Legal News You Can Use

By Stephen T. Holzer

California environmental regulators suffer 2^nd defeat in a month

            In this column a few weeks ago I wrote about a San Francisco Court’s invalidation of regulations under AB 32 (the “Global Warming Solutions Act”) because the California Air Resources Board had failed to do an adequate study of the regulations’ effects under other provisions of law. Now a Sacramento Appellate Court has dealt State regulatory enforcers a second blow.

            The Appellate Court invalidated State Lands Commission regulations designed to prohibit  beachfront private property owners from building on publicly-owned tidelands.  The Commission had promulgated the regulations without any public hearings under the Administrative Procedure Act; the Commission contended the regulations were exempt from the Act’s notice requirement because the regulations were simply enforcing the unambiguous mandate of State statutory law.

            However, the Appellate Court disagreed, noting that the very definition of publicly-owned tidelands requires interpretation, thereby making the proposed regulations subject to public comment.  Pending properly following required notice and comment rules, the Court said, the regulations cannot be enforced.

            The AB 32 and tidelands cases arguably illustrate that we have become subject to so many laws and regulations that they are now tripping over each other.  At a time when the State has a $25 billion deficit, it is a shame that State agencies’ apparent failure to understand the law is driving up litigation expense and thus making the pruning of the deficit so much harder.

Will tobacco tax hikes be on June ballot?

            A measure to raise tobacco taxes by over 100% has already qualified for the ballot in February 2012.  Apparently, if Governor Brown can convince the Legislature to put his tax-increase extension measure on the June 2011 ballot, the tobacco tax-increase measure can be moved up by the Secretary of State to be voted on in June as well.

            Brown now appears to be two votes short in each chamber of the Legislature insofar as getting his tax-increase extension measure approved for the June ballot is concerned.

San Francisco Smells

            San Francisco, always known for sense of progressiveness, is now finding that such sense conflicts with its sense of smell.

            The City has heavily pushed low-flow toilets in order to preserve water use.  Now it turns out that the low flow of water has resulted in sludge backing up in the City’s sewer pipes.  The sludge back up, in turn, has caused a rotten-egg type smell to permeate parts of the city.

            To combat this smell, among other things, the City is spending $14 million for a supply of bleach to disinfect the sewer water.  However, this move has itself generated controversy.  Some environmentalists are arguing that, rather than pouring bleach into the sewers, the City should find a way to break down the bacteria naturally.

            In the meantime, the water-saving smell-a-thon continues. 

Stephen Holzer practices law at the Encino law firm of Lewitt Hackman Shapiro Marshall & Harlan, specializing in business litigation and environmental matters, and is the Immediate Past Chair of the United Chambers of Commerce of the San Fernando Valley.  He can be reached at sholzer@lewitthackman.com or 818-907-3299 with any questions about this column.