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CP&DR News Briefs, December 30, 2014: 9th Circuit Sides with Federal Regulators; New Laws; Plastic Bag Ban Challenge May Qualify

Martha Bridegam on
Dec 29, 2014

Defending a federal agency's discretionary authority, the Ninth Circuit Court of Appeals on December 22 upheld a 2009 restriction on water pumping meant to protect chinook salmon and other fish in the Sacramento-San Joaquin Delta.

The ruling was a victory for the National Marine Fisheries Service (NMFS) and other federal agencies, and for environmental groups backing the federal position. It was a defeat for Southern California water agencies that had challenged the restriction, including the San Luis & Delta-Mendota Water Authority, Westlands Water District, Metropolitan Water District of Southern California, Kern County Water Agency and State Water Contractors, backed by the California Department of Water Resources as intervenor.

Judge Richard Tallman issued a ruminative, painstakingly illustrated and contextualized opinion. It quoted John Steinbeck's East of Eden on the heartbreaking effects of dry conditions in California farm country, yet concluded: "People need water, but so do fish." Tallman was joined by the other members of the three-judge panel: Judge Johnnie Rawlinson and temporarily sitting district judge Thomas Rice.

As the opinion's first footnote explains, the ruling was separate from, but "informed" by, the Delta Smelt opinion issued earlier this year by Judge Jay Bybee in San Luis & Delta Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014). That ruling also emphasized deference to agency discretion in reaching scientific conclusions. (See The two opinions had one panel member, Judge Rawlinson, in common.

The L.A. Times' Bettina Boxall has more details, including suggestions that the recent opinion was an unsurprising sequel to the Delta Smelt opinion and that, although some of the water agencies have sought review of the smelt opinion by the U.S. Supreme Court, the high court is unlikely to take up the matter.
The case is San Luis & Delta-Mendota Water Authority v. Locke.

Bills Effective January 1, 2015: a Rundown of Rundowns

It's surprisingly tough to find a public list of all new laws taking effect January 1, 2015, or of all those affecting land use. Local papers will offer grab bags of important new provisions on drivers' licenses, drug sentencing, sick leave, and prevention of cruelty to interns. But about land use? Here are some sources:

The League of California Cities' 2014 Legislative Report provides a 208-page description of new statutes relevant to city officials, placed in the League's context, as of November 2014.

All bill texts and histories can be found on the Legislature's official site, and laws likely to take effect January 1, 2015 can be found by searching for bills from the 2013-14 session bearing the 2014 statute year. Unless another date is specified in its text, a new law is likely, but not certain, to take effect on the January 1 following its enactment. The Littler employer-side law firm reports Governor Jerry Brown received 1,073 bills from the Legislature and signed 931 in 2014.

For new laws specific to land use, many that were in the last crop to win approval are in CP&DR's own summary of the Governor's late-September signing decisions affecting California land use, and in Governor Brown's September signing and veto announcements. Another important land use law collection, excerpted as part of the CP&DR summary, is the "Greatest Hits" list prepared by the Senate Committee on Governance and Finance. It shows the whole year's complement of major bills handled by that committee.

Among other legislative tallies, the Housing California list shows fates of bills affecting homelessness, housing funding, and landlord-tenant relations. (Per apparent error, that site shows AB 1537, on default housing densities in Marin County, as having been vetoed. In fact that bill was signed into law.)

Some bills from 2014 are already in effect -- notably the June budget bills, which enacted policy legislation as well as spending decisions. For example, SB 861 imposed new safety and cleanup rules on the petroleum industry and gave the Coastal Commission's staff new enforcement authority to impose fines administratively. SB 862 extensively redistributed the state's cap-and-trade revenues and created the new Affordable Housing and Sustainable Communities cap-and-trade program. (The Governor's signing announcement on the June budget bills lists the rest of the bill numbers.)

Phase-in provisions apply in some cases, e.g. the SB 270 statewide ban on single-use plastic carryout bags has phase-in dates running from January 1, 2015 to as late as 2020.

Plastic Bag Promoters File Signatures to Challenge Statewide Ban

Opponents of recently enacted SB 270 said they had submitted more than enough signatures December 29 to qualify a statewide ballot challenge against California's new ban on single-use plastic bags. The petition's sponsors, the American Progressive Bag Alliance, had to collect at least 504,760 California voters' signatures to qualify the measure. The Sacramento Bee reported the group claimed more than 800,000 signatures.

County elections officials have eight days from submission of the signatures to verify them. The League of California Cities wrote that if the measure qualified it would prevent implementation of SB 270 until a statewide election in 2016.

The Sacramento Business Journal reported earlier that the chief funder of the campaign was bag manufacturer Hilex Poly.

SB 270 passed the Legislature in August after fierce multimedia and legislative lobbying and a last-minute reversal by the United Food and Commercial Workers (see

Many localities have created their own plastic bag restrictions, in part because SB 270 has a grandfather clause for existing local laws on the subject. Governor Jerry Brown delayed signing the bill until September 30 but signed it with a high-visibility statement announcing the first statewide ban of its kind.

Kruger Confirmed to State Supreme Court

Leondra Kruger, a respected litigator for the U.S. Justice Department who has argued a dozen cases before the U.S. Supreme Court, was confirmed to serve on the California State Supreme Court by the state Commission on Judicial Appointments. The Sacramento Bee described the commission's review as a "brief, friendly hearing" though it did include a query from Chief Justice Tani Cantil-Sakauye regarding her limited practice experience in California.

A Month for Large Projects

The news this month was thick with major construction plans, largely residential, in and around California urban areas. A few of the stories:


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