[Cross-posted from the Daily Journal]

By Richard M. Frank

The Supreme Court's recent climate change decision has been characterized by legal observers as "seismic" "transformational" and "a bombshell." All of those descriptions are apt.

The Court's 6-3 ruling holds that the U.S. Environmental Protection Agency lacks authority under the federal Clean Air Act to transition existing American power plants from fossil fuels to natural gas and, especially, to renewable energy sources. The decision will not have an immediate, dramatic effect. But long-term, the Court's ruling in West Virginia v. EPA, June 30, 2022 Daily Journal D.A.R. 6892, will severely cripple the federal government's ability to reduce America's greenhouse gas emissions and fulfill President Joe Biden's 2021 pledge to the world community that the U.S. will meet aggressive GHG reduction goals. And the new, radical constitutional doctrine the Court majority announces in rejecting EPA's GHG emission regulations promises to severely hamstring a wide array of federal regulatory agencies beyond EPA, and effectively to transfer considerable authority from the Executive Branch to the federal courts.

The West Virginia case has its origins in efforts by the Obama Administration to curb GHG emissions from "stationary sources" such as power plants. President Barack Obama's EPA promulgated its "Clean Power Plan" (PP) in 2015 to reduce substantially GHG emissions from American power plants the second largest contributor to the nation's overall GHG emissions output (behind only the transportation sector). Invoking CAA section 111(d), EPA proposed a complex set of regulatory mandates: some designed to improve pollution control technology of individual power plants and, far more controversially, industrywide reforms "beyond the fence line" to incentivize transition of coal-fired power plants to natural gas and ultimately, renewable energy sources.

EPA's CPP never took effect. The power industry, coal companies and a coalition of 27 "red" states immediately sued to halt its implementation. Remarkably - and in an unprecedented action - the U.S. Supreme Court in 2016 issued a "Shadow Docket" order preventing the CP from taking effect, before the lower federal courts even had an opportunity to consider its legality after full briefing and oral argument.

At that point, politics intervened. After the Trump Administration took office in 2017, it asked and the D.C. Circuit Court of Appeals agreed to hold the litigation in abeyance while the Trump EPA reconsidered the CPP. In 2019, the Trump Administration ultimately repealed the CPP, declaring that it exceeded EPA's legal authority under the CAA. In doing so, Trump's EPA advanced a novel constitutional doctrine long advocated by conservative scholars and law firms such as the Pacific Legal Foundation: the so-called "major questions doctrine." Under that theory, the Trump Administration argued, courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." The CPP, adopting an industry-wide approach to wean the power industry off its historic reliance on coal and natural gas in favor of renewable energy sources, presents such a "major question," asserted the Trump Administration. And, it maintained, in enacting CAA section 111(d) in 1970 Congress had not "spoken clearly" to delegate to EPA the regulation of GHG emissions in such a sweeping manner.

"Blue" states, including California, and environmental organizations promptly sued to challenge the Trump Administration's revocation of the CPP. Of critical importance, the red states that had previously challenged the Obama Administration's CPP intervened in the new lawsuit to help defend the Trump EPA's recission of the CPP. In early 2021 - on the last full day of Trump's term in office - the D.C. Circuit invalidated the Trump EPA's revocation of the CPP. It is from that ruling that the intervenor red states successfully sought review in the Supreme Court.

On the final day of the Court's just-concluded term, the Court ruled that the CPP was not authorized under the CAA. Chief Justice John Roberts majority opinion on behalf of the Court's 6-member conservative bloc first summarily rejected the Biden Administration's argument that certiorari had been improvidently granted: Biden's Solicitor General had advised the Court that it had no intention of restoring the CPP, and instead planned to develop its own regulatory program to reduce GHG emissions from U.S. power plants.

Turning to the merits, Chief Justice Roberts began by embracing the "major questions doctrine" that the former Trump Administration and its red state allies had advocated. West Virginia is, in fact, the first formal decision in Supreme Court history to explicitly adopt that principle. (The Court had alluded to the doctrine in a couple of earlier, per curiam orders issued in cases striking down the Biden Administration's COVID- prompted eviction moratorium and vaccination mandate for federal employees.)

Roberts proceeded to conclude that the federal government's efforts to comprehensively regulate GHG emissions from U.S. power plants have "vast economic and political significance;" that Congress, in enacting section 111(d) of the CAA, had not clearly indicated its intent to apply its delegated statutory authority to encompass industrywide power plant GHG reduction efforts by EPA; and that the relevant provisions of the CP therefore exceed EPA's statutory authority under the CAA and the majority's newly-minted major questions doctrine.

Justice Gorsuch penned a noteworthy concurring opinion, applauding the Court's support of the major questions doctrine and urging federal courts to apply it prospectively in a muscular fashion to curb perceived excesses of the federal administrative state." It will be interesting to see how many other members of the Court's conservative wing similarly embrace such an expansive application of the doctrine prospectively.

Justice Elena Kagan (joined by Justices Stephen Breyer and Sonia Sotomayor) issued a lengthy, pointed and to this observer - persuasive dissent. She castigated the majority's adoption of the major questions doctrine as an unprincipled creation by conservative justices who profess their belief in judicial restraint and a textual application of the Constitution. Kagan's dissent went on to analyze in considerable detail how and why EPA's interpretation of CAA section 111(d) is fully consonant with Congress' intent and delegated authority to EPA.

So, what are the short- and long-term implications of the Supreme Court's West Virginia v. EPA decision?

In the short term, it's back to the climate change drawing board for the Biden Administration. EPA was already exploring how to regulate GHG emissions from stationary sources under the CAA before last week's Supreme Court decision. President Biden has directed his EPA and Justice Department to confer on West Virginia's impact and return to the Oval Office with recommendations as to how to proceed. (One intriguing potential option is to utilize section 115 of the CAA; that provision allows EPA to regulate pollution emitted from U.S. sources that endangers public health and welfare in foreign nations. GG emissions would certainly seem to qualify.)

But let's be clear: West Virginia severely constrains the Biden Administration's regulatory options: the decision makes clear that EPA lacks the authority under CAA section 111(d) to regulate the power industry's GHG emissions on an industrywide, "outside the fence line" basis.

That leads to the related but important question: what about pursuing new climate change legislation from Congress? The short answer is that that's not going to happen in the foreseeable future. Climate change is only one of many issues on which Congress is hopelessly deadlocked and deeply factionalized. The justices, of course, know this as well as anyone.
So the majority's suggestion that Congress can simply resolve the issue by clarifying the CAA or enacting new climate change litigation is disingenuous.

Leaving aside the CAA and climate change, the majority's formal articulation and embrace of the major questions doctrine has profound, long-term implications for American constitutional and administrative law. It seems inevitable that the doctrine will be invoked in virtually every major litigation challenge to future federal regulatory initiatives - not just environmental programs, but also in public health, financial, civil rights, election, taxation and numerous other regulatory contexts. Among the biggest ambiguities created by West Virginia is what, exactly, makes a particular federal regulation sufficiently important, or "major," so as to trigger application of the doctrine? As Justice Kagan's dissent observes, the majority's option does not provide any real guidance.

Moreover, and especially in light of Congressional gridlock and political stalemate, the West Virginia decision significantly enhances the power of the federal judiciary at the expense of the Executive Branch. Without explicitly saying so, the case severely erodes separation of powers principles that the Constitutional framers considered so essential to the success of American democracy.

