Articles

  • 6/7/2017

In Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, the Court of Appeal held that the Agricultural Commissioner of Sonoma County (Commissioner) correctly issued an erosion-control permit without consideration of the California Environmental Quality Act (CEQA) because issuance of such a permit is a ministerial act and the Commissioner had no authority to mitigate any potential environmental impacts in a meaningful way. 

  • 6/7/2017

The Sixth District Court of Appeal in California recently held that three ordinances did not constitute a single project under the California Environmental Quality Act (CEQA). Aptos Council v. County of Santa Cruz 10 Cal. App. 5th 266. In 2010, the Santa Cruz County board of examiners adopted an ordinance which authorized administrative approval of “minor exceptions” to zoning site standards. In September 2013, the planning department adopted an ordinance which amended standards for hotel development. In October 2013, the board passed an ordinance which would allow administrative approvals of sign exceptions with a public notice and a public hearing for exceptions that exceeded certain limits.

  • 6/7/2017

The California Global Warming Solutions Act of 2006 (AB32) was passed by a simple majority vote of both legislative houses. AB32’s general purpose is to reduce greenhouse gas (GHG) emissions to protect the environment. Plaintiffs and Appellants in California Chamber of Commerce v. State Air Resources Board (Case No. CO75930; April 6, 2017) do not quarrel with AB32 or its goals, but attack one part of the implementing regulations adopted by the state Air Resources Board (ARB). ARB created a “cap-andgrade” program that includes the auction sale of some—but not all—GHG emissions allowances.

  • 6/7/2017

The Ninth Circuit Court of Appeals found that it lacked jurisdiction to review the requirements of draft National Pollutant Discharge Elimination System (NPDES) permits proposed by the Los Angeles Regional Water Quality Control Board (“LA Board”) for two public water treatment plants in Southern California. Petitioners must seek review in accordance with California law. Southern California Alliance of Publicly Owned Treatment Works v U.S. Environmental Protection Agency (9th Cir. 2017) 853 F.3d 1076.

  • 6/7/2017

I, like you I presume, need to eat. Sometimes I, maybe like you, eat too much. And finding food is relatively easy in our country. There are restaurants (fast food, slow food, cheap food, expensive food), grocery stores (old term…supermarkets), specialty stores (like a store that only sells herbs cultivated in an organic farm deep in the woods of Humboldt County), farmers markets (which always block the street you want to take) and more. The reason this country is blessed with an abundance of food is because our agricultural businesses are still surviving, although any farmer will tell you it’s a chancy business with an ever increasing amount of regulatory requirements.

  • 6/7/2017

The U.S. Court of Appeals for the District of Columbia Circuit recently vacated a 2008 Environmental Protection Agency (EPA) rule that exempted farms from Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements for air releases from animal waste. Waterkeeper Alliance v. Environmental Protection Agency 853 F. 3d 527 (2017). In December 2007, the EPA proposed exempting farms from CERCLA and EPCRA reporting of air releases from animal waste.

  • 6/7/2017

The California Global Warming Solutions Act of 2006 (AB32) established the first comprehensive greenhouse gas regulatory program in the United States. AB32’s goal was to progressively reduce greenhouse gas emissions to 1990 levels by 2020. One of the actions taken by the Air Resources Board (ARB) to achieve this goal was promulgating the low carbon fuel standards (LCFS) regulations, designed to reduce the carbon content of transportation fuels. However, when ARB adopted the original LCFS regulations in 2009, it violated the California Environmental Quality Act (CEQA).

  • 5/4/2017

On Friday, April 28, 2017, Governor Jerry Brown signed California Senate Bill 496, (SB 496).  SB 496 revises Civil Code section 2782.8 and modifies a design professional’s contractual duty to defend by limiting a design professional’s potential liability for defense fees and costs to the design professional’s proportionate percentage of fault.  

  • 4/27/2017

A Nevada federal district court remanded a bad faith case removed to federal court under diversity jurisdiction by an insurer, finding that the removing insurer had not established the $75,000 jurisdictional minimum, despite that the complaint alleged bad faith, punitive damages and attorney’s fees and the plaintiff had apparently incurred medical expenses of some $55,000.

