USA – CALIFORNIA Law and Practice Contributed by: Kim Bick, Alan Bick, Corrie Plant and Tyler Alexander, Bick Law LLP
environmental effects. Like CEQA review for state pro- jects, NEPA review is broadly required for actions on federal public lands – like mining, timber harvesting, or special permitted events – or that require federal funding or approval. 4.3 Regulators’ Approach to Policy and Enforcement California environmental law and regulation is broadly protective of the health and safety of the people of California. Though on an upward trajectory, California cities have poor air quality compared to the rest of the United States. California has been experiencing longer periods of drought due to climate change. In response, the California legislature has passed ambi- tious legislation aimed at improving the environmental quality in California, including: • AB 32 – a landmark 2006 law that required Califor- nia to reduce climate pollutants to 1990 levels by 2020 – a goal which was met early; • SB 32 – requires California to reduce climate pol- lutants to 40% below 1990 levels by 2030; and • Cal. Health & Safety Code § 40001 – provides state standards for air quality and authorises state and local agencies to regulate to achieve those stand- ards. Enforcement priorities can vary by region or by year- to-year, but there has been a general trend towards increased enforcement regarding GHG emissions (including against improper generation, storage, transport, or use of products containing solvents that create GHGs) and improper waste disposal. If California agencies or District Attorneys initiate formal enforcement proceedings, they tend to seek signifi- Whether an environmental permit may be transferred depends on the issuing body, the permit’s terms, and statutory limits on transfer. Under California Water Code § 1702, a permission for a transfer may only be granted if the petitioner shows that the change will not harm other water users or public trust resources. In contrast, under the South Coast Air Quality Manage- ment District’s rules, permits to operate equipment cant penalties to incentivise compliance. 4.4 Transferring Permits/Approvals
may not be transferred as part of a sale and the new owner must apply for a change of ownership. Even where regulation or law allows for transfer, indi- vidual permit terms apply and may limit or prohibit assignment or transfer. 4.5 Consequences of Breaching Permits/ Approvals California agencies typically seek to address permit non-compliance through the administrative process. For example, if an inspection by the local Air Quality Management District finds that a business is not oper- ating in accordance with its permit terms or applicable clean air rules and regulations, it may issue a Notice to Comply either requesting additional information or instructing the entity to correct a minor violation. For more serious non-compliance, the Air District may issue a Notice of Violation, subjecting the entity to daily penalties. If a business is unable to move into compliance immediately, the business may petition for a variance from a hearing board in the interim. Civil and criminal enforcement proceedings are also pos- sible based on the severity of the violation. A similar process governs the compliance with stormwater per- mits under the Clean Water Act, which is implemented by the State Water Resources Control Board and the local regional water boards. For permits that are subject to discretionary or man- datory renewals, compliance with the existing per- mit’s terms and conditions is a common condition for renewal. Thus, failing to comply with a permit’s terms and conditions may result in the denial of future per- mits.
5. Environmental Liability 5.1 Key Types of Liability
California entities that breach environmental laws may face administrative, civil, or criminal proceed- ings. Liability is often strict and limited to enumerated defences. Statutory penalties may be severe, such as daily penalties of USD15,000 per day under Cal. Water Code § 13350, up to USD70,000 per violation under Cal. Health & Safety Code § 25189, and with enhanced penalties for intentional bad acts. Criminal
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