October 9, 2012
[Editor’s note: Thanks to guest blogger Garret Murai for sharing this news with The Wendel Forum. Garret is a construction litigation attorney at Wendel Rosen. He posts frequently on construction issues at his blog www.CalConstructionBlawg.com.]
The Governor’s Office of Planning and Research’s Solar Permitting Work Group has published a guide to the solar construction permitting process entitled California Solar Permitting Guidebook. The guidebook addresses California laws and regulations, the process for project approvals, and recommendations for improving permit processes for solar installations.
In other energy news, Energy Upgrade California, an alliance of California cities, counties, investor-owned utilities, including Pacific Gas & Electric Company, Southern California Edison, Southern Gas Company, and San Diego Gas & Electric Company, and others, has established a program to help train building professionals in the latest home performance standards, listing in an online contractor directory, and offering connections to clients looking for services. If you are a contractor click on the link “I’m a contractor or rater.”
March 22, 2012
(Note: Thank you to guest blogger, Wendel Rosen Environmental Partner Bruce Flushman, for this update on an important U.S. Supreme Court decision that came out yesterday.)
The Environmental Protection Agency and U.S. Army Corps of Engineers have lost one of their most significant levers in regulating wetlands under the Clean Water Act. Wednesday, in Sackett v. Environmental Protection Agency, et al. , the United States Supreme Court ruled unanimously that landowners have the right to seek judicial review before being forced to comply with enforcement orders.
In this case, the EPA issued a compliance order asserting that landowners violated the Clean Water Act because they filled wetlands on their land without obtaining a permit. The EPA relies on these compliance orders and the threat of significant fines (up to $37,500 a day) to “urge” landowners to comply quickly with such orders. These landowners fought back, claiming their property was not a wetland, but, under previous rulings, they had no way to challenge the EPA’s unilateral wetland claim. That is, the landowners had a Hobson’s choice of complying with an order with which they did not agree or risking the expense of a defense of and possible imposition of significant penalties if EPA filed and successfully prosecuted an enforcement action.
With this ruling, landowners can now confront the government’s interpretation of what constitutes a wetland under the Clean Water Act by challenging the agency’s basis for demanding compliance.
While the Supreme Court didn’t agree with the landowners’ broader claim of a due process violation, it held that the landowners could challenge the government’s claims under the Administrative Procedure Act (APA); the APA provides for challenges to agency decision making.
In sum, the EPA and the Corps will likely face challenges to their unilateral determination of the scope of the jurisdiction. And, while the case focused on the Clean Water Act, it may affect the use of administrative compliance orders under other statutes, such as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
January 16, 2012
[Note: Thanks to Wendel Rosen attorney Greg Jung for this update and guest post.]
On January 12, the California Energy Commission approved the nation’s first efficiency standards that apply to “vampire” chargers — electrical battery charging systems that consume electricity even when they are not connected to the device being charged or turned off. The new rules would take effect on Feb. 1, 2013, for chargers used with consumer goods, such as phones and power tools; on Jan. 1, 2014, for industrial chargers, such as forklifts; and on Jan. 1, 2017, for commercial equipment chargers, including walkie-talkies for emergency personnel and portable bar-code scanners.
December 9, 2011
[Note: Thanks to Wendel Rosen attorney Greg Jung for this update and guest post. You can be sure we’ll be watching what happens with cap-and-trade in California.]
On Tuesday, the San Francisco Superior Court Judge who had previously ruled in March 2011 that the California Air Resources Board (CARB) had not adequately considered alternatives to its plan to create a cap-and-trade market for carbon emissions found that CARB has demonstrated satisfactory compliance with adequately complied with his prior orders. (ASSOCIATION OF IRRITATED RESIDENTS et al VS. CALIFORNIA AIR RESOURCES BOARD et al , case no. CPF-09-509562.)
This order paves the way for California to implement the cap-and-trade program. CARB approved and submitted its final cap-and-trade regulations to the California Office of Administrative Law in October 2011. The program is scheduled to take effect in 2013 and is part of the regulations implementing the Global Warming Solutions Act of 2006 (AB32), which requires California to reduce greenhouse gas (GHG) emissions to 1990 levels by 2020.
Superior Court of California, County of San Francisco, Register of Actions in case: http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=IJS&PRGNAME=ROA22&ARGUMENTS=-ACPF09509562
CARB website info on AB 32: http://www.arb.ca.gov/cc/ab32/ab32.htm