Finally, and ultimately most significantly, the West Virginia decision seriously undermines America's ability to reduce its disproportionately large share of global GHG emissions. As a result of the Court's decision, it's highly unlikely that the United States will be able to meet the ambitious GHG reduction goals President Biden pledged to meet at last year's global climate summit in Glasgow. That, in turn, greatly diminishes America's future ability to play a leadership role in the greatest environmental challenge of our time. And, worse still, it undermines the ability of the global community as a whole to prevent a climate catastrophe.

[Cross-posted from Daily Journal]

By Richard M. Frank

In 2021 the 9th U.S. Circuit Court of Appeals remained -- save only the U.S. Supreme Court -- the most important court in the United States when it comes to environmental law. This year the 9th Circuit also maintained its role as the most prodigious source of key environmental decisions of any federal appellate court -- issuing nearly one per week.

With apologies for any perceived sins of omission, here's my chronological list of the 9th Circuit's 10 most important environmental law decisions of 2021:

Juliana v. United States, 947 F.3d 1159 (Jan. 17, 2020) (rehearing en banc denied, Feb. 10,2021). Unquestionably the most closely watched 9th Circuit environmental case of 2021, Juliana involved a lawsuit brought against the federal government by a group of children and their guardian ad litem (renown climate scientist James Hansen). They claimed that the government's failure to take concrete steps to reduce U.S. greenhouse gas emissions violates the government's public trust-related obligations to future generations, as well as the plaintiffs' substantive due process rights. A divided three-judge panel ruled that the young plaintiffs lacked Article III standing to bring the lawsuit, reversing the district court. The third panel member wrote an impassioned dissent, arguing that the children did have constitutional standing, and that their substantive claims have legal merit. (The dissent had the better of this argument in my view.) Of critical importance, both the majority and dissenting opinions agreed that climate change is real and poses an existential threat to the planet. But their disagreement over the judiciary's proper role in addressing climate change makes for compelling reading. While the Juliana case itself is now final, its legacy remains: Related Juliana-type lawsuits remain pending in courts across the country.

United States v. Walker River Irrigation District, 986 F.3d 1197 (Jan. 28). This decision is the latest chapter in long-running federal court litigation over the Walker River (an interstate river with its source in California's Eastern Sierra that flows east into central Nevada and ultimately into Walker Lake). In a case whose facts closely mirror those of the California Supreme Court's iconic 1983 National Audubon Society public trust decision, Nevada local governments, Native American tribes and environmental groups argued that uncontrolled water diversions from the Walker River are destroying the ecosystem and environmental values of both the river and Walker Lake. They claimed that the diversions therefore violate the public trust doctrine. The 9th Circuit initially referred the dispute to the Nevada Supreme Court for a determination as to whether the public trust doctrine applies to constrain previously permitted water diversions in that state. After the Nevada court answered that question in the negative and returned the case to the 9th Circuit, many observers thought that the case there was over. They were mistaken. Instead, and in a partial victory for the public trust plaintiffs, the Court of Appeals remanded the lawsuit to federal district court, with instructions to allow the plaintiffs to pursue their public trust claims, with certain conditions.

City & County of Honolulu v. Sunoco LP, 2021 WL 1017392 (March 13). This case is one of many currently pending climate change lawsuits brought by state and local governments around the country. Originally filed in state courts, these lawsuits advance state common law theories against the fossil fuel industry. They seek money damages to reimburse the governments for their climate change-related response costs attributable to greenhouse gas emissions from the defendants' fossil fuel products. In the Honolulu case, a 9th Circuit panel denied defendants' motion to block the federal district court's remand of the litigation back to state court after the defendants had removed it to federal court. The Court of Appeals ruled that the industry had failed to demonstrate they would suffer irreparable harm if forced to litigate the case simultaneously in state and federal court. (It's unclear if this 9th Circuit decision will withstand the U.S. Supreme Court's potentially inconsistent ruling in the related case of BP P.L.C. v. Baltimore, 1412 S. Ct. 1532 (2021).

League of United Latin American Citizens v. Regan, 996 F.3d 673 (April 29). This is both an environmental justice and public health decision -- and an important, action-forcing one at that. It's the culmination of a long-running battle by civil rights and environmental groups to have the U.S. Environmental Protection Agency regulate the pesticide chlorpyrifos under federal environmental laws. Those efforts finally paid off: The 9th Circuit ruled that the EPA violated multiple federal environmental statutes by its longstanding evasion of its statutory duty to determine whether current tolerances of chlorpyrifos are safe. Its patience at an end, the Court of Appeals ordered the EPA to either publish such a finding or ban the pesticide within 60 days of its decision. The EPA ultimately opted to do the latter last summer.

Hardeman v. Monsanto Corp., 997 F.3d 941 (May 14). In another key toxics case, the 9thCircuit upheld a district court judgment that the Monsanto herbicide Roundup caused the plaintiff's cancer. A critical component of the Court of Appeals' decision was its holding that the plaintiff's failure-to-warn product liability claims were neither expressly nor impliedly preempted by the Federal Insecticide, Fungicide and Rodenticide Act.

National Pork Producers Council v. Ross, 6 F.4th 1021 (July 28). A growing subcategory of9th Circuit environmental jurisprudence involves the regulated community's invocation of various constitutional doctrines to block or narrow application of environmental and related regulatory programs. In National Pork Producers Council, an out-of-state trade group challenged the constitutionality of a California ballot initiative barring the sale of pork products in this state from improperly and inhumanely confined animals. The trade group argued that enforcement of this requirement against out-of-state pork producers violates dormant commerce clause principles by unduly burdening interstate commerce. The 9thCircuit rejected that claim, declaring the California initiative constitutional and enforceable against out-of-state companies. (In recent years the 9th Circuit has consistently rejected a series of dormant commerce clause-based challenges to numerous California environmental and animal welfare laws.)

Sackett v. Environmental Protection Agency, 8 F.4th 1075 (Aug. 16). If this case sounds familiar, it should: Sackett involves a long-running wetlands dispute between the federal government and an Idaho couple seeking to develop their property. The feds argue that a portion of the Sacketts' property constitutes wetlands under the Clean Water Act, and that the Sacketts were required to seek and obtain a permit under CWA Section 404 before developing their property. Previously, the 9th Circuit upheld the government's procedural argument, only to have the U.S. Supreme Court reverse in a 2012 decision. On remand and on the merits, the 9th Circuit this year ruled that the government's administrative proceedings properly found the Sacketts' property to contain wetlands. A 2022 return to the Supreme Court by the Sacketts seems quite possible.

Southwest Fair Housing Council v. Maricopa Domestic Water District, 9 F.4th 1177 (Aug.23). This "water justice" case involved an NGO's challenge to a local Arizona water district's policy requiring residents of public housing projects to pay deposits more than three times more than those paid by residents of non-public housing. The plaintiff claimed that policy was discriminatory and contravened the federal Fair Housing Act. Somewhat remarkably, the 9th Circuit rejected that argument, concluding that the district policy served legitimate business interests and that no equally effective but less discriminatory alternatives were shown to exist.

