- Federal Court Dismisses Federal Challenge to California’s Cap-and-Trade Linkage to Quebec Program (8/11/2020)
- California Flips Switch Toward Electric Trucks (7/6/2020)
- Golden Door Slammed Shut on County’s CEQA Process Again (July 1, 2020)
- California Employers Face Broader Recording and Reporting Obligations for COVID-19 Illnesses (June 19, 2020)
- Requirement to Post CEQA Notices in County Clerk’s Office Suspended for 60 Days (May 7, 2020)
- Ninth Circuit Orders EPA to Rule on NRDC Petition to Cancel Pet Use Registration for Organophosphate Pesticide (April 29, 2020)
- CA Court Upholds Refinery Project EIR Reaffirming Foundational CEQA Principles (April 15, 2020)
- California Regulatory Agencies Emphasize Continued Compliance During COVID-19 Response (March 24, 2020)
- New Klamath TMDLs: An Impossible Standard? (March 23, 2020)
- California’s Injury and Illness Prevention Plans: New Rules on Employee Access (January 30, 2020)
- Amendments to Proposition 65’s Safe Harbor Regulations Finalized in Attempt to Clarify Legal Responsibilities of Businesses Across the Supply Chain (January 21, 2020)
- California DTSC Accepting Comments on the Use of BPA, Ortho-phthalates, and PFAS in Food Packaging as Part of Its Evaluations under the Safer Consumer Products Program (December 19, 2019)
- Most Recent Amendment to the Groundfish Fishery Management Plan a Rare Source of Agreement (November 26, 2019)
- Compliance Deadline Approaching for California Cleaning Product Disclosures while New York Program Stalls (November 8, 2019)
- Trump DOJ Sues California, Seeks to End State’s Cap-and-Trade Agreement with Québec (October 24, 2019)
- California Water Board Could Leave Non-Compliant Emerald Triangle Cannabis Farmers High & Dry (October 2, 2019)
- California’s Ambitious Plastics Bill Stalls; Minimum Recyclable Content Requirements for Plastic Bottles Passes State Legislature (September 26, 2019)
- California Law Eliminates Email Reporting for Serious Workplace Accidents (September 13, 2019)
- California Supreme Court Clarifies When Zoning Ordinance Amendments Trigger CEQA Review (August 28, 2019)
- Cal/OSHA Wildfire Smoke Emergency Regulation Now in Effect (August 8, 2019)
- Major Automakers Negotiate Emissions Agreement-in-Principle with California (August 7, 2019)
- California Proposes Amendments to Air Cleaner Regulation (July 1, 2019)
- California Haulers and Solid Waste Facilities – Have You Registered on CalRecycle’s New Electronic Reporting System? (July 1, 2019)
- SCAQMD Adopts Dramatic Increase in Fees, Offsetting Costs of AB 617 and Toxics Regulation (June 18, 2019)
- California Court Finds Tribe Lacks Standing to Quantify Reserved Water Right (May 31, 2019)
- California Department of Toxic Substances Control Proposes Regulation Classifying Discarded Solar Panels as Universal Waste (May 20, 2019)
- Seeing Smoke Ahead: Cal/OSHA Proposes Emergency Regulation to Protect Workers from Wildfire Smoke Exposure (May 17, 2019)
- Cannabis Business CEQA Exemption Expires on July 1: Will You Have a Permit or License to Conduct Business? (April 9, 2019)
- DTSC Seeks to Adopt Regulations to Designate Used/Spent Solar Panels as Universal Waste (March 29, 2019)
- Cleaning Product Manufacturers Gear Up for Compliance with State Ingredient Disclosure Laws (March 4, 2019)
- Proposition 65 2.0: Where It Is and Where It’s Going (March 4, 2019)
- CEQA Guidelines Receive Update, Climate Change Drives Major Amendments (February 14, 2019)
- NASDAQ Introduces California Water Index (February 6, 2019)
- California Supreme Court Finds Fresno County EIR Deficient (January 22, 2019)
- California Enacts Broad Prohibitions on Flame Retardant Use (October 11, 2018)
- California Adopts Statewide Producer-Funded Pharmaceutical Household Drug and Sharps Take-Back Program (October 3, 2018)
August 11, 2020
Last year, the U.S. Department of Justice filed a lawsuit in the U.S. District Court for the Central District of California challenging the constitutionality of California’s linkage of its cap-and-trade program to a similar program operated by Quebec. As a result of the linkage, entities may trade compliance instruments across jurisdictions, which expands market opportunities for regulated entities and others. On July 17, 2020, the Court ruled in favor of California on all remaining claims, affirming the constitutionality of California’s linkage with Quebec and ending the case, barring appeal by DOJ.