  • 4/27/2017

A Nevada federal district court denied an insurer’s motion for judgment on the pleadings, holding that a refusal to accept a policy limits settlement demand on a claim that was likely to exceed the policy’s limits and included a full release of all claims was not objectively reasonable.

  • 4/27/2017

The Ninth Circuit Court of Appeals issued an unpublished decision holding that property damage to a water project was the result of the insured general contractor’s defective work on the property and therefore barred by the standard property damage exclusions.

  • 4/27/2017

In an unpublished decision, the Ninth Circuit held that an insurer’s negligent failure to timely accept a policy limits settlement demand did not constitute unreasonable conduct in violation of the implied duty to settle.

  • 4/27/2017

In an unpublished decision, the Ninth Circuit affirmed a district court finding that an insurer owed no duty to indemnify because its insured entered into a settlement agreement without first obtaining the insurer’s written consent.

  • 4/27/2017

In an unpublished decision, the Ninth Circuit concluded that claims brought by FDIC in its capacity as receiver for an insured bank against the bank’s former officers were not covered by the bank’s professional liability policy because of an exclusion barring claims brought by any receiver of the company.

  • 4/27/2017

The District Court for the Northern District of California refused to apply a Mold Exclusion that attempted to preclude the duty to defend where even a portion of the claims against the insured alleged mold damage.

  • 4/27/2017

The District Court for the Eastern District of California held that a Used Tire Exclusion set forth on a separate page of the policy, and which was titled in all caps and bold font, and plainly stated there was no coverage for used tires sold by the insured, was conspicuous and clear.

  • 4/27/2017

A California federal district court held that no personal and advertising injury coverage was available to the insured for an underlying action alleging a mortgage modification scam because the policy’s financial services exclusion unambiguously barred coverage for the management and administration of mortgage plans. Insurance Code section 533 also applied.

  • 4/27/2017

The District Court for the Eastern District of California held that the insured’s claim that it was too busy to respond to the complaint for declaratory relief due to the complex nature of the underlying litigation is not excusable neglect and will not serve as a basis to set aside a default.

  • 4/27/2017

California’s Second District Court of Appeal held that when a policy expressly provides coverage for litigation expenses on appeal, an exclusion requiring repayment to the insurer upon a “final determination” of the insured’s culpability applies only after the insured’s direct appeals have been exhausted.

  • 4/27/2017

The Ninth Circuit Court of Appeals affirmed a trial verdict finding that an insurer breached its duty to defend, and evidence that the insurer failed to conduct a proper investigation supported denial of its motion for summary judgment on the issue of bad faith.

  • 4/27/2017

A California Court of Appeal found that the insured’s regular use of her employer’s vehicle precluded coverage under her auto policy.

  • 4/27/2017

The California Supreme Court held that the Insurance Commissioner's regulation regarding replacement cost estimates for homeowners insurance was a proper exercise of the Commissioner’s authority.

  • 4/27/2017

The Ninth Circuit Court of Appeals held that an excess insurer that refused to consent to an insured’s settlement or take over the defense was liable for breach of contract and bad faith.

  • 4/27/2017

In a declaratory relief action in which a bad faith counterclaim had been asserted, a federal district court in Nevada granted the insured’s motion to compel the testimony of the insurer’s outside coverage counsel and an unredacated copy of her work product. The insurer had not raised advice of counsel as a defense, but its claim adjuster testified that she made the decision to deny coverage in reliance on coverage counsel’s recommendation.

  • 4/26/2017

We are going to talk about fluoride.  Fluoride is found naturally in soil, water, foods, and several minerals, such as fluorapatite and fluorite. Fluoride concentration in seawater averages 1.3 ppm (parts per million), which is probably good for maintaining a shark’s teeth free from cavities. In fresh water supplies the natural range is typically 0.01 to 0.3, which helps strengthen trout’s teeth so they can fight back when Yogi Bear is looking for dinner. (Do trout have teeth?) Groundwater can contain much higher levels, however. Fluoride is the 13th most abundant element on the earth's crust. (Good fact to drop at a bar…will certainly get a conversation going.)

