Moyer Interviewed on Impact of Supreme Court Environmental Law Decision
“California Court Ruling Changes How Environmental Impact Measured”Platts Commodity News
March 16, 2010 – Craig A. Moyer, chair of Manatt’s Land, Environment & Energy Division, provided analysis for a Platts Commodity News article on a March 15, 2010 California Supreme Court opinion with broad environmental impact. The Court’s ruling that a regional air quality agency erred in not preparing a full environmental impact report for an upgrade at ConocoPhillips' 139,000 b/d Wilmington refinery will, according to the article, change the way officials assess the environmental impact of such projects under state law.
The decision has implications that "go well beyond the South Coast, maybe beyond California, but certainly within the state," Moyer said.
The article reports that the project, an upgrade to allow the refinery to produce low-sulfur diesel fuels, was granted a permit in 2004 by the South Coast Air Quality Management District after officials concluded it would not have a significant effect on the environment, since any increase in emissions was within previously permitted levels.
Environmental groups and others joined to file suit against the district, however, claiming it should have required a full environmental impact review.
The refinery is located near commercial, recreational and residential neighborhoods.
The company argued that a full review wasn't necessary because the planned use of the existing equipment was within that equipment's maximum permitted capacity.
However, the decision will require officials to consider existing physical conditions as the baseline for measuring a project's environmental effects, including actual historical emission levels, instead of the maximum permitted operating capacity of the equipment - even if the equipment is operating below the permitted capacity.
"Everyone uses this permitted limit as a baseline," Moyer said, remarking on the impact of the ruling.
Given the ruling, "Anytime you increase over your historic limit, you'll need to conduct a full environmental review. And how do you establish a baseline? The court gave very little guidance," he said.
Moyer told Platts that the ruling will probably lead to more mitigation requirements for projects generally.
"If a project didn't have adverse environmental consequences, you didn't have to worry about offsets," Moyer said, adding that the ruling, with its change to how baselines are set and thus to how a project's impact on its environment is measured, will lead to more findings of adverse impacts.
"So [the ruling will result in] increased mitigation [requirements], and the biggest area that will be hit is the air," he said.
"Depending on where I am, if I want to add 100 pounds [of a pollutant] to the air, I have to offset 150 pounds. That will increase costs, and frankly there are not a whole lot of offsets available. So the mitigation issue is huge."
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