Association of Irritated Residents v. Environmental Protection Agency, 10 F.4th 937 (Aug.26). This citizen suit, brought under the federal Clean Air Act, challenged the Trump administration EPA's conditional approval of a proposed California plan to reduce ozone levels in the San Joaquin Valley. (The San Joaquin Valley suffers some of the poorest air quality in the entire U.S.) The Court of Appeals rejected the EPA's approval of the California plan as arbitrary and capricious, finding that the plan would result in only nominal ozone emission reductions. Moreover, opined the 9th Circuit, the CAA does not prohibit California's Enhanced Enforcement Activities Program, which in the Court of Appeals' view would substantially improve California's ozone reduction plan.

Center for Community Action v. Federal Aviation Administration, 2021 DJDAR 11864 (Nov.18). This National Environmental Policy Act case, involving the adequacy of the FAA's environmental analysis of an Amazon distribution center adjacent to the San Bernardino Airport, is unremarkable on its face. A divided 9th Circuit panel rejected an environmental group's NEPA challenge to the project, finding the FAA's environmental analysis legally adequate. But what's remarkable about the decision is the heated colloquy between the dissent -- authored by Judge Johnnie Rawlinson -- and the majority. In her dissent, Judge Rawlinson argued that the case "reeked of environmental racism," inasmuch as the area in which the project was proposed is (according to the EPA) an "extreme" non-attainment area for multiple air pollutants and populated primarily by people of color. Judge Rawlinson rhetorically asks: "Does anyone doubt that this Environmental Analysis would not see the light of day if this project were sited anywhere near the wealthy enclave where the multibillionaire owner of Amazon resides?" Perhaps unsurprisingly, the panel judges in the majority took umbrage at the dissent's pointed criticism; a concurring opinion attempted --without much success in my view -- to rebut the dissent's "environmental racism" claims. To my knowledge, this is the first time the term "environmental racism" has ever been used in a reported federal appellate opinion. Its invocation certainly produced judicial sparks and robust debate.

The dueling Center for Community Action opinions serve as a fitting, end-of-year bookend to the similarly impassioned and conflicting judicial views expressed in the 9th Circuit's Juliana case earlier this year.

[Cross-posted from CNN]

By Richard M. Frank

A cattle rancher in North Dakota has culled half his herd, since there's little grass left to graze. Thousands of trees in Tucson, Arizona, are dying and an entire generation of salmon in the Klamath River could be wiped out.

The western US, which is in the throes of a "megadrought" that has been plaguing the region since 2000, has entered an era of water crisis that is unprecedented in recorded American history. Due to climate change, that drought has been getting progressively worse. Warmer winters lead to decreased snowpack and hotter summers cause drier conditions, creating a vicious cycle of heat and drought.

Climate scientists warn that longer and more intense droughts are not an aberration -- they're the "new normal." To make matters worse, the laws and policies determining water rights are now becoming obsolete due to climate change. Given this reality, it's imperative that the American West modify its water policies without delay and implement more efficient methods of conserving and managing water. 

The alarming effects of the West's megadrought are multifaceted. Without sufficient rain and water, wildlife will inevitably suffer, ecosystems will be severely damaged, and the number and severity of wildfires triggered by torrid weather and dry vegetation will continue to plague the Western states.

Megadrought affects the West's agricultural sector as well. California alone produces a third of the country's vegetables and two-thirds of the country's fruits and nuts. Due to the lack of available water, however, farmers are leaving fields fallow, uprooting orchards and vines and culling herds. The drought also impacts urban areas, with cities like Phoenix, Denver, Las Vegas and Los Angeles facing unprecedented water shortages and supply cutbacks.

The West's major water storage projects -- on the Colorado, Columbia, Sacramento, Rio Grande and other river systems -- traditionally provide a substantial amount of hydroelectric power. But the drought has reduced water levels in major reservoirs to such an extent that hydropower plants could be forced to shut down in a few months. That, in turn, will greatly exacerbate power shortages in the region at the very time when demand is greatest.

Fortunately, there are a number of readily available reforms that, if adopted, can ameliorate some of the worst effects of this crisis.

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First, water conservation programs that create ways to use water more efficiently need to be greatly enhanced, promptly implemented and mandated by water managers in both the agricultural and urban sectors.

The agricultural sector consumes far more water than urban areas, and conservation programs that focus on expanding the use of already existing technology to improve crop irrigation practices would make a huge difference. There are newer drip irrigation systems that apply water directly to a plant's roots. This should replace traditional and less efficient "flood irrigation" practices, which involve covering the entire soil surface with a certain depth of water, whenever possible. Computerized systems can also identify how much water is required for different crops and when it can most efficiently be applied, which could generate further, substantial water savings. Finally, growing low-value, water-intensive crops like cotton and rice in the parched American West has never made much sense; under current drought conditions, it's simply irresponsible. Transitioning to higher value crops -- like beans and melons -- that require less water should be a priority for the agricultural sector in the American West.

In urban areas, between 40-70% of household use of water goes to landscaping. Residents as well as local government officials need to recognize that maintaining expansive, thirsty lawns is a luxury a water-starved region can no longer afford. Since the West's water crisis is only going to get worse, municipal water officials should mandate a prompt transition to drought-resistant landscaping that relies on plants like succulents and cacti to minimize the need for regular watering. The government could offer rebates to residents and businesses to incentivize that transition -- a move that would be cost-effective in the long term. And recycled rather than potable water should be mandated for watering urban parks and golf courses.

Second, water market schemes that put a fluctuating price on water depending on demand allow buyers and sellers to trade water through short-term leases and permanents sales of water rights. When there's a shortage, water markets can incentivize areas that have a surplus to conserve and sell it. These markets can also facilitate efficient exchanges of water that take different priorities into account. For example, a farmer could decide to forgo watering some alfalfa crops and sell water from his land to a municipality for domestic and commercial uses instead. These water markets, which are not as well-developed throughout the region as they are in places like Australia, should be more widely embraced. But it is critically important that these water markets be fully transparent and administered by public agencies, rather than commodified by corporations and hedge fund managers. Water transfers should be encouraged when they're in the public interest -- not simply as a way to maximize private revenue.

Third, a number of interstate water compacts-- agreements between two or more states that allocate water rights -- were negotiated in the early 20th century based on overinflated, unrealistic estimates of available water supplies. The Colorado River Compact of 1922 a federally approved agreement allocating Colorado River water supplies among seven Western states, is a prominent example. The current megadrought and climate trends make the water allocations specified in those compacts wildly overstated and impossible to fulfill. This creates a dangerous illusion that water is plentiful, which then makes it more difficult for western states to plan ahead for shortages. To address this problem, the US Secretary of the Interior should convene the compacting states to renegotiate interstate water agreements based on real-world conditions and the new water reality of the 21st century.

Finally, in the United States, water rights are allocated and administered at the state level. In many western states (California being a prominent example), these hidebound and antiquated systems that were created in the 19th century still allocate water rights based simply on who obtained them first, rather than assessing how much water is actually needed and ensuring the distribution is equitable. Additionally, most of these rights were granted by states decades or even centuries before environmental values and needs could be part of the equation. As a result, these water rights systems are simply not flexible or nimble enough to deal effectively with the protracted droughts and water shortages of the 21st century. State legislatures can and should act to reform those outdated policies without delay.