July 1, 2020
On June 12, 2020, the California Court of Appeal in Golden Door Properties, LLC v. County of San Diego, 2020 WL 3119041, handed San Diego County its third loss, by concluding that the County failed to adopt a Climate Action Plan (CAP) in compliance with CEQA.
June 19, 2020
Guidance issued by the California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) sets forward strict obligations for recording and reporting occupational injuries and illnesses for employees who contract COVID-19. The guidance differs in some key aspects from guidance issued by the federal Occupational Safety and Health Administration (OSHA).
May 7, 2020
On April 22, 2020, California Governor Gavin Newsom issued Executive Order N-54-20, immediately suspending certain notice deadlines and Native American consultation requirements under the California Environmental Quality Act (CEQA). Lead and responsible agencies and project applicants, however, will still need to get notices out to inform the public and conduct outreach with known interested parties as explained below.
April 29, 2020
A long-running dispute between the U.S. Environmental Protection Agency (EPA) and the Natural Resources Defense Council (NRDC) moved a step closer to resolution, with the Ninth Circuit U.S. Court of Appeals ordering EPA to either deny NRDC’s petition to cancel an organophosphate pesticide registration or initiate the cancellation process within 90 days. This opinion marks the fourth time in five years that the Ninth Circuit has issued a writ of mandamus in response to delayed federal agency action.
April 15, 2020
In a 2-1 decision, the California Court of Appeal affirmed a California Environmental Quality Act (CEQA) Environmental Impact Report (EIR) that an oil and gas company prepared for proposed modifications to a Los Angeles refinery and its air permit. In resolving four challenges against the EIR in favor of the agency, the Court of Appeal in Communities for a Better Environment v. South Coast Air Quality Management District reaffirmed several foundational CEQA principles.
March 24, 2020
The California State Water Resources Control Board and the California Air Resources Board have provided direction for complying with regulatory requirements during the COVID-19 response. On March 19, 2020, Governor Gavin Newsom issued an Executive Order requiring California residents to stay at home in response to the COVID-19 pandemic. This order requires residents to “shelter in place” but allowed an exemption for activities deemed to be “essential.”
March 23, 2020
During a week full of COVID-19-related uncertainty, a pair of new lawsuits are a reminder of one constant: disputes over Klamath Basin water. This past week, PacifiCorp and Klamath Water Users Association each filed petitions for review of Total Maximum Daily Loads (TMDLs) for temperature in the Upper Klamath and Lost River subbasins. Both petitions argue that the TMDLs, issued by Oregon Department of Environmental Quality (DEQ), set unachievable standards and are unlawfully based on California standards, among other arguments.
January 30, 2020
California’s Occupational Safety and Health Standards Board adopted a new safety rule on January 16, 2020, requiring employers to provide employees with access to their written Injury and Illness Prevention Plan (IIPP) within five days of an employee’s request. The new rule is scheduled to take effect on January 1, 2021. California’s Occupational Safety and Health Division (Cal/OSHA) frequently cites employers for failing to maintain an IIPP that complies with the detailed requirements set forth in Cal/OSHA’s IIPP rule at 8 CCR § 3203. In addition to verifying that their IIPP complies with those requirements, employers will want to ensure that their IIPPs comply with this new access requirement by determining—and documenting—how requests for access can be made and how employees will be provided access to the IIPP.
