was acting as dual agent), for breach of contract for allegedly breaching duties as broker for the buyer.  Henley alleged Lyon failed to perform a reasonable inspection and disclose material facts concerning construction defects. Henley sued roughly three years after purchasing the property.

Lyon defended itself by claiming Henley had failed to file suit within the two-year statute of limitation found in Civil Code section 2079. 4. The Court of Appeal, however, found such section only applied to a breach by the seller’s broker to the buyer under section 2079 (the codified Easton rule). Here, Henley sued Lyon in its role as buyer’s broker.

The Court then considered whether the statutory four-year statute of limitation for contract actions applied or whether the more restrictive two-year limitation contained in the purchase contract applied. Because Henley alleged and presented some supporting (yet disputed) facts indicating Lyon may have concealed information about the defects, the Court reasoned that the “discovery rule” should apply in this case (meaning the statute of limitation only starts to run after the party reasonably should have discovered the facts essential to his claim). Such rule is regularly applied in tort cases but has limited application in contract cases where parties can contractually agree to shorten a statute of limitation if it is not unreasonable or does not reflect imposition or undue advantage.

Because Lyon was sued in its capacity as the Henley’s broker, in which a fiduciary duty was owed, and because the allegations and some evidence supported Henley’s claim that Lyon’s malfeasance contributed to the delay in discovering the injury, the Court concluded the discovery rule should apply in this case. By applying the discovery rule here, Henley’s suit was within the two-year contractual limitation in the contract and timely. The Court reversed the trial court ruling and sent Henley back to the trial court.

March 21, 2012

U.S. Supreme Court

No. 10-1062; 2012 DJDAR 3737

Petitioners owned property in Idaho separated by several built properties from a lake. They filled part of their lot with fill and dirt in anticipation of building their home. The US EPA issued a compliance order, claiming they had discharged a pollutant into wetlands adjacent to navigable waters, thus violating the Clean Water Act (CWA). The EPA ordered petitioners to restore their property or face high daily penalties.

Petitioners claimed they were not subject to the CWA and sought a hearing from the EPA which the EPA refused. Petitioners then filed an action in federal court, claiming the order was arbitrary and capricious and seeking declaratory and injunctive relief. The district court and Ninth Circuit both ruled against petitioners, holding the Administrative Procedure Act (APA) only allows review of a final decision, thus precluding pre-enforcement judicial review of compliance orders. Under this scenario, petitioners would have to wait for the EPA to sue them before they could obtain judicial review.

The US Supreme Court (Justice Scalia writing the majority opinion) reversed, holding the EPA decision marked the consummation of the agency decision-making process and that the findings in the order were not subject to further agency review. The Court seemed intolerant of the EPA “strong-arming” regulated parties into voluntary compliance without an opportunity for judicial review. Thus, petitioners could challenge the EPA order before complying with the order. The Court did not address whether petitioners could also challenge the terms of the order, as noted by the concurring opinion of Justice Ginsburg. (There were two concurring votes and no dissents.)

Prepared by John Reaves

2012 DJDAR 3713 (First App. Distr., Div. Four)

March 20, 2012

Petitioner environmental group challenged the EIR prepared and approved by the Marin County Environmental Health Services (EHS) in conjunction with EHS’ authorization of a revision to a permit to Redwood Landfill allowing expansion of a solid waste landfill. Petitioner sued, claiming a right to appeal the decision to the Marin County Board of Supervisors. The trial court agreed, but the Court of Appeal reversed.

The Court of Appeal found the EHS was the authorized local enforcement agency for the state (CalRecycle) under the Integrated Waste Management Act. EHS was the lead agency for purposes of the CEQA process and issuing the permit. The Waste Act allows a member of the public to request a hearing by a hearing panel or officer appointed by the local “governing body” to consider claims the agency (here, EHS) failed to follow the law.

Petitioner interpreted the “governing body” to mean the Marin County Board of Supervisors. The Court of Appeal disagreed, finding the Waste Act was permissive and would have allowed the Board to appoint a panel or officer, but the Board was not required to do so.

More importantly, the Board of Supervisors had no authority over the landfill permit. CEQA Guidelines section 21151 state that if an EIR is certified by a non-elected decision-making body, such as a planning board, then a certification may be appealed to the agency’s elected decision-making body. The Court concluded that simply did not apply to the present case because the Board of Supervisors did not govern over EHS or this permit process.

The matter was remanded to the trial court to review the EIR.

Prepared by John Reaves

2012 DJDAR 2123

A131254
Size Matters!