The unprecedented drought and water shortages currently confronting the American West present a clear and present danger to the health, economy and environment of the region. But necessary reforms, if timely and effectively implemented, can blunt the worst impacts of the West's unprecedented water crisis.

[Cross-posted from Daily Journal]

By Richard M. Frank

It's been a long and dispiriting four years for the U.S. Environmental Protection Agency under President Donald Trump. There's a large measure of truth in the wry rebranding of the current agency by many observers as the anti-Environmental Protection Agency. The past four years have damaged considerably the stature and reputation of the EPA, a regulatory agency created 50 years ago by another Republican president, Richard Nixon.

President-elect Joe Biden has a unique opportunity to repair the integrity of a tarnished EPA and, more importantly, to reverse many of the misguided, unprincipled environmental policies and regulatory rollbacks the Trump administration's EPA has adopted in recent years. Here are some of the actions Biden and his newly announced EPA administrator, Michael Regan, can and should take to rehabilitate the agency's integrity and effectiveness:

Restore the EPA's traditional reliance on science in its decision-making. In the first months of the Trump administration, members of the EPA's respected Science Advisory Board were purged and replaced by individuals more politically malleable and ideologically aligned with the administration. The incoming Biden administration should quickly make personnel changes to the board that rehabilitate its integrity and traditional independent role. And that should be but the first important step in restoring sound science as a cornerstone of EPA regulatory policy.

Reestablish environmental enforcement as an EPA priority. Another cross-cutting issue on which the Biden administration should focus is environmental enforcement. Generally overlooked by the media but enormously consequential is the fact that over the past four years the Trump administration's EPA has largely turned its back on enforcing federal environmental statutes and regulations. The number of EPA-initiated enforcement proceedings has dropped precipitously over that period, as has the amount of fines and penalties collected by the agency for environmental violations. Even more cynically, in March the EPA issued a policy announcing that it would not enforce or seek penalties for noncompliance with environmental monitoring and reporting obligations -- citing the coronavirus epidemic. The Biden administration should waste no time in reversing the latter 2/4 enforcement moratorium and reestablishing environmental enforcement as an EPA priority. As President Abraham Lincoln once observed, "Without enforcement, laws are nothing more than good ideas." How true.

Restore California's ability to adopt its own, more stringent greenhouse gas emission standards for motor vehicles under the Clean Air Act. Perhaps no Trump administration environmental rollback has provoked more outrage from Californians than Trump's September 2019 announcement that he was revoking California's authority under the federal Clean Air Act to maintain its own greenhouse gas emission limits for motor vehicles -- limits more stringent than those national GHG standards imposed by the EPA. (Trump falsely tweeted that this revocation would make cars sold under the federal standard "far safer and much less expensive.") California Attorney General Xavier Becerra immediately filed suit challenging the revocation, and that litigation remains pending. But the Biden administration can quickly make the litigation moot by restoring California's independent authority to set its own GHG emission limits. In doing so, it would be déjà vu all over again: In 2008, former President George W. Bush similarly attempted to revoke California's statutory authority to establish its more aggressive vehicular GHG emission standards, only to have then-newly elected President Barack Obama reverse that decision and reinstate California's authority in the first months of his administration the following year. Biden should and likely will waste no time taking the same corrective action in early 2021. (Such a decision would have impact far beyond California's borders: The CAA expressly allows other states to "opt into" California's more stringent vehicle emission standards, and over a dozen states have done so; together with California, they represent over 40% of the U.S. motor vehicle market.)

Adopt a more balanced and protective "WOTUS" regulation under the Clean Water Act. For many years, the question of how to interpret and apply the jurisdictional limits of the federal Clean Water Act has bedeviled property owners, regulators and courts trying to determine what constitutes the "waters of the United States." No less a personage than U.S. Supreme Court Chief Justice John Roberts in 2006 urged the EPA to adopt a regulation clarifying the scope of federal regulatory authority under the CWA. After a decade of dithering, the EPA finally adopted such a regulation in 2018, in the waning days of the Obama administration. But that regulation never took effect, having been challenged by developers and property owners in court, and eventually renounced by the incoming Trump administration. Trump's EPA eventually replaced the Obama "WOTUS rule" with a far more circumscribed version, one leaving unprotected numerous wetlands and other ecologically sensitive resources. The Biden EPA should go back to the drawing board and replace the Trump WOTUS rule with one more protective of environmental values and resources.

Reverse the Trump administration's abysmal approach to (non-)regulation of toxic substances. Perhaps in no area of environmental regulation has the Trump EPA been so deficient as it has in its approach to regulation of toxic materials. It has attempted to roll back a number of toxic standards, ignored congressional mandates and deadlines to 3/4 promulgate others and, in the process, endangered public health. A particularly egregious example is the EPA's most recent regulatory misadventure: last week, the Trump administration issued a so-called "Lead and Copper Rule" that, if left in place, will delay remediation of aged lead pipes that currently deliver critical drinking water supplies to millions of Americans for up to three decades and, in some cases, indefinitely. The toxicity of antiquated, leaching lead pipes is well-known to doctors and public health officials, and is especially dangerous to children, the elderly and pregnant women. The Biden EPA should waste no time in revisiting the Trump EPA's Lead and Copper Rule, replacing it with a new regulation that is far more responsive to the urgent public health crisis presented by lead pipes that contaminate drinking water supplies. More broadly, the Biden administration should restore EPA regulation of toxic and hazardous materials to a top priority.

Make environmental justice a major focus of the Biden EPA. Presidential administrations before Trump's had given at least a nod and a wink to environmental justice concerns. The Trump administration, by contrast, has given environmental justice policies the back of its hand. The incoming Biden administration can and should make environmental justice a major theme and priority. Biden's EPA -- led by Administrator Regan, who currently leads the North Carolina Department of Environmental Quality -- is in a perfect position to do just that. Both Biden and Regan have stressed their commitment to making sure that the environmental and public health interests of minority, underserved and poor communities are prioritized by EPA and the federal government generally. (In fulfilling that commitment they would be wise to consult with environmental officials in California, which -- as in so many areas of environmental policy -- has led the nation when it comes to aggressively fostering environmental justice initiatives.)

Make climate change and GHG reduction the overarching focus of EPA environmental policy. The most encouraging environmental message from the incoming Biden administration to date is that it is committed to reversing the Trump administration's criminal neglect of national and international climate change concerns. Biden has assembled a broad-based climate change leadership team -- consisting of multiple cabinet members, former U.S. Senator and Secretary of State John Kerry, former EPA Administrator Gina McCarthy and others -- to engage on climate change issues both at home and abroad. That makes eminently good sense. Biden's EPA has a major role to play in meeting this overarching challenge, and the early signals are promising that it will.

Adopt a multifaceted strategy to revoke and replace Trump administration's antienvironmental policies comprehensively and swiftly. There's a great deal that the incoming Biden administration can do to neuter and reverse the innumerable environmental rollbacks the Trump administration has attempted. One of Trump's most egregious strategic errors has been his efforts to regulate by executive order rather than through the Administrative Procedure Act's formal rulemaking process. In many cases, courts have invalidated those legally flawed executive orders, leaving in place preexisting environmental standards; those orders that remain on the books can be revoked by new executive orders Biden should adopt 4/4 in the first weeks of his administration. In other instances, Trump's EPA has attempted to adopt "interim" or "non-final" regulations; they can similarly be nullified quickly by the incoming administration. Finally -- and most consequentially -- the state of California has led a broad coalition of other states and environmental organizations in bringing court challenges to virtually every regulation the Trump EPA has adopted to roll back federal environmental standards. Most of those cases remain pending. The Biden administration, led by the Justice Department and the EPA, should attempt to negotiate settlements of those lawsuits that incorporate the Biden administration's renunciation of the misguided Trump regulatory rollbacks. In many cases, that will be the most efficient and expeditious way to invalidate the pernicious, anti-environmental policies promulgated by the Trump administration over the past four years.