January 21, 2020
Companies now have more guidance on how to communicate Proposition 65 warnings for products sold through distributors. The California Office of Environmental Health Hazard Assessment (OEHHA) finalized the amendments proposed to Section 25600.2 of the Proposition 65 safe harbor regulations on January 14, 2020. According to OEHHA, the amendments are intended to "provide more specific guidance for manufacturers, retailers and other businesses in the chain of commerce on how to satisfy their responsibilities to provide consumer product exposure warnings" for substances on the Proposition 65 list. The final amendments become effective on April 1, 2020.
December 19, 2019
The California Department of Toxic Substances Control (DTSC) is moving forward with a process that may ultimately impose restrictions on the use of certain classes of chemicals in food packaging products under the Safer Consumer Products Program. The classes of chemicals in food packaging that are currently being evaluated by DTSC include Bisphenol-A (BPA) and its alternatives, Ortho-phthalates (OPs), and Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS).
DTSC is accepting public comments on the use of BPA and its alternatives and Ortho-phthalates in food packaging through December 19, 2019. The comment period for food packaging containing PFAS will be open through January 14, 2020. DTSC is specifically seeking input from manufacturers and other stakeholders regarding the use of these chemicals in food packaging products, the availability and feasibility of alternatives, and any adverse impacts associated with the lifecycles of these products. DTSC’s current evaluation efforts could lead to a future rulemaking proposal listing certain categories of food packaging products with BPA, OPs and/or PFAS as priority products under the Safer Consumer Products (SCP) Program. A complete list of priority products that have been proposed or adopted by DTSC under the SCP Program is available here.
November 26, 2019
On November 19, 2019, the National Marine Fisheries Service issued Amendment 28 to the Pacific Coast Groundfish Fishery Management Plan. This amendment closes a large amount of new areas to bottom trawling, and re-opens certain other more limited areas. These changes will also protect sensitive deep-water habitat and deep-sea corals from bottom fishing.
November 8, 2019
By January 1, 2020, the California Cleaning Product Right to Know Act (California RTK Act) will require manufacturers of certain covered cleaning products to make extensive ingredient disclosures on their company websites. By January 1, 2021, the California RTK Act will require ingredient disclosures on product labels.
Meanwhile, the New York Department of Environmental Conservation (DEC) cleaning product disclosure program has stalled. On August 27, 2019, the New York State Supreme Court invalidated DEC’s Household Cleansing Product Information Disclosure Program on grounds that the agency did not follow proper rulemaking procedures. DEC has announced its intent to formally propose regulations on cleaning product ingredient disclosures in “the near future.”
October 24, 2019
A recent lawsuit filed by the Trump Administration’s Department of Justice seeks to block a six-year-old agreement between California and Québec that “links” their respective cap-and-trade programs.
October 2, 2019
On September 20, 2019, the California Water Board Division of Water Rights’ Cannabis Enforcement Section mailed 270 certified letters to various farmers in Trinity, Humboldt, and Mendocino Counties notifying them that they lack the appropriate permits for water use in commercial cannabis cultivation. Although the Water Board made clear that they are not, at this time, issuing notices of violation, the letters serve as a shot across the bow to an industry that is beginning to appreciate the importance of compliance with environmental regulations and portends more significant enforcement efforts in the near future.
September 26, 2019
The California State Legislature’s 2019 legislative session concluded this month without a final vote on the session’s highest-profile recycling legislation: the Circular Economy and Pollution Reduction Act (AB 1080/SB 54). The legislation, if passed, would have required a dramatic reduction in the waste generated from single-use packaging and certain priority single-use products. However, California lawmakers were able to pass several other targeted pieces of legislation aimed at addressing single-use plastics and the recycling market in California, including AB 792 and AB 1583. AB 792 and AB 1583 were sent to California Governor Gavin Newsom and are currently awaiting his signature.
September 13, 2019
At the end of August, California Governor Newsom signed AB 1804, a law that alters the method by which employers are to report serious occupational injuries, illnesses, and deaths to the California Division of Occupational Safety and Health (Cal/OSHA). While employers were previously permitted to make such reports via telephone or email, this law eliminates the option for email reporting once a new online portal is operational. Employers can continue to report via telephone.