The trial court ruled the City of Berkeley’s categorical exemption under CEQA and approval of a permit to construct a large single-family residence were legally proper.
The Court of Appeal disagreed, holding the categorical exemption is not appropriate if there are “unusual circumstances” and a fair argument can be made that significant environmental impacts could occur, even if there is contrary evidence of such. In particular, the Court found the size of the proposed residence, 6,478 square-foot house with 3,394 square-foot 10-car garage on a hillside, was “unusual” relative to typical projects under that exemption,  even if only slightly larger than some other homes in the immediate vicinity. Also, the Court found the possibility, supported by an expert’s submission, that a large amount of grading and foundational support would be required, and the possibility of lurching in an earthquake zone, supported a fair argument that there could be significant environmental impacts. The Court reversed the decision.

The Ninth Circuit held the U.S. Forest Service (USFS) failed to comply with National Environmental Policy Act (NEPA) when it failed to discuss the environmental impacts on fish of a proposed Sierra Nevada Forest Plan.

Congress commissioned a study which concluded in 1996 that the Sierra Nevada environment had been severely degraded and that aquatic/riparian  habitats were the most altered and impaired. The USFS had prepared an Environmental Impact Statement (EIS) in 2001 for a forest plan which included extensive discussion of potential impacts on fish and amphibians.

After a change in the Administration (from Clinton to Bush), the USFS then pursued and modified one of the alternatives from the 2001 EIS, which it assessed in a new 2004 EIS. The new proposal greatly increased logging, permitted burning near streams, allowed greater construction of new roads, and reduced restrictions on cattle grazing. The USFS, however, failed to discuss any impacts to fish, much less impacts caused by the specific new changes to the forest plan, despite a Washington staff letter expressing an opinion of such necessity.

The Court of  Appeal held NEPA requires agencies to take a “hard look” at environmental consequences, which the USFS failed to do here with regard to fish and amphibians and which was “reasonably possible” to do.

The Court of Appeal affirmed the trial court ruling that a worker, who claimed to have suffered pulmonary fibrosis as a result of exposure to toxic fumes and dust during a manufacturing process, could not sue suppliers of steel, aluminum, and other raw materials.

The Court reviewed the Component Parts Doctrine as set forth in the Restatement Third of Torts. The doctrine allows liability of a supplier which provides a defective component, or substantially participates in the integration of the component into the design of the product, which causes the product to be defective, and causes harm.

The Court then reviewed the 1998 Artiglio case factors in which that California Court of Appeal described circumstances where a supplier would not be liable to the ultimate consumer (the Restatement Third was just in draft form then): the component is not inherently defective, the materials are sold to a sophisticated buyer, the material is substantially changed during the manufacturing process, and the supplier has a limited role in developing and designing the end product.

The Court then distinguished the present case from those which subjected suppliers of asbestos to liability because asbestos is inherently dangerous, both before and after integration into the product. The Court found this case more like those where kerosene, sulphuric acid, silicone, and the like, were used, and where no liability was found because the supplier was in no position to oversee how its product was used or what it might be compounded with. Also, those components were not inherently defective.

As a matter of public policy, it would be overly burdensome and inequitable for a supplier to have to assemble a team of experts to assess how its components would be handled by a manufacturer which could result in many different end-products. The manufacturer is in the best position to do so.

The Component Parts Doctrine applies to negligence as well as strict liability. The result here was that the suppliers owed no duty to the worker, and the case was dismissed.

Reprinted from Bloomberg BNA

LOS ANGELES—California air quality officials Jan. 27 adopted new standards requiring automobile manufacturers, over the next 13 years, to reduce ozone-forming emissions from cars and light-duty trucks by 75 percent from 2014 levels and put 1.4 million plug-in hybrids, battery electric, and fuel cell vehicles on the road.

Approved 9-0 by the California Air Resources Board, the regulatory package includes a rule to phase in stricter fleet average standards for 2015-2025 model year cars and light-duty trucks to further reduce nitrogen oxide and hydrocarbon emissions, increase engine durability requirements from 120,000 miles to 150,000 miles, and impose new particulate emissions on gasoline cars.

A second rule puts in place a new round of greenhouse gas emissions standards for 2017-2025 model year cars and light-duty trucks. CARB’s new regulations set a 166 gram of carbon dioxide equivalent per mile limit, which the agency said will curb greenhouse gases 4.6 percent a year, or 34 percent from 2016 to 2025.

The new regulations ushered in what appears to be a new era of cooperation between automakers and the agency, one rooted in the negotiations that led to the agreement on nationwide greenhouse gas standards for cars and stricter fuel economy standards finalized by the Obama administration in 2010 (62 DEN A-7, 4/2/10).

The regulatory package, collectively called the Advanced Clean Cars Program, still must be approved by the California Office of Administrative Law and the Environmental Protection Agency.

Automakers Support Rules

Automakers testifying at the public hearing that preceded the board’s vote voiced strong support for the rules even though they called on CARB to tweak various provisions in the regulations.

Generally, the industry urged CARB to continue ongoing efforts to harmonize the state’s testing and certification requirements with those of the Environmental Protection Agency.

CARB Deputy Executive Officer Tom Cackette told Bloomberg BNA the two agencies are close in achieving that goal.

