In a published decision filed March 30, 2022, the First District Court of Appeal (Division 5) reversed a trial court judgment upholding the reissued final environmental impact report (“RFEIR”) for a 44-single family residence project on a unique, species- and habitat- rich 32-acre site in the City of Livermore’s Garaventa Hills area.  Save the Hill Group v. City of Livermore (Lafferty Communities, Inc., Real Party in Interest) (2022) 76 Cal.App.5th 1092. Both the trial court and Court of Appeal agreed that the RFEIR’s analysis of the “no project” alternative was substantively inadequate, because it lacked information about the feasibility of purchase and preservation options that was necessary for the City Council to make an informed, reasoned decision, but the Court of Appeal disagreed with the trial court’s conclusion that Petitioner/Appellant Save the Hill’s failure to exhaust on this issue barred judicial consideration of it.  The Court of Appeal rejected Appellant’s remaining arguments that the RFEIR’s analysis and mitigation of the project’s vernal pool fairy shrimp (“VPFS”) and wetlands impacts were inadequate, and that its identified compensatory mitigation for permanent sensitive habitat loss was inadequate.  (In a brief concluding portion of the opinion that won’t be further discussed here, the Court also held Appellant had forfeited and lacked standing to raise the issue of City’s alleged mitigation obligations under two prior settlement agreements to which Appellant was not a party.)

Environmental justice has a natural connection to affordable housing programs.  It remains, however, a broad and somewhat elusive term.  There is no formal definition of environmental justice in US federal law.  However, relevant agencies have developed working descriptions for the term.  US EPA generally defines it as “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies,” while the US Department of Housing and Urban Development (HUD) describes the term as “ensuring equal protection from environmental and health hazards and providing equal and meaningful opportunity to participate in the decision-making process to achieve a healthy environment.”

The underlying concepts of fairness and equal protection adopted by these agencies originate in a number of civil rights statutes and subsequent legal mechanisms.  In particular, Title VI to the Civil Rights Act of 1964 established a federal benchmark for non-discrimination and it prohibits recipients of federal funding from discriminating based on race, color, or national origin in any program or activity.  A few years later, the Civil Rights Act of 1968 expanded upon this mandate.  The Fair Housing Act (Titles VIII and IX to the 1968 Act) prohibits discrimination as to the sale, rental, and financing of housing based on race, religion, national origin, and sex.

The standards are part of a global initiative to consolidate sustainability disclosures to help investors assess the value of companies.

By Paul A. Davies, Sarah Fortt, Nicola Higgs, Betty M. Huber, Michael D. Green, and James Bee

On 31 March 2022, the International Sustainability Standards Board (ISSB) released exposure drafts of the first two IFRS Sustainability Disclosure Standards (ISSB Standards) for public consultation. The ISSB indicated that its aim is for the complete set of ISSB Standards, once finalized, to provide a comprehensive global baseline of sustainability disclosures for investors in global capital markets to use when assessing the value of companies.

With just under a week remaining on the Cabinet Office’s online consultation process into the COVID-19 Public Inquiry, we explore the current stage of the Public Inquiry process, the next steps, and the importance of ensuring organisations and individuals have their say in the draft Terms of Reference (“TORs”) by 7 April 2022, which will shape the future for the Inquiry process.

In May 2021, the Prime Minister announced a Public Inquiry to examine the UK’s preparedness and response into the COVID-19 pandemic and to identify lessons to be learned, including a promise to put the “state’s actions under the microscope”. The Inquiry will be chaired by the Rt Hon Baroness Heather Hallett DBE, former Presiding Judge and Vice-President of the Court of Appeal Criminal Division, who has significant experience in dealing with a range of complex Inquests and Inquiries, including acting as the Coroner for the Inquests into the deaths of the victims of the London 7/7 bombings and chairing the Iraq Fatality Investigations, which inquired into allegations of unlawful killing by British Forces.

Regulation

­In a previous blog post, we noted that the International Sustainability Standards Board (ISSB) will shortly publish its proposed general sustainability-related and climate disclosure requirements.

On 31 March 2022, the ISSB published highly anticipated drafts of IFRS S1 General Requirements for Disclosure of Sustainability-related Financial Information (General Requirements Exposure Draft) and IFRS S2 Climate-related Disclosures (Climate Exposure Draft) for public consultation and comments. Each of the Exposure Drafts are accompanied by a ‘Basis for Conclusions’ and ‘Illustrative Guidance’ document. A high-level summary of the proposed requirements is available here.

On March 24, 2022, New York State Governor Kathy Hochul announced that New York, New Jersey, Connecticut and Massachusetts plan to submit a joint proposal to the United States Department of Energy (DOE) to secure a portion of the $8 billion set aside for regional hydrogen hubs when applications open in May. This alignment represents a critical step in advancing New York’s Climate Leadership and Community Protection Act (CLCPA) goal to reduce greenhouse gas emissions 85 percent by 2050.

States Continue to Implement Take-Back Programs for Aqueous Film Forming Foam

 This summer, Indiana joins a handful of states that have implemented “take-back” programs to collect and dispose of aqueous film forming foam (AFFF) containing per- and polyfuoroalkyl substances (PFAS).

 AFFF is a resilient foam generally designed to combat high-hazard fires. There are two types…