As if it didn’t have enough to do, the Federal Aviation Administration (“FAA”) is now proposing to expand the definition of “Aeronautical Activities”, which currently includes “any activity that involves, makes possible, is required for the operation of an aircraft/vehicle, or that contributes to, is required for, the safety of such operations” FAA Order 5190.6B

Since our February 1, 2023 blog, concerning the California Court of Appeals tentative decision in Make UC a Good Neighbor vs. Regents of Univ. of California, et al., that Court has taken the definitive step of confirming its tentative decision, on the critical ground that “UC Berkeley failed to assess potential noise impacts from

Public concerns have been running amuck on the internet regarding the recent tentative decision by the California Court of Appeal for the First Appellate District in Make UC a Good Neighbor v. Regents of the University of California, et.al., Case No. A165451 (Trial Court Case No. RG21110142). The case involves a challenge under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) to the adequacy of the Environmental Impact Report (“EIR”) for the Long Range Development Plan for the former “Peoples’ Park” in Berkeley, an historical icon to the student war  protests of the 1960s. A portion of the Long Range Plan involves construction of more than a thousand units of residential housing for university students, and acknowledges potential increases in population ancillary to the student body such as faculty and staff who will not receive access to the housing, but will be forced to compete with local residents for existing housing supplies.

The public’s concern appears to arise not merely from the project itself, but the Court’s purported expansion of the scope of CEQA to incorporate not merely the physical impacts of the project itself (e.g., traffic, emissions, etc.), but also impacts caused later by the users and/or occupants of the development, in this case the students, including “social noise” from late night parties and pedestrians.Continue Reading Public Concern Grows Over Broad-Based CEQA Decision

During the week of August 19, 2019, both the Appellate and Supreme Courts of California issued decisive opinions clarifying the parameters of agency action subject to environmental review under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq., (“CEQA”). The courts were responding to repeated efforts by public entities to circumvent their CEQA obligations by redefining the actions that constitute a “project” subject to analysis under CEQA. Those public entities which have attempted to so minimize their exposure under CEQA include several airports in California, most notably, Los Angeles International Airport (“LAX”). In its environmental review of the Specific Plan Amendment Study of several years ago, LAX relied on precisely the Project Definition soundly rejected by the California courts as set forth below.
Continue Reading California Courts Close Loopholes in Definition of “Project” Under CEQA

Thirty-one airports throughout the State of California, including Los Angeles International Airport and San Bernardino International Airport, have been made the subject of new investigative orders pursuant to California Water Code § 13267. These airports, with training/fire response facilities will be required to prepare and submit work plans for review and approval by the State

On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).

More specifically, CARB’s failure to submit constitutes a violation of the general provisions of the Clean Air Act (“CAA”), § 110(a)(2)(D)(i)(I) which requires that CARB submit a SIP revision to comply with the implementation, maintenance and enforcement provisions related to new or revised NAAQS within three years after the promulgation of the revised NAAQS; and that such plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS (“Prong 1”), or interference with maintenance of the NAAQS (“Prong 2”), in any other state.  The final rule implementing the “Finding of Failure” transfers to EPA the obligation to promulgate a Federal Implementation Plan (“FIP”) to address the interstate transport requirements, within 24 months.
 
The issue has come to prominence as a result of the federal/state partnership that is the foundation of the CAA, see 42 U.S.C. § 7401(a)(3) and (4), giving EPA the power of approval over locally developed plans.  

Continue Reading California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government

California’s unprecedented drought provided the impetus in Sacramento in the closing weeks of the Legislature’s 2013-14 session for the passage of sweeping new regulations governing groundwater. The new rules, which Gov. Brown likely will sign, amount to a broad re-write of California’s existing groundwater law, the first substantial changes to the law in approximately one hundred years. And with the new rules comes significant new authority for a state agency, drawing upon potentially billions of dollars in new fees, to implement new groundwater management plans over the objections of local water authorities. 