The EPA has been battered, bruised and besmirched over the past four years under the Trump administration. A great many reforms will be required to repair the damage to the agency, the nation's environment and the public interest. Those reforms cannot and will not occur overnight. But the corrective measures summarized above -- some already embraced by the incoming Biden administration -- should go a long way towards restoring the EPA's historic stature and, more importantly, protecting the nation's environment and public health. Here's wishing President-elect Biden and Administrator-designee Regan the very best of luck in doing so.

[Cross-posted from CalMatters]

By Richard M. Frank

Re “Why State Water Contractors sued California over restrictions on water deliveries”; Commentary, April 30

When Jennifer Pierre of the State Water Contractors announced the end of negotiations to develop so-called “voluntary agreements” to protect the declining Bay-Delta ecosystem, it was the latest in a flurry of similar statements, including a State Water Contractors press release and a letter from the Metropolitan Water District of Southern California. The Metropolitan Water District went further, endorsing the Trump administration’s controversial new Endangered Species Act Bay-Delta biological opinions.

The debate over Bay-Delta flows represents one of California’s most longstanding and heated water conflicts.  The prospect of a negotiated solution had led to requests for the State Water Resources Control Board to delay regulatory action to update flow standards.  

State law requires the board to protect all aspects of the Bay-Delta estuary, including wildlife habitat, fishing, drinking water quality and more.  For more than 20 years, the health of that ecosystem has declined steadily and dramatically, triggering salmon fishing closures, growing risk of species extinctions and increased harmful algae blooms.  

A careful review by the water board concluded that additional ecosystem flows are required.  Yet for five years, the board has been waiting for a voluntary agreement to produce consensus flow standards.  The board has waited long enough.  

Federal law requires the board to review its current, 25-year old Bay-Delta Plan every three years.  Yet the latest, still-incomplete board review has taken 12 years.  No voluntary agreement has been forthcoming, and water users have now terminated negotiations.  

A scientifically credible, negotiated agreement involving flow standards and habitat restoration would be desirable.  Unfortunately, no such agreement is even on the horizon.  So the board should exercise its undisputed regulatory authority to finalize and implement new Bay-Delta flow requirements.  

At the moment, water users understandably suspect that the board may continue its regulatory delay – providing little incentive for them to negotiate.  But if the board demonstrates that it will act in the absence of an agreement, that will incentivize water users to commit additional water, funding and habitat restoration in future negotiations.  The importance of such a credible regulatory backstop has been well established in past key water agreements.

The board need not choose between voluntary agreements and the traditional standard-setting approach under state law.   By moving forward now to finalize and implement new flow requirements, the board could breathe new life into stalled negotiations.  To do otherwise risks both ecosystem collapse and the board’s reputation.  

[Cross-posted from the Daily Journal]

By Richard M. Frank

Blatantly illegal. Vindictive. Retaliatory. Spiteful. Or, as California Gov. Gavin Newsom aptly described it, a "weaponization of the USEPA."
All these terms accurately characterize the Trump administration's recent action to eliminate the state of California's longstanding authority under the federal Clean Air Act to adopt auto emission standards for California that are
more stringent than the national standards set by the federal government.
That action is bad news not only for California, but also for the environment as well as the consumers and automobile industry that the Trump administration's action purports to aid.
California, other affected states and numerous environmental organizations have already filed lawsuits against Trump's Environmental Protection Agency, seeking judicial intervention to nullify the EPA's "waiver withdrawal." And it's likely that they'll prevail in that legal challenge.
To understand the current dispute, a bit of historical background is required. When Congress passed the Clean Air Act in 1970, it included a provision that generally preempts states from adopting their own tailpipe emission standards for cars and trucks. However, beginning in 1966 California was already adopting its own tailpipe emission standards to address severe air pollution problems those emissions were causing in the Golden State -- especially the Los Angeles metropolitan area. Recognizing that history and expertise, Congress expressly granted California -- and only California -- continuing authority to adopt its own, more stringent tailpipe emission standards under the CAA. State officials were required under Section 209(b) of the CAA to seek a "waiver" of the national standards each time California sought to adopt its more stringent tailpipe standards and, conversely, the same CAA provision gave the EPA very limited grounds upon which to deny California's waiver request.
Over the subsequent half-century, this congressional exercise of cooperative federalism generally worked smoothly and well. California sought and received over 100 separate waivers from the EPA to adopt its more stringent tailpipe standards to curb "conventional" air pollutants such as carbon monoxide and sulphur dioxide. The results have been outstanding: despite the steady increase in the number of cars and trucks on its roads in the past 50 years, California's air pollution levels attributable to vehicular sources have
declined by approximately 95%.
This arrangement worked so successfully that Congress chose to expand it when it amended the CAA in 1977. Congress added Section 177, allowing other states the ability to "opt into" California's more exacting tailpipe standards, rather than be subject to the EPA promulgated national limits. Over the past 42 years, a large number of states have done just that: for example, some 13 other states have opted into California's greenhouse gas tailpipe and zero emission vehicle standards. When added to California's 12% of the national automotive market, these "section 177" states account for over 35% of all affected motor vehicles sold in the United States -- some 15 million vehicles annually.
But things became more complicated and fractious after the U.S. Supreme Court ruled in its landmark 2007 Massachusetts v. EPA decision that greenhouse gas emissions are "pollutants" subject to regulation under the CAA. California promptly sought a waiver from the George W. Bush administration to implement the first-in-the-nation GHG tailpipe emissions standards that California regulators had adopted in 2004. For the first time in CAA history, the EPA initially denied the waiver request in 2008, finding that California's tailpipe standards were not necessary to meet "compelling and extraordinary conditions" relating to state climate change concerns. Then-California Gov. Arnold Schwarzenegger, represented by then-Attorney General Jerry Brown, promptly sued the Bush administration, challenging the waiver denial.
That litigation was rendered moot with the 2009 inauguration of President Barack Obama. The Obama administration promptly reconsidered and ultimately granted California's waiver request to implement its own GHG tailpipe emission standards, expressly concurring in California's position that it desperately needs those standards to meet the state's compelling and extraordinary challenges from climate change. The Obama administration then went further, striking a three-way agreement with California and the automobile industry to "federalize" California's GHG tailpipe standards on a nationwide basis and join them with the federal government's own, stringent mileage (CAFÉ) standards for passenger vehicles through the 2025 model year. (Under applicable federal law, only the federal government can adopt CAFÉ standards -- a fact California officials have never contested.)
That brings us to President Trump's war on the environment, and his vengeance on California. Since taking office, Trump has pledged to repeal the Obama/California GHG tailpipe emission standards, as well as the Obama administration's CAFÉ standards. (That, of course, is only part of Trump's multifaceted efforts to repeal Obama-era environmental rules.) Almost immediately, California officials announced their own plan to retain and enforce their own state GHG tailpipe standards, per the previously granted USEPA waiver.
Trump's efforts to repeal the existing federal standards have at least temporarily stalled; his minions have struggled mightily to construct plausible legal, technical or scientific rationales for its rollback initiatives under the CAA and related federal laws, in the face of promised lawsuits by the state of California and numerous other stakeholders. Meanwhile, in July California announced an historic agreement with Ford, Honda and two other major automakers in which the companies pledged to follow California's stringent GHG tailpipe emission standards prospectively.
This latter agreement reportedly enraged the president, who quickly retaliated against both California and the automakers. Trump directed his Department of Justice to launch an antitrust investigation of those four companies, claiming their pollution control agreement with California "might" violate federal antitrust laws. (Antitrust experts roundly criticize this argument as patently frivolous.)
Meanwhile -- and also under marching orders from President Trump -- on Sept. 19, EPA Administrator Andrew Wheeler announced he was revoking the federal government's previously granted waiver allowing California to implement its GHG tailpipe emissions standards. The Trump administration bases its revocation decision on four stated rationales:
• Withdrawal of California's waiver will allow automakers to build and market cars and trucks that are cheaper, safer and therefore better for consumers;
• Automakers need this waiver revocation and related federal rollbacks in order to remain in
business;
• The nation needs a uniform set of fuel economy standards; and
• California should not be allowed to "dictate" environmental rules to the rest of the nation, because that violates the CAA's intent.