“The level of consensus on the importance of the program was the highest we’ve ever seen,” CARB Chairman Mary D. Nichols said in a news conference following the vote.

Environmental and public health advocates also voiced strong support for the rule package and encouraged CARB to closely monitor automakers’ compliance.

The Advanced Clean Car Program “represents a new chapter for clean cars in California and the nation as a whole,” Nichols said “It’s going to be an exciting time in the next few years as we see manufacturers roll out these new cars.”

Groups Praise Program

A coalition of environmental, consumer groups, citizens, and public health groups called the California Clean Cars Campaign praised passage of the rules.

“The new standards will save consumers money, cut dangerous air pollution, and support the creation of new jobs and investment in the fast-growing clean energy economy,” the group said in written statement.

In his testimony, Jack Gilles of the Consumer Federation of America cited surveys from Consumer Reports showing broad support for California regulations that reduce greenhouse gases and increase fuel economy.

“Consumers understand the benefits and have consistently voiced support of California’s leadership on clean car standards,” Gilles said. “In fact, CFA’s latest poll found that more than 70 percent of Americans support states being allowed to continue setting tailpipe emission standards that, as a result, increase fuel economy for motor vehicles.”

Greenhouse Gas Rule

CARB will amend the greenhouse gas emissions rule to allow automakers compliant with federal standards being promulgated by the Obama administration to meet the state’s requirements.

California’s greenhouse gas rules rely on off-the-shelf technologies, including variable valve controls, direct injection, turbochargers, cylinder deactivation, engine stop-start, low-emitting refrigerants for air conditioning systems, and improvements in transmissions.

Nichols said the final federal standards must be consistent with those proposed by EPA and the National Highway Traffic Safety Administration, which would translate to an average fleet standard of 54.5 miles per gallon by 2025 (76 Fed. Reg. 74,854; 222 DEN A-7, 11/17/11).

Changes to Zero-Emission Rule

CARB also approved amendments to landmark 1990 zero-emission vehicle rule to ensure that at least 15.4 percent of the cars on the state’s road in 2025 are a mix of advanced technologies.

The changes become more stringent for 2018 model year vehicles and beyond to push for “pure” zero-emission vehicles such as plug-in hybrids, battery electric, and fuel cell vehicles. Specifically, the amendments end the opportunity for automakers to earn ZEV credits for near-zero emission cars such as any of the current generation of gas-electric hybrids and those with clean gasoline engines.

CARB also agreed to continue a “travel” provision allowing automakers to pool sales of zero-emission in other states with similar rules to meet California’s requirement. States so far with zero-emission rules are Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Vermont.

Several automobile manufacturers and environmental groups sought to convince CARB to abandon a provision in the amendments allowing automakers who over-comply with the national greenhouse gas standard to satisfy ZEV requirements between 2018 and 2021. Automakers that make the highest volume of fuel-efficient cars would be able to earn credits to satisfy the ZEV requirements.

Concerns About Over-Compliance Provision

Industry representatives called the provision unfair, and environmental and public interest groups expressed concern that it would result in the introduction of fewer zero-emission vehicles.

CARB’s Cackette told Bloomberg BNA that American Honda Motor Co. Inc. and Hyundai were the two most likely automakers to benefit from the over-compliance provision because both companies produce a large volume of fuel efficient vehicles.

Steve Douglas of the Alliance of Automobile Manufacturers argued that all the companies should be held to standard for investing in zero-emission vehicles.

Individual CARB members were swayed by the concerns raised, but Nichols explained that the provision grew out of the negotiations for the nationwide program and she was unwilling to jeopardize that agreement.

In the end, the board agreed to provide some procedural requirements to the provision requiring automakers that opt for the over-compliance route to submit additional data to ensure the agency’s goals for 2025 would be met.

Clean Fuels Outlet Rule

A measure designed to ensure a hydrogen fueling infrastructure for the growing number of fuel-cell vehicles the state hopes will be introduced drew fire from the oil industry and a threatened lawsuit.

Called the Clean Fuels Outlet rule, the measure would require oil companies to invest in building hydrogen fuel facilities and offer existing gasoline stations incentives to welcome the new type of fuel service.

The Western States Petroleum Association (WSPA) and many small business groups testifying at the hearing challenged CARB’s authority for such a mandate. The industry is working with CARB to negotiate an agreement to pursue public funds for loan guarantees to make such investments.

WSPA President Cathy Reheis-Boyd told Bloomberg BNA that a lawsuit “was highly likely.” Reheis-Boyd said the rule is unconstitutional and violates the Commerce Clause of the U.S. Constitution.

Nichols said she hopes the industry will continue to negotiate with the agency. The clean fuel facilities are necessary for mass production of fuel-cell vehicles, she said.

“The future lies in these advanced vehicles,” Nichols said.

For More Information

The proposed rule package of the California Advanced Clean Cars Program is available athttp://www.arb.ca.gov/board/books/2012/012612/start1.pdf.