Latest Scholarship

April 27, 2017

UC Davis School of Law Launches New Water Justice Clinic

(Cross-posted from Legal Planet.)

UC Davis School of Law has launched an exciting new Water Justice Clinic designed to advocate for clean, healthy and adequate water supplies for all Californians.  The new Clinic is a project of the Aoki Center for Critical Race and Nation Studies, in partnership with the  California Environmental Law and Policy Center, and will offer unique environmental justice advocacy opportunities for King Hall students.

Currently, over one million California residents lack access to clean, safe, and affordable drinking water.  An overwhelming percentage of those residents live in rural California, and represent communities of color.  The barriers to accessing clean water are not limited to environmental issues, and lack of access to water imposes a significant financial burden on low-income families, while also resulting in increased rates of obesity, shorter life expectancies and decreased learning outcomes for children.

However, very few rural legal services attorneys are able to litigate water law cases, and no legal services attorneys offer transactional legal support to these California residents.  King Hall's Water Justice Clinic seeks to fill that gap by identifying viable drinking water solutions and then implementing those solutions by providing transactional legal support to the affected low-income, rural communities.

Prominent environmental justice expert Camille Pannu has been recruited to lead the Water Justice Clinic as its inaugural director.  Pannu, a Berkeley Law alum, was passionate about environmental justice issues even as a law student.  After law school, Pannu worked on environmental justice cases for the Center on Race, Poverty & the Environment as an Equal Justice Works Fellow in the San Joaquin Valley.  Before coming to King Hall, she also clerked for District Judge Stefan Underhill in Connecticut and Ninth Circuit Court of Appeals Judge Richard Paez.

The overarching goal of the new Clinic is to insure that all Californians have access to clean, affordable and safe drinking water, primarily by strengthening rural community water systems.  The Clinic will also advocate for policies that fund needed improvements to those systems, address groundwater contamination, and ensure that rural voices are fully represented in future California water management decisions.

Recent headlines about the drinking water scandal in Flint, Michigan and--closer to home--the water crisis faced by East Porterville residents in the southern San Joaquin Valley have prompted action by California legislators and voters to confront those problems directly.  Proposition 1A on California's November 2014 ballot contained funding to provide assistance to California's disadvantaged communities, and King Hall's Water Justice Clinic is made possible by a three-year grant of Proposition 1A funds by the State Water Resources Control Board.  Indeed, the Clinic is the primary legal services provider among the organizations funded by these Proposition 1A grants.

Clinic Director Pannu reports that King Hall students will play a critical role in assisting these communities by enrolling in the clinical program each semester.  There they will partner with grassroots community organizations such as the Community Water Center, while also obtaining classroom training from Pannu in water justice and related issues.

April 13, 2017

A Field Trip to Bodega Bay

On Friday, April 7th, I had the opportunity to lead my King Hall Ocean and Coastal Law students on a field trip to the UC Davis Marine Biology Laboratory in Bodega Bay, California.  The Lab, founded by the University of California a half-century ago, is the site of pioneering marine science research by UC Davis faculty and graduate students who work at the Lab.

During our visit, my law students received an overview of the Lab's history and operations from UCD Professor and Marine Lab Director Gary Cherr.  We also heard substantive briefings from two post-graduate UCD researchers, who shared the status and findings of their marine science projects.  Director Cherr provided our group with an extensive tour of the Lab and surrounding area, which are part of a UC-owned marine reserve located on a spectacular peninsula extending into the Pacific Ocean on the Sonoma County coast.

Last week's field trip afforded our law students first-hand exposure to the marine science research that serves as much of the foundation of Ocean law and policy that they've been studying this semester at King Hall.  Additionally, it provides our students with invaluable exposure to scientists: learning to work effectively with experts from a variety of disciplines is essential to a successful environmental law practice--and an essential part of King Hall students' legal education.

March 17, 2017

Professor McAllister on the Puzzle of California's Climate Leadership

Professor Lesley McAllister recently blogged over at Environmental Law Prof Blog about last week's successful environmental law symposium at King Hall.

Here's an excerpt:

Last Friday, UC Davis School of Law's Environmental Law Society and the Environs journal held their 2017 Symposium, The Future of Climate Change Law & Policy: View to 2030.  It was an excellent event, with many great speakers and terrific attendance -- big congratulations to the student organizers: Sophie Wenzlau, Dane Jones and Jamie Katz!  Panels dealt with California's new SB32 (which updates AB32 by writing into law California's 2030 goal of reducing its emissions to 40% below 1990 levels by 2030); climate change and agriculture; zero emissions vehicles; and California's leadership in international climate law. 