Each of these stated justifications is utterly without merit.

First, economic studies indicate that the California tailpipe standards, if left in effect as part of the Obama administration's GHG and CAFÉ standards that Trump now seeks to nullify, would save American consumers more than $1.7 trillion in fuel prices through 2025. And Trump is trotting out the same, tired canard that the auto industry invoked for decades: that mileage and pollution control standards will make vehicles less safe. However, rates of automobile deaths and serious injuries have actually declined dramatically over the years as technology improvements have made vehicles safer as well as less polluting and more efficient.
Second, the auto industry is on record as opposing the drastic GHG emission and CAFÉ rollbacks that the Trump administration is proposing. As noted above, four of the world's largest automakers have expressly embraced the California GHG emission limits that Trump & Co. are trying to nullify. And, critically, not one major automaker has expressed public support for the administration's withdrawal of California's waiver. Indeed, several of them are already complying with California's projected tailpipe emission limits.
Third, and as noted above, California has never attempted to set fuel economy standards, either for itself or the nation as a whole. All concerned agree that this role is left exclusively to the federal government. (California and other critics of Trump's proposed CAFÉ standard rollback have had the temerity to note that such federal action will result in the discharge of 6 billion tons of additional GHG emissions over the expected lifetimes of the affected vehicles.) And the U.S. Supreme Court and lower federal courts have repeatedly held that the existence of CAFÉ standards does not displace the need for -- and government's obligation to consider -- pollution control measures to abate GHG emissions.
The fourth justification of the Trump administration's waiver withdrawal is the most specious of all: Congress expressly authorized California to adopt its own, more stringent tailpipe emission standards in 1970, and explicitly allowed other states to adopt California's standards as their own a few years later. Conversely, California has never attempted to impose its emission limits on any other state or the federal government.
California Attorney General Xavier Becerra is leading a broad coalition of 24 states challenging the Trump administration's attempted waiver revocation in court. That challenge should succeed. As noted above, the Trump administration's justifications for the waiver revocation are fake news. Equally important, the CAA contains no statutory authority whatsoever for the federal government to revoke a waiver request by California that it has previously granted.
In sum, the Trump administration's waiver revocation is unwanted by anyone but President Trump (along with, perhaps, Big Oil, which alone stands to benefit financially from higher polluting, less efficient vehicles). That revocation, meanwhile, is the automobile industry's worst nightmare, creating regulatory uncertainty that will extend for years and disrupt its manufacturing and marketing efforts. And it's bad news for consumers in California and other "opt-in" states, who desire cleaner vehicles that are cheaper to own and operate.
Finally, the waiver revocation, if upheld, erodes the ability of California and other affected states to meet their ambitious but necessary GHG reductions from the transportation sector -- the single largest generator of GHG emissions -- in sthe face of federal retrenchment and resistance on the climate change front.
Fight on, California, fight on.

[Cross-posted from Sacbee.com, and co-written by David Mogavero]

California’s wetland resources provide an abundance of human and environmental benefits: flood protection, filtration of water pollutants, surface and groundwater supplies, wildlife habitat, open space, public recreational opportunities and more.

Sadly, historical filling and development projects have reduced our wetlands to a mere 10 percent of their original extent. The loss of coastal wetlands is even more alarming: 95 percent of the formerly abundant lagoons and marshes along California’s coastline have been destroyed.

In 1972, Congress enacted the Clean Water Act, which included a program designed to preserve the nation’s dwindling wetlands. This federal program has never been wholly successful in achieving that goal. In recent decades, litigation over the extent of federal authority to protect wetlands, federal regulators’ failure to delineate clearly that authority and, now, the Trump administration’s overt plans to open wetland areas to development have combined to threaten America’s few remaining wetlands.

California has the ability to fill this alarming regulatory gap, at least here in the Golden State. California’s State Water Resources Control Board possesses independent power to protect and preserve the state’s remaining wetlands. Indeed, it has broader authority to do so than do federal regulators. Years ago, Gov. Pete Wilson announced a “no net loss” goal for California wetlands, but the board is only now considering a specific policy to do just that.

In January, the board released a final draft of its proposed state wetlands policy. Earlier this month, it held a well-attended public workshop to receive public testimony. Real estate interests and land speculators have expressed their opposition to that proposal on three main grounds. They say:

▪ The board plan is rushed and premature.

▪ The draft policy unduly elevates environmental concerns over economic considerations.

▪ Adoption of the plan would undermine California’s efforts to address its current housing crisis.

Each of these criticisms is utterly without merit.

First, industry’s claim that the water board is rushing to judgment is patently false. In fact, the board has been debating its wetlands policy for nearly a decade in a transparent and publicly-inclusive process that has involved no less than a dozen opportunities for public engagement and comment.

Second, the draft policy is measured and moderate. That’s underscored by the fact that 11 of California’s most respected environmental organizations have filed formal comments with the board complaining that the draft wetlands policy is too lax and urging the board to consider strengthening it. We agree that the board’s draft wetlands policy is, if anything, too weak rather than too stringent. We certainly do not believe that this policy should be weakened any further.

Finally, industry’s claim that adoption of the proposed wetlands policy will undermine achievement of the state’s affordable housing goals is its most cynical and specious. That’s because there are literally hundreds of thousands of acres of undeveloped or underdeveloped properties currently available for building new housing across California.

These properties are generally located in existing communities close to jobs, shopping, schools and transit, thus allowing Californians to substantially reduce their commutes and costs, and consequently shrink their cost of living.

Focusing new housing in existing communities also accomplishes multiple other important public policy objectives, such as reducing state greenhouse gas emissions, encouraging investment in existing communities and increasing the tax base to pay for existing infrastructure maintenance.

Conversely, building in remote, currently undeveloped regions of the state is the only type of housing project that endangers California wetlands. It also contradicts the explicit state policy of encouraging infill development. It’s precisely the type of housing that polls indicate most Californians no longer want.

