O’Neil v. Crane Co., Cal. S177401, Jan. 12, 2012
The California Supreme Court held that manufacturers of valves and pumps, which were integrated into boilers that had asbestos insulation, were not strictly liable for personal injuries resulting from exposure to asbestos because the valves and pumps did not contain asbestos and thus could not have caused any harm.
The Flanders Foundation v. City of Carmel-by-the-Sea Cal.App. , DJDAR 121 (Jan. 4, 2012)
The City of Carmel-by-the-Sea intended to sell an historical piece of real property that was constrained to historical uses. As a result, the city did not consider the possible use for affordable housing in the EIR. The Surplus Lands Act requires agencies to offer properties for affordable housing or park purposes before offering it to the general public.
A foundation sued the city, claiming the EIR had to consider affordable housing. The trial court agreed. The Court of Appeal, however, held the City did not need to consider affordable housing in the EIR because such use was not a reasonably foreseeable use due to its historical nature and limitations in use.
Citizens for East Shores Park v. Cal. State Lands Commission
2012 DJDAR 28. A129896 (December 30, 2011)
A citizen’s group challenged the State Lands Commission’s approval of a lease renewal with Chevron for a bayside terminal, claiming the Commission violated the public trust doctrine and CEQA and failed to impose mitigation requirements on Chevron regarding upslope trails.
The Court of Appeal held the State Lands Commission did not have to consider other possible public trust uses, such as recreation, when it renewed a marine terminal lease with Chevron in San Francisco Bay waters near the Richmond refinery. The Commission originally had approved the use in 1949, and at that time approved one type of use, commerce, permitted by the public trust doctrine. Here, the Commission was simply continuing a long-standing and permissible public use that was also supported by an adequate EIR under CEQA. The Commission did not have a separate and additional obligation to consider public trust options outside of CEQA – compliance with CEQA was sufficient.
The Court further held the Commission used the proper baseline for the EIR, which were the existing conditions presented by an existing marine terminal. The Court disagreed with petitioners that the baseline should exclude consideration of present operations and, instead, focus on conditions preceding the 100 year-old terminal due to the alleged ability of the Commission to “eliminate” current conditions by not renewing the lease.
Finally, the Commission correctly declined to assess the impact of the existing terminal on upland trails because any claimed affects were not due to the project -which was simply a lease renewal. For the same reason, the Commission also did not have to consider mitigation for the trails under CEQA.
Reprinted from the San Diego Union Tribune
FRESNO, Calif. — California officials say they will ask a federal judge to stay his ruling that blocks the state from enforcing the first-in-the-nation mandate for cleaner, low-carbon fuels.
In a decision issued Thursday, Fresno-based U.S. District Court Judge Lawrence O’Neill said the low-carbon fuel rules favor biofuels produced in the state. He said that violates the U.S. Constitution’s commerce clause by discriminating against crude oil and biofuels producers located outside California.
California Air Resources Board spokesman Dave Clegern disagreed, saying the fuel rule is “an evenhanded standard that encourages the use of cleaner low carbon fuels by regulating fuel-providers in California.”
He said the board plans to ask the judge to stay the ruling, and appeal if necessary to the 9th U.S. Circuit Court of Appeals.
Out-of-state fuels producers hailed the decision as a win for California drivers.
“Today’s decision … struck down a misguided policy that would have resulted in even higher fuel costs for Californian consumers while increasing the cost of business throughout the state,” Consumer Energy Alliance Executive Vice President Michael Whatley said.
Beginning this year, the standard has required petroleum refiners, companies that blend fuel and distributors to gradually increase the cleanliness of the fuel they sell in California.
The board previously had said the low-carbon mandate will reduce California’s dependence on petroleum by 20 percent and account for one-tenth of the state’s goal to cut greenhouse gas emissions by 2020.
The regulation does not mandate specific alternative fuels. Rather, it assigns a so-called carbon-intensity score to various fuels. By 2020 all vehicles fuels, on average, must be 10 percent less carbon-intensive than gasoline is now.
The Rocky Mountain Farmers Union, the California Dairy Campaign, the Renewable Fuels Associations and other groups filed a similar lawsuit in the same court in 2009. Their complaint said the regulation conflicted with the federal Renewable Fuel Standard and would close California’s borders to corn ethanol made in other states.
The fuel standard “discriminates against out-of-state and foreign crude oil while giving an economic advantage to in-state crude oil,” O’Neil wrote Thursday.
The nonprofit legal organization Earthjustice, which was not party to the suit but works on climate-related issues, said the state’s clean energy programs are consistent with federal law.
“California is leading the way on cleaner fuels and a cleaner power grid,” Earthjustice President Trip Van Noppen said. “It is not surprising that the oil industry is attacking these programs, but like previous attacks in the courts and at the ballot box, we expect this one ultimately to fail.”
