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cannabis real estateThroughout 2018, we have discussed the implications of the legalization of marijuana on the real estate industry. In this final year-end edition, we provide a few important considerations and recommendations for property owners, landlords and tenants when purchasing or leasing green property.

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The California Natural Resources Agency (CNRA) recently posted final adopted text for amendments to the CEQA Guidelines.  The result of over five years of development efforts by the Governor’s Office of Planning & Research and CNRA, the amendments are the most comprehensive update to the CEQA Guidelines since 1998.  In “Natural Resources Agency Finalizes Updates to the CEQA Guidelines,” Pillsbury environmental attorneys Norman F. Carlin, Kevin Ashe and Eric Moorman explore the wide range of issues covered in the amendments, including the new Vehicle-Miles-Traveled (VMT) methodology for analyzing transportation impacts; use of regulatory standards as significance thresholds; environmental baselines; and numerous procedural and technical improvements.

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On November 23, the latest National Climate Assessment, Fourth National Climate Assessment (NCA4), was released by the U.S. Global Research Program, as required by the Clean Air Act. The Assessment, comprising three volumes and 1600 pages, contains some rather bleak findings which the Report usefully summarizes. Here’s a description of these findings.

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On November 27, 2018, the U.S. Supreme Court issued a ruling vacating and remanding the U.S. Court of Appeals for the Fifth Circuit’s decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The Court of Appeals had affirmed the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) properly designated, under the Endangered Species Act (ESA), a large tract of land located in Louisiana as a critical habitat suitable for the endangered Dusky Gopher Frog, which currently is only found in Mississippi. This is an important ruling under the ESA, and it will be very interesting to see what happens when the case is returned to the Fifth Circuit.

The Louisiana land is owned by the Weyerhaeuser Company and a group of family landowners, who have challenged these decisions of the Service and the lower federal courts. Weyerhaeuser Company v. United States Fish and Wildlife Service was argued on October 1, 2018. Justice Kavanaugh did not participate because he was not on the Court at the time of the oral argument. Continue reading

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This update follows an earlier post discussing Proposition 10’s potential impacts and pre-election prospects, available here.

What happened on Election Day
Despite California’s sky-high rents, voters just rejected a ballot measure that would have allowed cities to expand rent control. With 100% of precincts reporting, 61.7% of voters opposed Prop 10, while 38.3% voted to approve the measure. The ballot measure only achieved a majority in one of California’s fifty-eight counties, San Francisco. In Los Angeles County, 47.2% of voters supported the proposition. However, the ballot measure fared substantially worse in Sacramento, San Diego, Fresno and Orange counties. These results highlight the measure’s widespread unpopularity.

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On November 7, the Office of the Attorney General issued a Memorandum re: Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities. This Memorandum is based largely on federalism concerns. It is anticipated that the policy on consent decrees with state and local governments is likely to have an impact on environmental enforcement actions.

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Pillsbury attorneys Stephan E. Becker, Charles F. Donley II, Emily B. Erlingsson, Brian E. Finch, Aimee P. Ghosh, Meghan C. Hammond, Gerry Hinkley, Laura E. Jennings, The Honorable Gregory H. Laughlin, Jeffrey S. Merrifield, Elizabeth V. Moeller, Matthew Oresman, Craig J. Saperstein, Edward W. Sauer, and  Deborah S. Thoren-Peden discuss the 2018 Midterm Election and assess some of the top issues where the incoming 116th Congress will likely be most active, including:

  • Congressional Investigations
  • Financial Services
  • Tax Reform
  • Cybersecurity and Privacy
  • Foreign Policy, International Trade, and Sanctions
  • Energy and the Environment
  • Transportation and Aviation
  • Health Care
  • State and Local Government
  • Compliance, Ethics, and Campaign Reform

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Pillsbury energy partner Rob James and Environmental senior associate Stella Pulman co-authored Energy 2019: USA, in which they provide an overview of the current U.S. energy marketplace and discuss

  • Ongoing incentives at the state level for offshore wind, other forms of renewable power, and electric storage;
  • Impacts of dueling tariffs and trade restrictions on the energy industry;
  • Reversals of federal policy on greenhouse gas emissions and on lands open to hydrocarbon development;
  • The Federal Energy Regulatory Commission’s decision in Calpine v. PJM Interconnection and its consequences for wholesale electricity markets; and
  • Cybersecurity and blockchain developments affecting the national grid.

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On October 30, in Sinnok, et al. v. State of Alaska, et al., the Superior Court, sitting in Anchorage, AK, granted the state’s motion to dismiss the plaintiffs’ (a “group of Alaska youth ages 5 to 20”) complaints that the state has contributed to climate change through its actions with respect to fossil fuels and carbon emissions. The plaintiffs sought injunctive relief in the form of a court order to the state to prepare an accounting of carbon emissions and to create a climate recovery plan. They also sought a declaratory ruling that the state’s actions violated their fundamental rights to a “stable climate system.”

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On September 30, the U.S. District Court for the District of Massachusetts issued a ruling dismissing claims that the operation of a municipal waste landfill violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) provisions making actionable any “substantial endangerment to human health and the environment.” The case is Toxics Action Center v. Casella Waste Sys., Inc., et al..

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