A couple speakers on the final panel about international connections couldn't come at the last minute, so I and several of my colleagues were asked to step in. The panel went well, but I had one of those experiences that one should not have after more than 10 years of teaching and presenting on panels - I spoke for 9 (out of 10) minutes without getting to the point!  Of course, we all hate when professors do this!  I can only offer the excuse that I am out of practice, and I have been through a ridiculous amount of cancer treatment in the past three and a half years. But it was a shame because I really had some important knowledge that I wanted to convey, and I bombed it.

This blog post is my attempt at a re-do.  The very interesting and timely question that I wanted to address was how and why California has made so many international linkages in climate policy.  Everyone knows that California has been a climate change leader within the United States. But it may be forgotten that California has also been extremely active internationally, working with other subnational jurisdictions throughout the world.

To read the complete blog entry by Professor McAllister, see "The Puzzle of California's Climate Leadership" at Environmental Law Prof Blog.

 

December 30, 2016

A Festschrift for Lesley McAllister

UC Davis School of Law is proud to co-sponsor a festschrift for King Hall's own Professor Lesley McAllister.

Here is the invitation and program information from the Center for Progressive Reform. The event will take place next week in San Francisco, where many legal scholars will be attending the Association of American Law Schools (AALS) Annual Meeting.

Tickets are not required, but RSVPs are strongly encouraged. You can RSVP here.

***

Friends,

Please join us from 5:00-8:00 pm on Friday, January 6, 2017 as we close out the holiday reception season with an event that will expand your thinking, rather than your waistline. 

UC Davis law professor Lesley McAllister has made an indelible mark on the field of environmental law. Unfortunately, she has been fighting a rare form of lung cancer for several years. On January 6, by the sidelines of the AALS annual meeting, we are convening a forum of influential scholars who contributed to her work, are inspired by her work, and benefit from her work. We hope you'll come be a part of it.

Lesley McAllister has been a volunteer Member Scholar of the Center for Progressive Reform (CPR), for the past 8 years. CPR, founded over 15 years ago by a few law profs who taught environmental and workplace health and safety law, is an advocacy organization through which law scholars work together to bring their voices out of academia into the policy arena in support of protective regulation.  

This event to honor Lesley McAllister will take place at the UC Hastings College of Law, 200 McAllister Street, San Francisco, just a few blocks from the AALS annual meeting. It is not an AALS event, so you do not need a ticket to attend. It starts at 5:00 pm, with a light reception from 5:00-6:00 pm. An hour-long program (see below) follows, and then there will be a bigger (i.e. more food & drink) reception from 7:00-8:00 pm. 

The evening is generously co-sponsored by UC Davis School of Law and the University of San Diego School of Law.

You can RSVP here. Thank you and Happy Holidays!

Robert R.M. Verchick
Board President, Center for Progressive Reform
Gauthier-St. Martin Chair in Environmental Law, Loyola University New Orleans
Senior Fellow in Disaster Resilience Leadership, Tulane University

PROGRAM

Welcome

  • Rob Verchick, CPR President, Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law, Loyola New Orleans University
  • Lesley McAllister, Professor of Law, UC Davis

Introductory Remarks   

  • Madhavi Sunder, Senior Associate Dean for Academic Affairs and Martin Luther King, Jr. Professor of Law, UC Davis
  • Orly Lobel, Professor of Law, University of San Diego

Panel

  • Climate Change & Cap and Trade: William Boyd, Professor of Law & John H. Schultz Energy Law Fellow, University of Colorado
  • Environmental Law in Developing Countries: Benjamin Van Rooij, Professor of Law, UC Irving
  • Private Regulation / 3rd party Auditing: Jodi Short, Professor of Law, UC Hastings

Concluding Remarks 

  • Daniel Rodriguez, Dean and Harold Washington Professor of Law, Northwestern University      
  • Robert Kagan, Prof. Emeritus of Political Science and Law, UC Berkeley.
  • Lesley McAllister

Please RSVP here.

November 4, 2016

California Environmental Law & Policy Issues Class Heads to Incline Village

On October 14, I led a field trip for my California Environmental Law & Policy Issues students to UC Davis' Tahoe Environmental Research Center at Incline Village. There they heard a series of presentations on Lake Tahoe Basin science, law and environmental policy relevant to their studies on Tahoe-related legal issues.

July 1, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 3

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers.

"The Racist Algorithm?" 
Michigan Law Review (2017 Forthcoming)
UC Davis Legal Studies Research Paper No. 498

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale's central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.

I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.