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Associated Press writer Jason Dearen contributed to this report.
The Associated Press
Reprinted from the San Diego Union Tribune, December 29, 2011
By John Reaves and Ryan Ginard
TransCanada has proposed the 1,702-mile, $7 billion Keystone XL pipeline (“KXL”), designed to carry an additional 830,000 barrels per day of tar sand oil from Canada to refineries near the Gulf. KXL has spawned national controversy and protests.
The fate of KXL lies in the hands of the State Department and President Obama, who campaigned to combat climate change. In November, the president said he would delay any decision until 2013. Congress recently tied a payroll tax extension to a 60-day presidential decision on KXL or face an automatic permit grant.
After carefully evaluating pros and cons, the U.S. Green Chamber of Commerce urges our government to reject misleading arguments that we would be safer and better off economically pursuing risky unconventional sources of fossil fuels. Instead, we should boost clean energy.
The chamber supports business practices that are sustainable and consistent with long-term environmental protection and also enable businesses to participate in the rapidly growing green economy. It would be irresponsible to invest in infrastructure that hastens destruction of the environment and dependence on extra-dirty fuels.
Our nation’s foremost climatologist, James Hansen, says if KXL is built and Canadian tar sands are developed, carbon dioxide could rise to 600 parts per million (since humanity began, only exceeded 290 after Industrial Revolution; “safe” is below 350; currently about 390). He says the “game” (stopping the worst of climate change) would be “over,” leaving dire challenges to our children and planet.
Extracting and refining tar sands is so fuel-intensive that the EPA estimates an increase of 1.15 billion tons of greenhouse gases over KXL’s 50-year life span.
Processing requires grinding down the surface, often over 50 feet, to get at bitumen seams, then consuming 400 million gallons of water a day to produce petroleum slurry. Ninety percent of the resulting polluted water is dumped into toxic tailing ponds that already cover 65 square miles.
The environmental destruction is inconceivable. The Alberta tar sands set for extraction are found under forests and wetlands similar in size to Florida.
KXL would traverse our heartland over the Ogallala aquifer that serves farms and 2 million people. The two existing tar sands oil pipelines already have bad records, including an 830,000-gallon spill into the Kalamazoo River last year.
Proponents of KXL urge we jump at private investment and jobs. The State Department says projected jobs are around 6,000, not 20,000. Even a large number would not justify the huge environmental cost.
They also claim getting oil from Canada strengthens national security. Yet retired four-star generals and admirals concluded in a Rockefeller Foundation study that climate change, if not addressed, is the greatest threat to national security. Furthermore, the U.S. Energy Information Administration reports we export more petroleum products than we import. Since proponents argue KXL imports would make us more secure, wouldn’t exporting less be a better option?
Moreover, even if the U.S. permits KXL, most of the oil appears destined for other countries. The New York Times reported six companies have already contracted for three-quarters of the oil. Five are foreign, and the one American company, Valero, is reportedly geared toward export.
Meanwhile, China has invested billions in Canada’s tar sands projects. There is currently no way to deliver oil to the Pacific, and disputes with environmentalists and indigenous communities threaten to derail any proposed pipeline.
The chamber understands the need to improve jobs and the national economy. We want America to become the engine of the global economy again. But KXL is not the answer.
Put a price on carbon, such as with Rep. Pete Stark’s Save Our Climate Act, and watch a landslide of capital move to renewables. Add long-term regulatory direction and certainty.
Increase utilities’ use of renewable energy nationwide. Allow anyone to sell excess generated power to utilities at a reasonable profit over a long term. Provide low-interest funding options for solar, wind, geothermal, and other renewable energy projects and require use of American products to the fullest extent practical. Do the same for energy efficiency projects. Streamline processing for similar types of renewable projects. Continue subsidies to fledging – and promising – clean industries.
All these would help spur jobs and retrain many of the unemployed.
We face a great moral challenge: whether to lock ourselves into possibly catastrophic climate change or stop using dirtier unconventional fossil fuels. The chamber urges: 1) the U.S. reject KXL, 2) press all nations to leave tar sands in the earth, and 3) create clean energy jobs by pricing carbon and adding regulatory direction.
Reaves, a San Diego-based business and environmental lawyer, is director of policy for the U.S. Green Chamber of Commerce and co-founder of Ecovolve Partners. Ginard is the advocacy and government relations manager for the U.S. Green Chamber of Commerce.
By Lynn Doan – Dec 16, 2011 3:27 PM PT
California passed rules discouraging the state’s refiners, including Chevron Corp. (CVX) and Tesoro Corp. (TSO), from processing types of crude that release more carbon when produced and delivered, such as output from Canada’s oil sands.
