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Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
 
Most important in MMSA’s view is the expansion of the airport.  

Continue Reading Land Trade and Airport Expansion Expected to Put Mammoth Mountain on “Must Ski” Map

In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000, et seq., to the 114 mile high-speed passenger rail line between Fresno and Bakersfield, California is preempted in its entirety by federal law.  The Board’s decision is not only surprising in the context of prevailing legal authority, but also potentially important in the context of other modes of transportation.  

The decision is surprising because it went far beyond the scope of the petition filed by the responsible State agency, the California High-Speed Rail Authority (“Authority”).  The Authority asked only that the Board find that injunctive relief as a remedy under CEQA is foreclosed as preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), Pub.L. 104–88, 104th Congress, and is, thus, barred under 49 U.S.C. § 10501(b) which gives the Board jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,” 49 U.S.C. § 10501(b)(2).  The Authority further argued that, as it had completed CEQA review in May 2014, the Board need not address whether CEQA is generally preempted, but need only address whether injunctive relief resulting in a work stoppage is available as a remedy in the lawsuits filed against the Authority.
 
Despite the Authority’s limited petition, the Board expanded its ruling to include a finding that § 10501(b) prevents the states and localities from intruding into matters that are “directly regulated by the Board (e.g., rail carrier rates, services, construction, and abandonment),” Docket, p. 8, and from “imposing requirements that, by their nature, could be used to deny a rail carrier’s ability to conduct rail operations.”  Id.  The Board employs the rationale that “Section 10501(b) [ ] is intended to prevent a patchwork of local regulation from unreasonably interfering with interstate commerce.”  Id.  
 
The Board recognizes, however, that “[n]ot all state and local regulations that affect rail carriers are preempted by § 10501(b).”  Id. at p. 9.  It acknowledges further that “State and local regulation is appropriate where it does not interfere with rail operations,” Id., and that “[l]ocalities retain their reserved police powers to protect the public health and safety so long as their actions do not unreasonably burden interstate commerce.”  Id.  
 
On that basis, and ignoring that “states and towns may exercise their traditional police powers . . . to the extent that the regulations ‘protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions,’” Id. citing Green Mountain v. Vermont, 404 F.3d 638, 643 (2nd Cir. 2005), the Board concluded that CEQA was categorically preempted as a “state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the Board has specifically authorized, thus impinging upon the Board’s exclusive jurisdiction over rail transportation,” Docket, p. 10, citing DesertXpress Enters., LLC-Pet. For Declaratory Order, slip op. at 5.  The Board further found that CEQA lawsuits “can regulate rail transportation just as effectively as a state statute or regulation.”  Id. at 14, citing, inter alia, Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) [explaining that common law suits constitute regulations].  
 
The Board decision, however, appears to be based on two fundamental misconceptions. 
 

Continue Reading The Federal Surface Transportation Board Finds California Environmental Quality Act Preempted as Applied to High-Speed Rail Projects

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

Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions.  See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).  

Earth Justice and Friends of the Earth originally petitioned EPA in 2007, pursuant to CAA Section 231, which directs EPA to study air pollutants from aircraft “to determine (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emissions.”  Section 231(a)(1).  Under subsections (a)(2) and (3), if EPA finds that emissions from aircraft and aircraft engines cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare,” it “shall” propose and issue standards to control such emissions.  In 2010, EPA had still not responded to their 2007 Petition.  
 

Continue Reading EPA Challenged to Issue Endangerment Finding and Rule Governing Greenhouse Gas Emissions from Aircraft Engines

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 

Continue Reading FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

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

The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft.  The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines. 

The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines.  “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.”  42 U.S.C. § 7571(a)(2)(A) and (a)(3).  There are, however, some limits on EPA’s authority.
 Continue Reading Santa Monica Airport Commission’s Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law

The California Court of Appeal last week reversed a lower court decision that would have indefinitely delayed the development by Newhall Land and Farming Company of 21,308 residential units, 629 acres of mixed use development, 67 acres of commercial use, 249 acres of business park, and 1,014 acres of open space in northwestern Los Angeles County over the next 25-30 years (“Project”).  The lower court’s decision had originally granted the Petition for Writ of Mandate brought by, among others, the Center for Biological Diversity (“Respondents”), challenging, among other actions by the California Department of Fish and Wildlife (“DFW”) (“Appellant”), the revised Joint Federal/State Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”) for the Project.

While the Appellate Court’s 112 page decision addressed numerous causes of action brought by Respondents in the trial court, one of the most unique and far reaching was its disposition of Respondents’ claim that the EIS/EIR’s baseline for assessing the cumulative impacts of the Project’s Greenhouse Gas (“GHG”) emissions is a procedural issue properly evaluated under the “failure to proceed in a manner required by law” standard, applicable to procedural actions, and that, employing the correct standard, the EIS/EIR’s analysis was predicated on an illusory baseline.  In a decision that is likely to be adopted in the adjudication of other California Environmental Quality Act (“CEQA”) actions challenging the evolving state and federal GHG standards, the Appellate Court firmly disagreed. 
 Continue Reading Appellate Court Grants Wide Discretion to Newhall Land and Farming Project Proponents in the Determination of the Significance of Greenhouse Gas Emissions Under CEQA

On March 6, 2014, the Environmental Protection Agency (“EPA”) announced the 60-day extension of the comment period for the January 8, 2014 proposed “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” and the February 26, 2014 notice of data availability soliciting comments on the provisions in the Energy Policy Act of 2005.Continue Reading EPA Extends Public Comment Period for “Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units”

On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories. 

This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation.  In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions.  The High Court effectively upheld those rules by refusing to hear the challenges against them.  The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses.  EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals.  The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues. 
 Continue Reading High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations