At trial, Caltrans’ appraiser asserted that the partial taking had caused no severance damages.  The owner’s appraiser, Michael Waldron, testified that Caltrans’ proposed storm drain improvements would cause substantial severance damages to the remainder.  The jury awarded $1,750,000 in severance damages, plus significant increases in value for each of the parcels taken by Caltrans. (People, acting by and through the Dept. of Trans. v. Smurfit-Stone Container Enterprises, Inc., et al., LASC Case No. BC433220.)

The Supreme Court disagreed, and in a unanimous decision, declared that since compliance orders constitute “final agency action” for the purposes of the Administrative Procedure Act, such orders may be challenged under that Act, as plaintiffs had no other adequate remedy at law. Furthermore, the Supreme Court strongly rejected EPA’s interpretation that the CWA precluded such pre-enforcement review, finding “no reason to think that the CWA was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”

EPA issues similar enforcement orders under other statutes with the understanding that these orders are not subject to pre-enforcement judicial review. Indeed, the lack of pre-enforcement judicial review is one of the more significant arrows in EPA’s compliance quiver, especially given the threat of significant penalties for failing to comply with an order. The Supreme Court’s decision is limited to the Clean Water Act, and the rationale likely would not extend to CERCLA, since CERCLA expressly prohibits pre-enforcement review, and courts have rejected similar challenges to CERCLA orders. However, it does raise an interesting question regarding orders issued under RCRA.

Mr. Langa has been identified as a rising star in the field of environmental law each and every year since his initial eligibility for the honor in 2006.  Super Lawyers selects attorneys to its Rising Stars list using a rigorous, multiphase rating process, and no more than 2.5% of lawyers in California are named to the Rising Stars list.

In California Redevelopment Association v. Matosantos (S194861, December 29. 2011) 2011 WL 6822391, the Supreme Court considered the fate of two bills passed in conjunction at the urging of Governor Jerry Brown: AB 1X 26 and AB 1X 27.  The first bill, AB 1X 26, eliminated redevelopment agencies, while the second bill, AB 1X 27, reinstated those agencies, provided that the agencies made specified payments to local school districts.

As to AB 1X 26, the Court held that because the Legislature created redevelopment agencies, they also had the power to eliminate them: “What the Legislature has enacted, it may repeal.”

The compromise bill, AB 1X 27, was held by the Court to violate Proposition 22, passed in November 2010, which forbids shifting of redevelopment agency funds to the State.

Redevelopment agencies use property tax money to provide incentives for developers to invest in and develop “blighted” areas of their cities.  There has been much debate on their effectiveness.  Proponents claim that the agencies are vital tools to improve neighborhoods, and to build amenities that would not otherwise exist.  Critics claim that the agencies merely use public money to subsidize the for-profit projects of private developers.

The repercussions of this decision will be far-reaching. The Court has set a deadline of February 1, 2012 for all redevelopment agencies to be dissolved. Although any obligation that the agencies incurred before January 1, 2011 will be honored, many deals and projects currently planned, or in negotiation, may be abandoned or responsibilities transferred to other public entities.

Many redevelopment agencies, sensing the prevailing winds, attempted to transfer funds and assets to their cities and counties, in the event that the redevelopment agencies should meet their legislative demise.  However, AB 1X 27 includes a “claw-back” provision, which allows the State to rescind such deals and reclaim those assets.

Immediate fallout from the Supreme Court’s decision occurred in the City of Los Angeles, which voted on January 11, 2012 to jettison its redevelopment agency, as the City could not afford to absorb the costs of redevelopment activities or the agency’s many employees.  Dozens of projects, incuing new housing, parks and infrastructure are now threatened, and developers are warning the City that it may be sued if deals are not honored.

Efforts are now underway by the California Redevelopment Association and the League of California Cities to introduce legislation that would restore redevelopment agencies in some form.  One proposal seeks to extend the shutdown deadline until April 15.  Legislators less hospitable to the idea of redevelopment agencies have suggested auctioning off the agencies’ assets and giving the money to cities for use in economic development.  However, with state funds scarce in a lagging economic climate, redevelopment agencies, may face an uphill battle to continue their existence.