The regulation, approved as a change to the state’s low- carbon fuel standard, assigns “carbon-intensity” values to about 250 types of crude oil, favoring those that take less energy to produce and transport. Next year, companies will have to cut their carbon scores on a statewide average and potentially on a refinery-by-refinery basis.
Refineries have fought high-carbon crude regulation since the state approved it in 2009, saying the rules are anti- competitive and compound other costly measures under the low- carbon fuel standard and the state’s cap-and-trade program.
The standard, the first of its kind in the country, seeks to cut the carbon-intensity of transportation fuels 10 percent by 2020.
“The mission of these rules is to use less of that carbon- intensive stuff,” Dave Clegern, a spokesman for the state California Air Resources Board, said in a telephone interview from Sacramento. “This will hopefully help us keep a wide variety of crudes available but create deficits with the dirtier kinds.”
While the air board estimates that higher-carbon crudes are a small part of California’s refining mix, imports from outside Alaska and Central California have been climbing since 1999, state Energy Commission figures show.
Crude-oil production in Alaska has declined every year since 2002. California oil production has fallen for the last 13 years. Alaska has historically been the largest source of non- Californian oil in the state.
The percentage of non-Alaskan oil imported to California refiners made up almost half of the crude processed in the state last year, according to the energy commission.
The air board’s new rules “are in anticipation of a time when more might come in,” Stanley Young, a board spokesman in Sacramento, said in a telephone interview.
The regulation will raise the costs of refining in California and eventually boost retail gasoline and diesel prices, David Hackett, president of energy consultant Stillwater Associates in Irvine, California, said in a telephone interview.
“After Alaska, you’d rather get the rest from Canada next door than from Saudi Arabia halfway around the world,” Hackett said. “But these rules make it so you can’t use that dirty Canadian stuff.”
The Western States Petroleum Association, which represents California’s major refiners including BP Plc (BP/), Chevron and Exxon Mobil Corp. (XOM) and Tesoro, is lobbying the air board to change the rules in a way that doesn’t differentiate between crude types.
The individual scoring imposes “a very limiting, inflexible provision” for refineries that are designed to run off heavy oil, Catherine Reheis-Boyd, the group’s president, said in a telephone interview from Sacramento.
“This one I scratch my head at,” Reheis-Boyd said. “Canada has been very clear that they will develop oil sands and put them on boats to China and India, and it’ll be burned in much less-efficient refineries than we have here in California. So the rule doesn’t achieve any of the goals it wants to anyway.”
The association is fighting against provisions in the fuel standard that forces refiners to blend increasingly more low- carbon biofuels into gasoline. Biofuels, particularly sugar cane and cellulosic ethanol, required to meet the standard will surpass supplies in 2015, a report commissioned by the association shows.
The Air Resources Board “likes to go out and make these rosy projections,” Scott Folwarkow, a governmental affairs director for Valero, said in a telephone interview from Sacramento. “They’ve got all these different scenarios they think might work, but in reality, they throw caution to the wind and hope to address deficiencies at a later time.”
To contact the reporter on this story: Lynn Doan in San Francisco at ldoan6@bloomberg.net
To contact the editor responsible for this story: Dan Stets at dstets@bloomberg.net
Avenida San Juan Partnership v. City of San Clemente
201 Cal.App.4th 1256 (2011)
(4th Dist., Div. 3)
December 14, 2011
The plaintiff acquired 2.85 acres of undeveloped land in 1980, which allowed six dwellings per acre at the time. After a landslide occurred nearby in 1983, opposition developed to further development, and a petition was submitted to the City asking that the plaintiff’s property become open space. At the time, the City Attorney gave his opinion that would be a compensable taking. The City of San Clemente amended its General Plan in 1993 and imposed “residential, very low” (RVL) (1 dwelling per 20 acres) for that property, even though surrounding residential property was “residential, low” (RL) (4 per 1 acre). The City formally rezoned the property RVL in 1996.
Ten years later, plaintiff submitted development plans for four dwellings, which was rejected. Plaintiff sued, claiming the City had done an illegal spot zoning. The trial court agreed as well as found the City had given inadequate notice of the change in zoning and that the changes were arbitrary and capricious. The court gave the City the option to vacate the zoning or pay damages of $1.3 million.
The Court of Appeal examined the takings law under the federal Constitution (Penn Central factors) and affirmed except as to the damages, which it remanded to the trial court for further consideration. The Court found the regulation had gone too far as applied to this property. The economic restrictions were dramatic, plaintiff’s investment-backed expectations were undermined, and the City’s real desire appeared to be to keep the parcel as an open space.
This case represents an extremely rare outcome. If there is any possible use of the property, even if a very poor one by comparison to the owner’s hopes, then there usually is no taking found. Undoubtedly, the cause of the anomaly was the clear, discriminatory spot zoning, in which plaintiff was treated differently, and for no apparent reason, from the surrounding properties.
