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California Environmental Law & Policy Update
January 26, 2018


Supreme Court rules that WOTUS rule challenges should be heard by federal district courts

The Hill - Jan 22 The Supreme Court unanimously ruled Monday that cases litigating the validity of an Obama-era regulation under the Clean Water Act, known as the Waters of the United States (WOTUS) rule, should be heard by federal district courts, not federal circuit courts of appeals. The WOTUS rule, which provided that the EPA and Army Corps of Engineers could potentially assert regulatory jurisdiction over small isolated waterways like ponds and streams, was challenged by states and industry groups as overbroad in multiple lawsuits brought at both judicial levels. The Supreme Court agreed to hear the case in January 2017 in order to resolve the procedural question of which courts had jurisdiction to adjudicate the substantive challenges to the rule.

California sues Trump administration over repeal of hydraulic fracturing regulations

Sacramento Bee - Jan 24 California, the third-largest oil producing state in the nation, on Wednesday sued the Trump administration to reinstate an Obama-era rule governing hydraulic fracturing. In a lawsuit filed in federal court in San Francisco, state Attorney General Xavier Becerra argued that repeal of the hydraulic fracturing regulations, which were finalized by the U.S. Department of the Interior in 2015 under the Obama administration, represents a threat to public health and the environment. The regulations, which applied to hydraulic fracturing on federal and Native American lands, were adopted to ensure that oil and gas wells are constructed in a way that protects underground drinking water aquifers, that drilling fluids are managed in an environmentally sound way, and that information regarding the chemicals used during the extraction process is publicly disclosed. The Department of the Interior formally rescinded the rule on December 29, 2017. Interior Secretary Ryan Zinke explained that the rule “unnecessarily burdens industry with compliance costs and information requirements that are duplicative of regulatory programs of many states and some tribes.”

San Diego approves landmark environmental deal that could spur development

San Diego Union-Tribune - Jan 23 The San Diego City Council approved this week a long-awaited habitat conservation plan intended to improve protection of biologically-rich “vernal pools” while also easing development project approvals by clarifying how developers can build on land containing such pools. Vernal pools, which form in soil depressions where layers of hardpan clay prevent rain from percolating into the ground, only exist for a few weeks or months each year, almost always in the spring. Federal officials have agreed to cede authority over projects that would destroy vernal pools to San Diego officials. In exchange, the city has agreed to protect many vernal pools and abide by a clear set of rules endorsed by federal officials. While local environmental groups generally supported the city’s efforts and participated in negotiations, some say the deal should protect more existing vernal pools and mandate restoration efforts on more damaged vernal pools.

San Bernardino water district wants Nestlé to pay it back for extra water diversions

The Sun - Jan 20 In a letter to the State Water Resources Control Board, the San Bernardino Valley Municipal Water District, the water wholesaler for nearly 700,000 people from Yucaipa to Bloomington, has asked the state for assistance in crafting a document to have Nestlé compensate the water district for what may be excessive water diversions from the San Bernardino National Forest for use in Nestlé’s Arrowhead bottled water. On December 20, the state water board issued a Report of Investigation saying that Nestlé Waters North America‘s current operations in the national forest appear to have significantly exceeded authorized water diversions. The report found that in the period from 1947 to 2015, Nestlé reported extractions from the national forest averaging 62.6 million gallons per year, but that the company must limit its use of water to 8.47 million gallons annually unless it has evidence of valid water rights to extract more water.

Another East Bay city sues oil companies over climate change

East Bay Times - Jan 22 The City of Richmond has joined the ranks of California cities and counties suing oil companies to cover the cost of shoring up shorelines from rising sea levels due to climate change. Richmond – home to the Bay Area’s largest refinery, the Chevron oil refinery – sued a group of major oil, gas, and coal companies on Monday in Contra Costa County Superior Court, alleging that the companies knew for 50 years that greenhouse gases from widespread fossil fuel use would contribute to rising sea levels, but continued to market fossil fuels anyway. Similar sea level lawsuits against the oil industry also have been filed by the counties of Santa Cruz, Marin, and San Mateo and the cities of Santa Cruz, Oakland, San Francisco, and Imperial Beach in San Diego County.

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