The water board’s proposed wetlands policy is measured, reasonable, critically needed and long overdue. The board should adopt it without further delay.

by Rick Frank and Christopher Elmendorf

[Cross-posted from Legal Planet]

How to Make a Good Bill Even Better

Last week, as President Trump harrumphed about the faux emergency on our nation’s Southern border, California State Senator Nancy Skinner introduced a potentially transformative bill that addresses California’s real emergency: the ever-escalating cost of housing in the state’s economically productive metropolitan regions. As this post will explain, Skinner’s new bill, SB 330, is a hugely important milestone in the evolution of state land use and housing policy, but it still falls short of what’s needed. Happily, there is a fairly straightforward (and conveniently low-visibility) way to fix the bill’s shortcomings.

What’s Great About SB 330

Starting as far back as the 1970s, California has enacted a huge range of mostly ineffectual remedies for the arbitrary and excessive barriers to new housing that local governments continue to throw up. In addition to being (largely) ineffectual, most of the state’s mandates have one other thing in common: they apply indiscriminately to local governments throughout the state, paying little heed to differences among jurisdictions in housing demand, supply restrictions, development potential, or planning capacity.

SB 330 is different. It recognizes that the housing crisis now afflicting San Francisco, whose median home would cost you $1.2 million, is not really a crisis in, say, Fresno, where the median house barely crests $200,000. Most of SB 330’s provisions would apply only to a subset of “covered” jurisdictions, defined by average rent and vacancy rates. The idea of tying state housing remedies to market conditions is very important, and long overdue. San Francisco needs to permit loads of new housing. Fresno does not.

SB 330’s “coverage” strategy is also politically advantageous. State legislators can pull specific jurisdictions out of the bill’s reach by adjusting the coverage formula or cutoffs. Back in the 1960s, Congress used the same strategy to pass the Voting Rights Act. The VRA created special protections for black voters in most of the Jim Crow South, but its coverage formula was reverse-engineered to exclude Texas. This was the price of getting the bill across the finish line.

SB 330 would impose a panoply of new controls on the jurisdictions that it covers. Among other things, SB 330 would prohibit covered jurisdictions from applying any off-street parking requirement to new housing proposals, and it would prevent them from making their zoning more restrictive, from enacting new caps on building permits, and from applying fees or historic-preservation ordinances retroactively.

However, apart from the parking provisions, SB 330 does nothing to erode the thick accumulation of growth controls, excessive zoning restrictions, cumbersome permitting procedures, exorbitant fees, arbitrary code requirements, and layers of discretionary review that already exist in the covered jurisdictions.

How to Improve SB 330

SB 330’s glaring omission—its failure to remove existing barriers to housing in the high-cost jurisdictions—probably reflects a political calculation. If the bill were to enumerate certain “excessive” barriers to housing which local governments could no longer enforce, it might become too hot to handle.

But an effective attack on existing barriers to new housing needn’t be so overt. As one of us (Elmendorf) explains in a draft law review article, the California Legislature could bring about the elimination of many of these restrictions simply by tweaking the legal standard for determining whether a local government’s housing plan complies with state law, and by authorizing mayors to promulgate interim housing plans.

Let us explain. Since 1980, California has required its local governments to revise the “housing element” of their general plans every 4-8 years. The housing element is supposed to explain how each local government will accommodate its fair share of regional housing needs. It must include an analysis of local constraints to the development of housing, and a schedule of actions addressing those constraints. Local governments must submit their periodically updated housing elements to the state Department of Housing and Community Development (HCD) for review and approval.

But there’s a hitch. The legal standard for what constitutes a “substantially compliant” housing element has no teeth. So long as the housing element “contains the elements mandated by the statute,” the courts will uphold it. Whether it will actually result in construction of the target number of units has been regarded as a question of “workability” or “merits,” and irrelevant as matter of law to the housing element’s validity.

This deferential approach makes some sense for the Fresnos of the world, but it’s a disaster for the San Franciscos. SB 330 is thus the perfect vehicle for a solution. California should enact a new definition of “substantial compliance” that applies only to the high-cost jurisdictions covered by SB 330. In these jurisdictions, a housing element should be deemed compliant only (1) if it is likely to result in production of the targeted amount of new housing over the planning cycle; or (2) if it removes, or commits the local government to removing, all unreasonable constraints to the production of new housing. Discrete, removable constraints which are identified in the housing element but not reformed on schedule should become inoperative as a matter of state law. And if a local government fails to adopt a new, substantially compliant housing element on schedule, state law should authorize the mayor (with HCD’s approval) to promulgate an interim housing element, which would govern housing development in the meantime.

These seemingly small-bore reforms would have far-reaching consequences. Initially, they would make it easy for a city’s elected leadership to suspend exclusionary, voter-adopted growth controls, while deflecting blame to the state. If a housing element lists a voter-adopted restriction on its schedule of (unreasonable) “constraints,” and if the city’s voters fail to approve an adequate reform by the appointed date, the constraint would be repealed by operation of state law. While local officials may have some reservations about putting voter-adopted measures on the chopping block, the state-law framework would give them cover. “The state pushed us to do it; we had to or else we’d lose our state funding,” they can say.

And if mayors can promulgate interim housing elements when cities would otherwise be out of compliance, this will shift cities’ land-use policies toward the mayors’ preferences. Mayors, who are elected citywide, tend to be less responsive to neighborhood NIMBY groups than city councils. Knowing that the mayor could issue an interim—yet legally binding—housing element, city councils would make generous concessions ex ante to the mayor, in the hopes of avoiding a veto or other mayorally-induced delay of the council’s housing element.

Senator Skinner deserves major plaudits for SB 330. Now let’s make it even better.

By Rick Frank

[Cross-posted from LegalPlanet]

1969 Santa Barbara Oil Spill Sparked the Beginning of America's Modern Environmental Era

This week marks the 50th anniversary of one of the most serious and consequential environmental disasters in American history–the Santa Barbara offshore oil spill of 1969.  On January 28, 1969, an offshore oil rig (Platform A) owned and operated by the Union Oil Company and operating in federally-controlled waters in the Santa Barbara Channel off the California coast, blew out.  Over the next 10 days, between 80,000-100,000 barrels of crude oil spilled into the Channel and onto California beaches, stretching from San Luis Obispo County south to San Diego–though the majority of the spill-related damage occurred in Santa Barbara and Ventura Counties.  That oil spill killed approximately 3,500 seabirds and an unknown but substantial number of marine mammals including dolphins, elephant seals and sea lions.  The spill was not completely capped until early 1970

A half century later, the Santa Barbara oil spill remains the third largest oil spill in U.S. history, after only the Deepwater Horizon spill in the Gulf of Mexico (2010) and the Exxon Valdez oil spill in the ocean waters of Alaska’s Prince William Sound (1989).

In many ways, however, the January 1969 Santa Barbara spill remains the most consequential and transformative environmental disaster in American history.  That’s true for several related reasons.  First, it was the inaugural such environmental disaster captured and broadcast into millions of U.S. households on the evening news.  For weeks, the major TV networks provided gripping, daily accounts of the biological damage and adverse economic effects produced by the Platform A blowout.  And that had a profound effect on the national psyche, with televised footage of dead and dying animals, fouled beaches and oil-saturated ocean waters underscoring in the most stark way the myriad costs associated with oil and gas development in coastal waters.

