Environmental Law

California environmental regulators suffer 2nd defeat in a month

By STEPHEN HOLZER

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.

            This posting is also appearing in my column for the Valley News Group of papers, San Fernando Valley, California.

Full post as published by Environmental Legal Blogs on March 03, 2011 (boomark / email).