USA – CALIFORNIA Law and Practice Contributed by: Kim Bick, Alan Bick, Corrie Plant and Tyler Alexander, Bick Law LLP
et seq., including over federal projects through the consistency determination process. Wildlife protections are also cross-jurisdictional. For example, through the Endangered Species Act, 16 U.S.C. § 1531 et seq., the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., and the Magnuson-Stevens Act, 16 U.S.C. § 1801 et seq., the federal government protects specific species and prevents commercial overfishing. On the state side, hunting and sport fish- ing – including on federal public lands within California and where not otherwise prohibited – are regulated by the California Department of Fish and Wildlife under the California Fish and Game Code. 3.2 Breaching Protections Violations of environmental law may result in severe consequences, including both civil and criminal sanc- tions by both federal and state authorities. At the fed- eral level, EPA Region 9 has enforcement authority for violations of the Clean Air Act, Clean Water Act, and for cleanup costs under CERCLA and RCRA. The US Fish and Wildlife Service’s Office of Law Enforcement prosecutes violations of federal wildlife protections. In California, CalEPA and local law enforcement agen- cies bring actions for civil or criminal violations of Cali- fornia environmental law. In addition, certain statutes like the Clean Water Act, 33 U.S.C. § 1365, or Prop 65, Cal. Health & Safety Code § 25249.7 (d), provide for citizen suits, potentially resulting in an award of attorney’s fees and costs to the prosecuting party in addition to civil penalties. 4. Environmental Incidents and Permits 4.1 Investigative and Access Powers CalEPA and its departments have broad statutory authority to investigate and prosecute violations of California environmental law. California Pub- lic Resources Code Section 21000 instructs public regulatory agencies to give “major consideration to preventing environmental damage”. Water Code Sec- tion 13304 vests both the regional and state water boards with the power to order cleanup or abatement of unlawful discharges into California waterways. Health & Safety Code Section 40716 charges regional
air quality management districts with both regulating and mitigating emissions. 4.2 Environmental Permits/Approvals Permits – and attendant environmental reviews – are broadly required in California. For example, the 35 regional air districts across California have regulatory authority over stationary sources of air pollution and may permit equipment that emits oxides of nitrogen, volatile organic compounds, sulphur dioxide, or par- ticulate matter. Denials of permits may be appealed to a hearing board so long as the applicant petitions for a hearing within 30 days of the denial (Cal. Health & Safety Code § 42302.1). If the denial is upheld, the applicant may seek judicial review through the writ of mandate process, Cal. Code of Civ. P. § 1094.5. Water use is another example of California’s exten- sive permitting regime. Under California law, water rights are usufructuary and limited by (i) the California constitution’s reasonableness requirement and (ii) the public trust doctrine. Appropriative water rights and related permits can only be issued by the State Water Resources Control Board. Denial of or restrictions on such permits can be challenged in superior courts through the writ of mandate process, Cal. Code of Civ. P. § 1094.5. The local regional water boards issue a variety of per- mits, such as waste discharge requirements (WDRs). If a regional water board denies a permit application, the applicant may appeal to the State Water Resourc- es Control Board within 30 days (Cal. Water Code § 13320). If the State Water Resources Control Board upholds the denial, the applicant may seek a writ of mandate in the Superior Court. Obtaining a permit in California often requires exten- sive environmental reviews. The California Environ- mental Quality Act (CEQA), Cal. Pub. Res. Code § 21000 et seq., requires environmental reviews for pro- jects undertaken by, funded by, or requiring a permit from a public agency and requires adopting reason- able mitigation measures to protect the environment. The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., requires federal agencies to take a “hard look” at the environmental impacts of major federal actions with the potential for significant
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