August 28, 2019
On August 19, 2019, the California Supreme Court ruled on a fundamental California Environmental Quality Act (CEQA) issue: when is a zoning ordinance amendment considered a “project” subject to CEQA? The ordinance at issue was San Diego’s attempt to regulate the construction and operation of cannabis dispensaries within the City. The City concluded that the ordinance was not a “project” because it did not have the potential to cause a physical change in the environment.
The California Supreme Court ultimately disagreed with the City. In Union of Medical Marijuana Patients, Inc. v. City of San Diego (UMMP) the Court held that CEQA does not automatically apply to all zoning ordinance amendments (overruling a previous Court of Appeal’s decision holding to the contrary). However, the zoning ordinance amendments at issue in San Diego were certainly a “project” and thus do not evade CEQA review on the basis San Diego provided.
The Court’s ruling has direct implications for those businesses depending on such zoning amendments, providing an opportunity for a municipality or stakeholder to argue that any desired amendment does not necessarily trigger CEQA review. It is also of great importance to the cannabis industry, who can now be near certain that zoning ordinance amendments specifically for dispensary construction and operation may qualify as “projects” subject to CEQA.
August 8, 2019
In late July, the California Occupational Safety and Health Standards Board adopted an emergency regulation to protect workers from health hazards arising from wildfire smoke. The regulation became effective July 30, 2019, and will remain in effect through January 28, 2020.
August 7, 2019
In advance of the Trump Administration’s plans to move forward with less-restrictive standards for light-duty vehicles, four major automakers have negotiated an agreement-in-principle with the California Air Resources Board (CARB) to provide an alternative approach to reducing greenhouse gas emissions and improving fleet fuel economy. The terms of the private deal with California may provide a template for avoiding a major potential split in standards applicable to the U.S. market – California versus the federal – and the uncertainty of extended litigation over the issue of the extent of California’s authority to promulgate auto emissions standards without Environmental Protection Agency (EPA) approval.
Under the agreement, Ford, Honda, BMW of North America, and Volkswagen Group of America have committed to reducing their vehicles’ average emissions by 3.7% year over year through Model Year 2026 (inclusive of several major new accounting flexibilities outlined below), ultimately reaching the adjusted equivalent of roughly 51 mpg fuel efficiency. By comparison, the EPA’s proposed Safer Affordable Fuel-Efficient Vehicles (SAFE) Rule – slated for finalization later this year – would freeze the standard at 36.9 mpg for Model Years 2020 through 2026.
July 1, 2019
On June 3, 2019, the California Air Resources Board (CARB) held a public workshop in preparation for its plans to initiate rulemaking later this year to amend its regulation on indoor air cleaning devices. In advance of official rulemaking, CARB has released a draft of the proposed amendments designed to strengthen the effectiveness of the regulation, streamline the certification process, and provide additional clarifications on key requirements. Notably, the proposed amendments would eliminate the exemption for in-duct air cleaning devices that has been in place since the regulations were initially adopted in 2007. CARB is continuing to accept public input on this draft (see workshop announcement).
AB 901 (Chapter 746, Statutes of 2015, codified at Cal. Public Resources Code section 41821.5) established a new reporting scheme for the solid waste industry in California. The law requires most solid waste haulers and disposal facilities, including recycling and compositing facilities, to submit quarterly reports to CalRecycle with detailed information regarding the types, quantities, and destinations of materials that are disposed of, sold, or transferred inside or outside of the state. CalRecycle’s implementing regulations for this new reporting scheme became effective on March 5, 2019.
CalRecycle has rolled out a new electronic reporting system to collect the data required by AB 901 called the Recycling and Disposal Reporting System (RDRS). Businesses that are subject to CalRecycle’s new reporting scheme that were in existence as of April 1, 2019, were required to register on RDRS by no later than April 30, 2019. Reporting deadlines for submitting third and fourth quarter reports on RDRS vary by entity type and are posted on CalRecycle’s website here.