To obtain these CERCLA landowner liability protections (LLP) under these provisions (as well as the similar innocent landowner protection), a property owner must comply with certain pre-acquisition and post-acquisition obligations. The pre-acquisition obligation is primarily a requirement that the purchaser conduct “all appropriate inquiry,” and this requirement has been detailed in regulations promulgated by EPA. (See, 40 CFR Part 312; ASTM 1527 also sets forth guidelines relating to this inquiry.)

However, EPA has not promulgated regulations regarding the post-acquisition “continuing obligations” detailing what an owner must do to maintain the LLP after acquisition. Indeed the CERCLA amendments did not authorize EPA to promulgate such rules. Thus, the ASTM has stepped into the vacuum and prepared and issued ASTM E2790 addressing these continuing obligations.

As described by ASTM, this standard is “intended for use on a voluntary basis primarily by parties who desire to satisfy continuing obligations…. As such, this guide provides information and suggested procedures that could be useful to persons who wish to assert a defense to CERCLA liability and to establish one of the LLPs.” The ASTM standards are a helpful tool, but they are not statutory, and further, as also acknowledged by ASTM, “Users wishing to establish CERCLA LLPs should be aware that the continuing obligations covered by this guide comprise only part of CERCLA’s statutory eligibility requirements for LLPs.” Nevertheless, the ASTM is especially timely given the rise of cases involving disputes about whether an LLP applies based upon the owner’s alleged failure to satisfy the continuing obligations. See, e.g., Ashley II of Charleston LLC v. PCS Nitrogen, Inc., 791 F. Supp.2d 431, 500-01 (D.S.C. 2011), appeal pending (4th Cir.) [Plaintiff failed to exercise appropriate care and therefore failed to take reasonable steps.]; 3000 E. Imperial v. Robertshaw Controls Co., 2010 U.S. Dist. LEXIS 138661 (C.D. Cal. Dec. 29, 2010) appeal pending (9th Cir.) [Plaintiff properly took reasonable steps.].

RSLs are an important tool to utilize in requesting and obtaining closure of environmentally impacted sites from regulatory agencies; however, they are but one standard. Depending upon the site, a practitioner must be aware of the relevant and applicable Federal, State, and local standards for soil, soil vapor, groundwater, water, and air.

Mr. Langa was named a rising star in the field of environmental law in 2006, 2007, 2008, 2009, 2010, and again in 2011.  Super Lawyers selects attorneys to its Rising Stars list using a rigorous, multiphase rating process, and no more than 2.5% of lawyers in California are named to the Rising Stars list.

If you haven’t been following the proposed revisions to the FTC’s Green Guides, you might want to take a look at the proposed revisions. DDSF Partner Jennifer Taggart gave a presentation on the impact of the proposed revisions entitled Pretty Green Liars at the Green Legal Matters Conference last October.

The panel will tackle parenting issues in this rapidly changing environment. Our modern world is full of new conveniences, but they bring a whole host of challenging and often avoidable perils. The expert panel will discuss modern safety regulations, exposure to hazards and toxins, educational toys that inhibit development, online safety, and more.

Also joining Jennifer will be Robin Sax, bestselling author of Predators and Child Molesters: A Sex Crimes D.A. Answers 100 of the Most Asked Questions. Robin is a former Los Angeles County Prosecutor who specialized in felony cases including sex crimes and domestic violence. She is a sought after speaker on safety, crime, pop culture and the criminal justice system.

Dr. Jenn Berman will also participate in the panel. Jenn is a Marriage, Family and Child Therapist in private practice in Los Angeles. She has apppeared as a psychological expert on hundreds of television shows. She is the best selling author of SuperBaby: 12 Ways to Give Your Child a Head Start in the First 3 Years and The A to Z Guide to Raising Happy Confident Kids.

Tanya Remer Altmann, MD FAAP, will also participate. Tanya is a leading medical authority, best selling author and media spokesperson. She is a UCLA trained pediatrician, designated spokesperson for the American Academy of Pediatrics, and a child health expert. Tanya is the author of Mommy Calls: Dr. Tanya Answers Parents’ Top 101 Questions About Babies and Toddlers.

The panel will be at 1 pm at Roxbury Park Community Center. For more information and registration, visit the Columbia Alumni Association of Southern California’s website.