Prepared by John Reaves
Thursday, December 1, 2011
Large public projects in San Diego often become the subjects of protracted legal battles, stalling their development for many years or even ending them altogether.
A new group in town would like to change that.
The recently launched Land Use and Environmental Mediation Group is focused on getting stakeholders together to engage in constructive dialogue as a more efficient and effective way to solve some of the region’s bigger conflicts.
“Some of these big public policy issues that affect so many people get distorted and buried in a court of law, where in mediation people can talk through things,” said San Diego’s Barbara Filner, a longtime mediator and one of five members of the group. “Not that I don’t think courts are useful — I do, they’re great — but so many of the issues that affect the environment are so complicated and nuanced and need input from so many people.”
Filner, founding director of the National Conflict Resolution Center’s Training Institute, has been a mediator for more than 27 years. She believes that mediation forces individuals to really examine what their position is and allows them to be creative in thinking of solutions.
“What is it that you really want and why?” she said. “Do you want more access? Do you want a better way to build something? It gets people to examine why they took a position.”
Filner is joined on the Land Use and Environmental Mediation Group by scientist and mediator Richard Caputo and land-use attorneys Michael Jenkins, Cary Lowe and John Reaves.
Collectively, they have more than 100 years of experience in the practice of mediation.
“We each have a different expertise,” said Reaves, who comes from an environmental law background and has his own solo practice. “(I’m) not aware of any team offering mediation services the way we are in Southern California. There may be individual land-use mediators but not a team to pick from with the wealth of experience that we have.”
Caputo said the state’s current environmental review process, which can involve regulatory hearings, may solve any legal disputes but isn’t the best way to find a solution that benefits both parties.
“I noticed the same people keep repeating the same comments,” he said. “There’s no dialogue; no evolution of interaction. The fixed positions are stated over and over and then some agency makes a decision.
“I always thought (this process) lacked any way to reach common ground. I’m interested in that extra step.”
Reaves said mediation has rarely been used to solve environmental conflicts, mainly because the issues surrounding the projects don’t involve money but rather principals and other broader objectives.
But those are just the types of disagreements that can be better solved through alternative methods, according to Reaves.
“In most instances, you have parties that have certain agendas and are not listening to the other side’s interests,” he said. “In a structured facilitation, they often hear things they hadn’t heard before that allows them to move forward and see a new approach that may reduce or eliminate other conflicts.”
The group can help organize public facilitation, where affected stakeholders are brought together in a public forum to discuss possible problems and likely solutions.
One of the first issues the group is tackling involves the conflict surrounding the proposed redevelopment of the Plaza de Panama space at Balboa Park.
Lowe already has held a mediation session with officials from the Save Our Heritage Organisation, who oppose a plan being considered by the city and Irwin Jacobs, who has helped developed the plan.
It’s just one of several projects the new mediation team would like to handle along with ones involving the Embarcadero, wind turbine farms and solar projects in the desert.
“Our goal is to help reduce conflict in the most efficient manner to benefit our region and our economy,” Reaves said.
Pfeiffer v. City of Sunnyvale (Nov. 22, 2011)
Cal. Court of Appeal (6th District) H036310
Interesting case involving CEQA challenge to EIR based on traffic conditions:
SUMMARY OF KEY FACTS:
The project proponent sought in this case to demolish a medical building, parking lots and several residences in order to build a larger medical complex. Neighbors challenged the EIR under CEQA, claiming traffic and noise baselines were incorrect.
SUMMARY OF COURT RULING:
The trial court ruled in the city’s favor, and the Court of Appeal affirmed, finding the city correctly judged whether the project would have any significant impacts on the environment based on the conditions in the vicinity of the project.
The Court of Appeal concluded the city could also rely upon predicted conditions of traffic increase, based upon approved but not yet built projects and general predicted increases in traffic. The city was not limited to existing conditions.
The Court further stated there is no rigid formula for considering traffic or other impacts. Generally, impacts are assessed as of the time of the Notice of Preparation, or, if none, then at the time environmental analysis is started. But, just as projects’ completion time can vary, so can the timing and nature of impacts.
Challengers have the burden of proof, which can be daunting, particularly in light of the great deference accorded the agency decision. Technical perfection is not required, and the agency decision is presumed correct unless the decision lacks substantial evidence, generally shown by the absence of any evidence to support a decision, as opposed to conflicting evidence in the record.
Prepared by John Reaves
Friends of Shingle Springs Interchange Inc. v. County of El Dorado, Cal.App.4th , DJDAR16849 (Nov. 22, 2011)
When a corporation’s powers are suspended, it lacks standing to sue. Substantial compliance with corporate laws may restore such standing, however, the Court held substantial compliance does not toll the short 90-day statute of limitations in a CEQA action.
