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.
Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.
A long simmering point of contention between State and Federal governments in the City of San Diego is the fate of the property now occupied by the United States Navy’s Fleet Antisubmarine Warfare Training Center in San Diego Bay. The issue is whether the Federal government, having decided that a 50 year extension of its existing lease over the property is not long enough, can extinguish California’s public tidelands trust rights, granted to the State upon its admission to statehood in 1850, through condemnation of 27.54 filled acres in perpetuity; or whether, as the State claims, California’s public trust rights reemerge if the property is subsequently sold to a private party. The question is of general importance, not only because many states hold public tidelands in trust, but also because the issue represents a test of the scope of the supremacy clause of the United States Constitution, and the doctrine of federal preemption that arises from it. On June 14, 2012, the Ninth Circuit Federal Court of Appeals decided the question in United States of America v. 32.42 Acres of Land, No. 10-56568, D.C. No. 3:05-CV-01137-DMS-WMC (“California Lands”).
Recent appellate cases have once again brought to the fore the critical importance of the “exhaustion of administrative remedies” for any potential challenger to an agency action based on noncompliance with the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act (“NEPA”) and other laws meant to protect the environment and public.
In California, as example, public projects such as road construction, airport development, and power facilities, as well as private projects such as shopping centers are challenged on the basis of the failure to exhaust administrative remedies, or to present the alleged grounds of noncompliance “to the public agency orally or in writing . . . during the public comment period provided by this division or prior to the close of the public hearing . . .” Cal. Pub. Res. Code § 21177.
All too often, individuals, environmental organizations and public agencies wait to make their decisions to challenge the analysis of a project’s environmental impacts until their frustration peaks, and the time for filing a legal challenge arrives. [The usual time for filing a CEQA challenge is very short – 30 days from the filing by the agency of its Notice of Determination (“NOD”) which marks the final agency action in the CEQA process. NEPA is normally 60 days from the signing of the Record of Decision (“ROD”).] By that time, however, it is too late, because “exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184, 1199 (2004).
On January 8, 2008, the United States Environmental Protection Agency published its proposed revisions to the General Conformity Rules. Under the Clean Air Act, a State develops a State Implementation Plan (SIP), which is the State’s plan for bringing sections of the state which do not comply with the Clean Air Act into compliance.