June 18, 2019
The South Coast Air Quality Management District adopted an amendment to its Rule 301 on June 7, aimed at collecting nearly ten times the amount of fees it has historically garnished under its toxics emissions fee program. The amendment will include a new Base Toxics Fee, a new Flat Rate Device Fee, and a new Cancer Potency-Weighted Fee, imposed on entities that emit toxics above certain thresholds. Implementation of amended Rule 301 starts with facilities reporting toxics emissions for 2019, with the increased fees due in 2020.
May 31, 2019
The Central District of California in the second phase of Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et. al. issued a decision with massive implications for water rights in the West. In the first part of this case, the District Court decided, and the Ninth Circuit affirmed, that when the United States government granted tribes reservation land, this land came with an accompanying right to groundwater under the reservation.
The initial decision was viewed as a huge win for tribes in asserting claims over increasingly scarce water resources in the Western United States. However, in the second phase of the case, the District Court determined that the Water District has not harmed the Tribe with its groundwater pumping, and therefore the Tribe cannot require the Water Districts stop pumping to leave a certain quantity of water accessible to the Tribe in the aquifer.
While federally reserved water rights, particularly tribal rights, are maintained despite non-use, this case further defines the standing requirements a tribe must meet to sue and enforce these rights
May 20, 2019
The California Department of Toxic Substances Control (DTSC) has proposed regulations that would allow discarded photovoltaic (PV) modules (commonly referred to as solar panels) to be managed as universal waste. The proposal would put discarded solar panels in the same category as discarded electronic devices, batteries and light bulbs: ubiquitous, relatively low-risk hazardous wastes that are allowed to be managed under the more relaxed universal waste standards. DTSC states in the rulemaking proposal that regulating hazardous waste PV modules under the state’s universal waste standards will divert PV modules from the state’s municipal solid waste landfills and will encourage the proper end-of-life management of this emergent waste stream.
May 17, 2019
California wildfires have become more frequent and more intense. These wildfires and the smoke they generate pose risks to worker safety. In response to the poor air quality California experienced during last year’s fires and in recognition of the fact that intense fires will likely continue, the California Division of Occupational Safety and Health (Cal/OSHA) issued a proposed emergency regulation addressing smoke exposure. A public meeting to discuss the proposed regulation was held on May 8, 2019.
April 9, 2019
The legalization of cannabis in California has brought about a flurry of regulatory and statutory requirements to conduct business. In order to facilitate the business demand, the State postponed certain requirements, such as the need to comply with the California Environmental Quality Act (CEQA). As stated in California Business and Professions Code section 26055(h) (below), CEQA did not apply to an ordinance, rule, or regulation issued by a local jurisdiction related to the approval of permits and licenses for the commercial cannabis business.
March 29, 2019
The California Department of Toxic Substances Control (DTSC) held a workshop on March 25, 2019 and presented information on California’s Universal Waste Program and the proposed regulations to include waste photovoltaic modules (PV modules), commonly known as solar panels, on the list of hazardous wastes eligible to be managed as universal waste.
More information on this rulemaking, including the workshop presentation materials, are available here. Until the new regulations are adopted, solar panels that exhibit characteristics of hazardous waste must be managed as hazardous wastes and not as universal wastes. B&D will continue to monitor and report on this rulemaking. – Author: Dave Weber
March 4, 2019
Over the next year, California and New York will begin phasing in requirements for manufacturers of cleaning products – including household cleaners, as well as and clothes and dish detergents – to make extensive ingredient disclosures. This will eventually require disclosures on both product labels and manufacturer websites. Both laws involve complex questions regarding which ingredients must be disclosed, whether certain chemical identities may be withheld to protect confidential business information (CBI), and what else must be publicly disclosed (e.g., certain manufacturer studies). Manufacturers of in-scope products should gear up for compliance now.
Proposition 65 is a California warning requirement of concern for companies throughout the U.S. It has recently undergone remarkable changes, taking on new life and creating new challenges for suppliers everywhere.
