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Following in the footsteps of his colleagues, on January 6, 2012, Assemblyman Mike Feuer introduced legislation that would give rail projects the same type of relief from California Environmental Quality Act (“CEQA”) requirements that were received in the last session by the proposed NFL stadium in Los Angeles, and some renewable energy projects. Notably, the CEQA amendments enacted for the NFL stadium include a very short time frame of 175 days for resolution of CEQA issues. While current CEQA litigation may extend to two years or more, depending on the complexity of the project and workload of the court, it stands to reason that issues surrounding local projects such as the stadium, with local traffic, noise and air quality impacts, may potentially be resolved within the 175 day timeframe. Rail projects are of far different scope, geographic extent, and are subject to a different set of laws.Continue Reading Legislature Asked to Grant CEQA Relief for Rail Projects

In National Association of Homebuilders, et al. v. Environmental Protection Agency, et al., 2011 W.L. 6118589 (December 9, 2011) (“Homebuilders”) the D.C. Circuit Court of Appeals has raised the bar for Article III standing in actions involving private petitioners or appellants. While recent years have seen a loosening of the standing requirements for states (see, e.g., Massachusetts v. EPA, 549 U.S. 497, 518 (2007) [“This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, and all the earth and air within its domain”], and municipalities (see, e.g., City of Olmsted Falls v. FAA, 292 F.3d 261, 268 (2002) [“In this Circuit we have found standing for a city suing an arm of the Federal government when a harm to the City itself has been alleged” [emphasis added]], Homebuilders represents an escalation of the existing standing restrictions for individuals and organizations that represent them.

Article III of the United States Constitution “limits Federal Court jurisdiction to ‘cases’ and ‘controversies.’ Those two words confine ‘the business of Federal Courts to questions represented in an adversary context and in a forum historically viewed as capable of resolution through the judicial process.’” Massachusetts, supra, 549 U.S. at 515, quoting Flast v. Cohen, 392 U.S. 83, 95 (1968). In order to establish Article III standing, “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts, supra, 549 U.S. at 517. In Homebuilders, the National Association of Homebuilders (“NAHB”), which represents a variety of individual developers, brought suit challenging the determination by the United States Environmental Protection Agency (“EPA”) and United States Army Corps of Engineers (“ACOE”) that certain reaches of the Santa Cruz River in Arizona constitute “Traditional Navigable Waters” (“TNW”), thus subjecting those reaches to Federal regulation. The Court in Homebuilders rejected NAHB’s attempts to fit under the umbrellas of organizational, representational or procedural standing on the following grounds.
 Continue Reading The D.C. Circuit Court of Appeals Reconfirms the Bar of Standing in the Federal Courts

In National Resources Defense Council v. Southern California Air Quality Management District, 2011 W.L. 2557246 (C.A. 9 (Cal.)), the National Resources Defense Council (“NRDC”) sought to call the Southern California Air Quality Management District (“SCAQMD”) to account for purportedly using invalid “offsets” for emissions increases resulting from new stationary sources. A panel of the Federal Ninth Circuit Court of Appeals found, however, that: (1) the District Court’s decision refusing to hold SCAQMD to a validity standard for its internal “offsets” for emissions increases was correct because such a validity standard is not required by the Clean Air Act (“CAA”), 42 U.S.C. section 7503(c) (“Section 173(c)”); and (2) ironically, the District Court lacked jurisdiction to reach that decision where original jurisdiction lies in the Courts of Appeals pursuant to CAA section 7607.Continue Reading The National Resources Defense Council Challenge to the Southern California Air Quality Management District Administration of Emissions Credits Rejected by Ninth Circuit Court of Appeals

The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.

A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
 Continue Reading FAA Moves to Insulate Itself from Challenges to Clean Air Act Compliance in Airspace Redesigns

A Federal Court has recently thrown open the door to potential civil challenges to both private and governmental sources of greenhouse gas emissions, based on the Federal common law of nuisance. For those who believe the Environmental Protection Agency (EPA) has acted too slowly in promulgating greenhouse gas regulation, civil actions are now possible at least in the Second Circuit. However, the Supreme Court may now scrutinize the Second Circuit’s decision. Based on a recent Fourth Circuit decision on a similar issue, the “Nine” may be tempted to follow in Moses’ footsteps and pare down the Second Circuit decision to apply only to greenhouse gas emissions from Federal projects.

Continue Reading Preemption Rears its Head Again in Federal Common Law and Nuisance Climate Change Challenge

After all of the debate was over, both on the Senate floor and in the press, it boiled down to a party line vote – again, with six Democrats crossing over to vote for the other side. As Jim Abrams of The Associated Press reported:

The defeated resolution would have denied the Environmental Protection Agency the authority to move ahead with [its] rules [requiring permits for greenhouse gas emissions (“the tailoring rule”)], crafted under the federal Clean Air Act. With President Barack Obama’s broader clean energy legislation struggling to gain a foothold in the Senate, the vote took on greater significance as a signal of where lawmakers stand on dealing with climate change.
 

Continue Reading Senate Narrowly Turns Down Sen. Murkowski’s (R-AK) Attempt to Overrule EPA’s Greenhouse Gas Rules

Much has been made recently of the studies currently underway in areas around Boston Logan and Santa Monica Airports, aimed at determining the health impacts of those airports on surrounding populations.  While the aim is noble, and the information to be gained useful in structuring individual living choices, the result will have little or no impact on the operation of those airports. 

 
Continue Reading Santa Monica and Logan Airport Health Studies are Targeting the Wrong Problem

On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA’s General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.
Continue Reading EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

UPDATED May 5, 2010

The Federal Aviation Administration (FAA) announced in the April 23, 2010 Federal Register that it will release the Draft General Conformity Determination for the Preferred Alternative (Alternative A) for the Philadelphia International Airport (PHL) Capacity Enhancement Program (CEP) for public comment on April 27, 2010.  Ordinarily, the public has 30 days…