Orange County’s groundwater management system, accomplished across numerous governmental jurisdictions and which has, so far, spared Orange County from the full effects of the drought, is held up as the model for the new state scheme. But the legislation goes well beyond anything done in Orange County. Major changes are coming in the way California regulates and allocates its ground water, and in the way our citizens pay for that water.

Continue Reading Water’s For Fighting Over

Taking its queue from the legislature (see Senate Bill 743 [Steinberg 2013]), the California Governor’s Office of Planning and Research (“OPR”) published, on August 6, 2014, a preliminary discussion draft of revisions to OPR’s California Environmental Quality Act (“CEQA”) Guidelines, which serve as regulations implementing CEQA, Cal. Pub. Res. Code § 21000, et seq.,  “Updating Transportation Impacts Analysis in the CEQA Guidelines” (“Update”).  The Update revises existing CEQA Guidelines § 15064.3 to comport with Cal. Pub. Res. Code § 21099(b)(1) which establishes new criteria for determining the environmental significance of surface traffic impacts such as traffic delay and increased emissions resulting from a proposed project.  The purpose of both the amended statute and the Update is to shift the focus of the CEQA analysis of significance from “driver delay” to “reduction of greenhouse gas emissions, creation of multi-modal  networks and promotion of mixed land uses.”  Update, page 3.  

 
The change is effected through a change in the metric for determining environmental significance Level of Service (“LOS”), which measures delay at intersections, to vehicle miles traveled (“VMT”), which is a measure of the number of automobile trips resulting from the project.  The stated rationale underlying the change is that the use of LOS encourages mitigation aimed at reducing delays by increasing traffic flow, including expanded roadways, construction of more lanes and other automobile traffic facilitation measures; which theoretically leads to “induced demand,” i.e., more capacity at intersections allowing additional cars to use them; and, ultimately, to more air quality and greenhouse gas impacts from those additional cars.  As the story goes, a standard of environmental significance based on VMT will encourage the use of mitigation measures such as increased bicycle paths, accommodations for pedestrians, and other measures that will reduce automobile ridership in the long term.  The problem is that the theory underlying the Update is made up more of holes than of cheese. 
 

Continue Reading California Changes the Test of Significance for Traffic Impacts Under CEQA

As far back as 1946 when the California Legislature first passed legislation enabling the establishment of redevelopment agencies, the concept of restoring aging urban neighborhoods has played a key role in the character and identity of California cities. This role, which was enhanced by government money during the era of “urban renewal” in the 1960s, has now been effectively obviated by a ruling of the California Supreme Court which, on Thursday, December 27, 2011, held in favor of a recent State law abolishing the State’s 400 local redevelopment agencies. The Court also ruled against a compromise measure which would have allowed the redevelopment agencies to continue in operation with the sharing of their revenues with the State General Fund. Localities are now faced with the quandary of how to make up the shortfall. Several new ideas have been advanced at both the State and local levels.Continue Reading Happy New Year Except for California Redevelopment Agencies

The recently published Southern California Association of Governments (“SCAG”) Draft Regional Transportation Plan 2012-2035, Sustainable Communities Strategy (“Draft RTP”) is a study in contrasts. The Draft RTP is meant to be a roadmap to “increasing mobility for the region’s residents and visitors.” Draft RTP, p. 1. Its “vision” purportedly “encompasses three principles that collectively work as the key to our region’s future: mobility, economy and sustainability.” Draft RTP, p. 1. SCAG’s jurisdiction falls largely into compartments: (1) surface transportation such as roadways and rail; and (2) aviation. SCAG has funding authority over the former, but none over the latter.

The purpose of the Draft RTP is to portray transportation from a broader regional, rather than merely local, perspective. On the one hand, the Draft RTP’s analysis of surface transportation growth estimates, trends and proposed policies for the Southern California Region to the year 2035 contains relatively sophisticated and substantially complete analysis and projections that meet its goals. On the other hand, the Draft RTP’s analysis of aviation trends and policies for meeting airport demand is reminiscent of a high school science project.
 Continue Reading SCAG’s Regional Transportation Plan Falls Down Hard on Aviation Policy