Second, the Santa Barbara oil spill provoked a strong and immediate response from government leaders.  Local officials complained bitterly to the media and public about the lack of adequate environmental controls and oil spill response efforts, noting presciently that the federal government that had issued the oil and gas leases–thereby earning substantial royalties from the oil companies’ offshore development activities–had an inherent conflict of interest when it came to regulatory oversight of those same activities.  Federal officials had a more muted reaction to the spill: President Richard Nixon visited the area to view the spill and cleanup efforts on March 21st, telling the assembled crowd, “…the Santa Barbara incident has frankly touched the conscience of the American people.”  But on April 1st, a hastily-adopted, temporary federal drilling ban was lifted, and oil and gas development in federal waters resumed off the California coast.

Longer term, however, the Santa Barbara spill would have a direct and positive effect on American environmental policy and law.  Later that year, Congress would enact the National Environmental Policy Act (also a half century old this year).  And NEPA was but the first in a torrent of environmental legislation passed by Congress over the next decade–including the Clean Air Act, Clean Water Act and Endangered Species Act–that to this day remains the basic framework of federal environmental law.

Environmental activism is another direct outgrowth of the 1969 Santa Barbara oil spill.  The next year, U.S. Senator Gaylord Nelson of Wisconsin led efforts to organize the first Earth Day, an annual celebration of the environment and environmental values that continues to this day.  Additionally, local, state and national environmental organizations saw their membership ranks swell in the wake of the Santa Barbara oil spill.

The Santa Barbara oil spill also catalyzed a state government response that quickly made California a national and international leader when it comes to environmental policy and law.  In the immediate wake of the disaster, the Republican-dominated California Legislature created an interim Committee on Environmental Quality, directing it to develop recommendations for state environmental legislation.  The most important outgrowth of that initiative was passage in 1970 of the California Environmental Quality Act; modeled on but significantly stronger than NEPA; CEQA remains California’s most important, cross-cutting environmental law, as well as the most powerful “little NEPA” statute in the nation.  And when the California Legislature balked at passing a law specifically designed to prevent ocean and coastal damage exemplified by the Santa Barbara oil spill, state voters responded by enacting an initiative measure in 1972 creating the California Coastal Commission and the most powerful system of coastal regulation and preservation in the nation.

Last but not least, the Santa Barbara spill had a transformative on academia and education.  In direct response to an environmental disaster that severely damaged its own coastal campus, the University of California, Santa Barbara immediately created the nation’s first environmental studies program, featuring such luminary professors as human ecologist Garrett Hardin and environmental historian Roderick Nash.  Fifty years later, environmental studies programs are an essential part of the curriculum at most of the nation’s colleges and universities.  Similarly, environmental law is a key area of specialization at U.S. law schools, and environmental law centers and clinics play a critical role at many of America’s top law schools–including the three University of California law schools that contribute to this blog site.

To be sure, the 1969 Santa Barbara oil spill was a major environmental disaster, one that caused considerable environmental damage to the ocean environment and economic havoc to California’s coastal communities.  But the silver lining (if one can call it that) to that disaster from a half century ago is that it–perhaps more than any other single event–brought the need for ecosystem protection and environmental regulation to America’s collective consciousness and ushered in the modern era of environmental law, policy and advocacy.

As we reflect on the 50th anniversary of the Santa Barbara spill, that’s a most welcome legacy of a truly horrific event.

By Rick Frank

[Cross-posted from the San Francisco Chronicle]

One of the keys to former Gov. Jerry Brown’s success as California’s chief executive over the past eight years was the stellar group of individuals he recruited as his top environmental and water officials. Gov. Gavin Newsom’s initial, senior environmental appointments suggest that he is wisely following in Brown’s footsteps. Californians can only hope his water leadership team turns out to be equally strong.

Newsom’s first two environmental appointments are his most important, and his choices are impressive indeed.

Jared Blumenfeld will serve as his secretary for environmental protection. Blumenfeld and the governor have a long history together: After working in Newsom’s mayoral administration as San Francisco’s director of the environment, Blumenfeld served with distinction as Region IX (West Coast/Pacific Rim) administrator for the U.S. Environmental Protection Agency in the Obama administration. In his new state role — a Cabinet position in the Newsom administration — Blumenfeld will oversee the sprawling California Environmental Protection Agency, supervising California’s pollution control, toxic waste management and water rights programs.

Wade Crowfoot was named secretary for natural resources. Crowfoot, another alum of Newsom’s mayoral administration, also previously served as deputy Cabinet secretary and senior adviser to Brown. Most recently, Crowfoot has been the chief executive of the Water Foundation, a think tank focused on water issues in California and the American West. At the Natural Resources Agency, Crowfoot will lead California’s natural resource management efforts, including the state’s climate change adaptation planning initiatives.

Also, California Air Resources Board Chair Mary Nichols — perhaps the single most high-profile and widely respected environmental official in the Brown administration — has agreed to continue in that role for at least the first phase of Newsom’s administration. That’s very good news, especially because it assures Nichols’ continuing leadership in achieving California’s ambitious, pioneering greenhouse gas reduction goals. Nichols has guided the air board since 2007 and served an earlier stint in the 1980s.

Far less settled is how Newsom will fill his administration’s most important positions regarding state water policy. One of Newsom’s key tests confronts him immediately: State Water Resources Control Board Chair Felicia Marcus’ term expires this week. Newsom should reappoint Marcus to another term as chair of the water board, which both oversees California’s multifaceted water pollution control programs and administers the state’s always fractious water rights system. She’s done a masterful job over the past six years — most prominently in leading California’s successful efforts to respond to the unprecedented 2012-2017 drought. Marcus has the experience, leadership ability and people skills to continue to lead the board effectively in the coming years as the state works to craft regulations to protect cities, farms and fish.

Another critical decision for the new governor is whom to appoint as director of the state Department of Water Resources. In the past, the department director’s most important job was to oversee operation of the State Water Project. In recent years, that role had become more complicated — and contentious — because of Brown’s support of California Water Fix (also known as the delta tunnels) project. Brown proved unable to get his legacy water initiative to the finish line. It’s still an open question whether Newsom will continue to pursue or abandon the controversial tunnels.

In either case, Newsom’s water resources director will be the state’s point person in addressing a State Water Project that’s in precarious shape — both as an unreliable water delivery system and because of its undisputed, deleterious effect on a delta ecosystem in a state of ecological collapse.

The Department of Water Resources recently has taken on an increasingly prominent role under the Sustainable Groundwater Management Act, a law passed in 2014 that sets in motion a plan to manage the state’s groundwater basins, which supply a significant amount of the state’s water. That landmark legislation gives the department a lead role in assisting regional “groundwater sustainability agencies” to formulate plans to make California’s chronically over-drafted groundwater basins sustainable in the future. It will be the department’s job to evaluate those plans over the next several years to ensure that the water pumped out doesn’t exceed the amount recharged by nature or man.

To fulfill these responsibilities, Newsom’s director of water resources will have to command the respect of state water agencies, agribusiness and environmental groups. That, in turn, will require technical ability, vision, leadership and extraordinary diplomatic skills.

Newsom’s selection will serve as an early indicator of the governor’s water policy priorities.