  • 4/26/2017

Dramatic changes to Rule 34(b) which a) brought specificity to the requests for production of documents and b) attempted to do away with the tactic of objecting broadly to requests for production while, at the same time, producing some documents.  This particular tactic leaves the propounding party guessing as to whether relevant information was withheld on the basis of the boilerplate objections.  The new version of Rule 34 puts an end to that practice.

  • 4/26/2017

The U.S. Court of Appeals for the Fourth Circuit recently held that the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA) discovery rule, which allows for federal preemption of state statutes of limitations, only applies when the operative facts of the state action can give rise to a cause of action under CERCLA.  Blankenship v. Consolidation Coal Company 2017 WL 937467.  In 1994, Defendant’s mining operations were being hampered by an accumulation of water, so Defendant reached an agreement with Beatrice Mine, which had been exhausted in 1972, to transfer the water from their mine to Beatrice Mine.  Defendant applied for a revision of their mining permit with the Virginia Department of Mines, Minerals, and Energy.  Defendant also published its notices of application in the local newspaper and filed the application for public view at the local courthouse.  The application was approved and the “dewatering” activities ended in 2003. 

  • 4/26/2017

In In Re G-I Holdings, Inc., 564 B.R. 217 (Bankr. D.N.J. Dec. 21, 2016), the Bankruptcy Court was asked to consider whether the confirmed chapter 11 plan discharged liability under an assumed Indemnification Agreement.  Plaintiffs filed a complaint in state court, asserting that, pursuant to the Indemnification Agreement, two companies who had emerged from bankruptcy were required to indemnify Plaintiffs for any costs or liabilities incurred in connection with the investigation and remediation of a superfund site.  

  • 4/26/2017

In a March 20, 2017 decision the Ninth Circuit Court of Appeals upheld the United States Environmental Protection Agency (EPA)’s final rule regarding reduction of regional haze resulting from operation of the coal-fired Navajo Generating Station (the Station) near Page, Arizona.  Yazzie v U.S. Environmental Protection Agency (9th Cir. 2017) 2017 WL 1046117.  In August 2014, after approximately five years of evaluation including participation and recommendations from several stakeholders, EPA issued its final rule for the Station.  A number of environmental groups petitioned arguing that EPA had failed to comply with the Clean Air Act (CAA) and its regulations in reaching EPA’s final rule.

  • 4/26/2017

In a March 20, 2017 decision the Ninth Circuit Court of Appeals upheld the United States Environmental Protection Agency (EPA)’s Federal Implementation Plan (FIP) under the Clean Air Act (CAA) for the coal-fired Navajo Generating Station (the Station) near Page, Arizona.  Hopi Tribe v U.S. Environmental Protection Agency (9th Cir. 2017) 2017 WL 1046116.  In August 2014, after approximately five years of evaluation, the EPA issued its FIP.  The Hopi Tribe (the Tribe) petitioned for review of the FIP arguing that it was not adequately consulted about its interests before the FIP was promulgated.  The Tribe specifically objected to the proposed closure of the Station in 2044.

  • 4/26/2017

The California Environmental Quality Act (CEQA) and the regulations implementing it embody California’s strong public policy of protecting the environment.  The basic purposes of CEQA are to (1) Inform governmental decision makers and the public about potential, significant environmental effects of proposed activities; (2) Identify ways that that environmental damage can be avoided or significantly reduced; (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the government agency finds the changes to be feasible; and (4) Disclose to the public the reasons why a governmental agency approved the  project in the manner the agency chose if significant environmental impacts are involved. 

  • 4/26/2017

For over a hundred years, the U.S. Supreme Court has made clear that when the United States withdraws its land from the public domain and reserves it for a federal purpose, the government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.  Winters v. United States, 207 U.S. 564 (1908).  In what has become known as the Winters doctrine, federal reserved water rights are directly applicable to Indian reservations and other federal enclaves, encompassing water rights in navigable and non-navigable streams.