The new Article 6, Clear and Reasonable Warning (safe-harbor) regulation took effect on August 30, 2018. This is clearly the most important recent development in Proposition 65 compliance. In 2016, the Office of Environmental Health Hazard Assessment (OEHHA) completely overhauled the decades-old warning rules. Those rules finally took effect on August 30, 2018. Now, compliance with the old Article 6 regulation will no longer afford companies clear protection from Proposition 65 enforcement actions. While companies may continue to craft their self-customized Proposition 65 warnings (at their own risks), complying with the warning methods and language requirements in the new Article 6 rules should provide them with protection from enforcement actions.
February 14, 2019
At the end of 2018, the Office of Planning and Research’s (OPR’s) years-long effort (since 2011) to update the Guidelines (CEQA Guidelines) implementing the California Environmental Quality Act became a reality. This comprehensive update to nearly 30 sections of the CEQA Guidelines (along with some additions) incorporates new statutes and court decisions. The final text of the amendments can be found here. California’s battle to ward off the effects of climate change has ushered some of the biggest changes to the Guidelines, including criteria for assessing Vehicle Miles Traveled (VMT) for determining a project’s traffic impacts (as well as inclusion in the Appendix G checklist) and a clear mandate to address climate change impacts during environmental review.
February 6, 2019
In response to the increasing uncertainty of water prices and diminishing supply of water in the western U.S., NASDAQ has developed the first water pricing index for the state of California. The index benchmarks the price of water by setting a weekly rate in California. By creating a price index, water rights may become a tradable financial instrument. This differs from traditional water indexes, which track companies who extract and deliver water in western states.
Along with Veles Water and WestWater Research, NASDAQ hopes this system will help to make water a more accessible commodity and diminish the confusion over fair pricing for water. Climate change effects have increasingly been felt in the drier western U.S., especially when it comes to acquiring necessary water rights for building, business development, or expansion. Without a set pricing index, many buyers are at the whim of the market and their own knowledge in determining if the cost of a water right is fair. – Author: Lucy Infeld
January 22, 2019
A recent California Supreme Court decision reminds project proponents and lead agencies of the need for substantive analysis in an Environmental Impact Report (EIR). On Christmas Eve 2018, the California Supreme Court published its opinion in Sierra Club et al. v. County of Fresno et al. The Sierra Club challenged the adequacy of Fresno County’s EIR for failing to comply with the California Environmental Quality Act. The EIR analyzed the Friant Ranch project, a 942-acre master-planned community in north-central Fresno County. The Project includes a specific plan covering five phases constructed over 10 years containing up to 2,500 single and multi-family active adult 55+ homes, 250,000 sq. ft. of commercial property and 460 acres of open space.
October 11, 2018
California Governor Jerry Brown has signed into law Assembly Bill (A.B.) 2998, restricting the sale of flame retardant-containing children products and furniture. Effective January 1, 2020, A.B. 2998 prohibits any person from selling or distributing new juvenile products (i.e., products used by infants and children under the age of 12), mattresses, and upholstered furniture that contain a designated flame retardant chemical at levels above 1,000 parts per million. The law also prohibits, beginning on January 1, 2020, a custom upholsterer from repairing or reupholstering upholstered furniture using replacement components that contain more than 1,000 ppm of a designated flame retardant chemical.
October 3, 2018
On September 30, 2018, Governor Brown signed SB 212, an act amending the California Integrated Waste Management Act to create a statewide takeback program for pharmaceuticals and sharps (the “Act”) from households. California joins Washington and New York in implementing statewide pharmaceutical takeback programs. By enacting SB 212, California also adds to existing producer-funded stewardship programs operating in the State for products ranging from paint to mattresses.
The Act requires manufacturers of “covered products” to create and operate a stewardship program that provides for the takeback of covered drugs and home-generated sharps waste from households. The Act also imposes various requirements on a covered entity or stewardship organization that operates a stewardship program, including submitting a proposed stewardship plan, an initial stewardship program budget, an annual budget, annual report, and other specified information to the California Department of Resources Recycling and Recovery (CalRecycle). CalRecycle is required to adopt implementing regulations no later than January 1, 2021. Cal. Pub. Resc. Code § 42031.2(a). “Program operators” must submit their proposed programs within six months of CalRecycle adopting relevant implementing regulations.