"Marriage Equality and its Relationship to Family Law" 
129 Harv. L. Rev. F. 197 (2016)
UC Davis Legal Studies Research Paper No. 499

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

This Essay is a Response to Professor Douglas NeJaime's article Marriage Equality and the New Parenthood. NeJaime's piece offers critical new insights into the evolution of legal parenthood and its relationship to marriage. First, NeJaime shows how evolving protections for nonbiological parents served as stepping stones in the march toward marriage equality. Surprisingly, few scholars have acknowledged, much less carefully explored, this connection. Second, NeJaime uses his meticulous parentage case study to complicate our understanding of the extent to which this earlier parentage advocacy directly challenged marriage's privileged role in our society. Finally, NeJaime argues that this history suggests more progressive possibilities with regard to the future legal treatment of nonmarital children post-Obergefell.

After highlighting these three key contributions, this Essay makes two additional points. First, this Essay considers why this important story about parentage law and its relationship to marriage equality has attracted less attention than it deserves. Second, this Essay considers a critical possibility not addressed by NeJaime. NeJaime uses parentage law to show how Obergefell might facilitate, rather than foreclose, additional protections for nonmarital children. This Essay posits an even more radical proposition: it argues that marriage equality might open up progressive possibilities not just for nonmarital children, but also for nonmarital adult relationships.

"Preliminary Injunctive Regulation" 
Arizona Law Review, Vol. 58 (Forthcoming)
UC Davis Legal Studies Research Paper No. 497

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Rapid technological changes pose serious challenges for the Environmental Protection Agency (EPA) and other regulators charged with protecting human health and the environment. These changes can result not only in significant harms, but also in the entrenchment of new technologies that can be difficult to undo should the need arise. In urgent circumstances, agencies often must act quickly, but they face an increasingly ossified rulemaking process. The Administrative Procedure Act's good cause exception to notice and comment rulemaking offers the most promising option for a swift and effective response. Empirical analysis of EPA's use of that exception demonstrates that, contrary to concerns regarding potential agency abuse, EPA has exercised restraint in invoking the exception. Going forward, EPA should consider more aggressive use of the exception to respond to urgencies resulting from rapid technological developments and environmental changes. In justifying an expedited approach, EPA can make explicit reference to congressional inaction on an issue, the generally protracted nature of contemporary rulemaking, and the particular delays that the agency has encountered in ordinary rulemaking.

"Interstitial Citizenship" 
Fordham Law Review, 2017 Forthcoming
UC Davis Legal Studies Research Paper No. 496

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

We think of American citizenship as a binary concept. There is citizenship, which is acquired at birth or through naturalization, and there is non-citizenship accounting for everyone else. I argue that this understanding is woefully incomplete. Conventional framing of citizenship has overlooked a different type of political membership: American national status. American nationals possess some rights of citizenship, such as the right to enter and reside in the United States without a visa. Similar to non-citizens, however, they cannot vote or serve on the jury. Thus, the status of American nationals reveals that there are individuals who are neither citizens nor nor-citizens or "aliens." Instead, they have what I have coined "interstitial citizenship." Disrupting the citizen/alien binary, interstitial citizenship demonstrates that citizenship is far more flexible than previously thought. Indeed, it reveals that citizenship rights may be unbundled and conveyed to non-citizens. In this way, interstitial citizenship offers important legal and policy implications for contemporary debates on comprehensive immigration reform, including the question of whether to provide undocumented immigrants with a path to citizenship.

November 16, 2015

Environmental Law Conference 2015 at Yosemite

On October 22-25, I was joined by 20 current King Hall environmental law students in attending the California State Bar Environmental Law Section's annual Environmental Law Conference at Yosemite.  This was a record turnout of King Hall students at what is California's premier environmental law conference.  It provided this record number of King Hall students a fabulous opportunity to gain a comprehensive overview of California environmental law and policy; to enjoy the spectacular natural resources of Yosemite National Park; and to network with 500 of California's top environmental lawyers and policymakers.


Above: members of the UC Davis School of Law Environmental Law Society. Standing L-R: Laura Taylor, John Miller, Nick Moore, Andrea Abergel, Anne Badasci, Daniel Quinley, Randy Reck, Hank Crook, Ara Karamian, Kaitlyn Kalua, Sean Drake, Lindsay Moorhead, James Anderson, Amanda Saunders, Professor Rick Frank, Aaron Wilensky. Kneeling L-R: Meredith Hankins, Michel Wigney, Sophie Wenzlau, Laura Flynn, Victoria Bogdan Tejeda.

 


Above: Members of the UC Davis School of Law Environmental Law Society watch the sun set over the valley from one of the many Yosemite hiking trails. L-R: Laura Taylor, Anne Badasci, Hank Crook, Victoria Bogdan Tejeda, John Miller, Ara Karamian.

 

 

October 9, 2015

Testifying on Drought Relief Bills before the U.S. Senate Energy and Natural Resources Committee

I just returned from Washington, D.C., where I testified before the Energy and Natural Resources Committee of the U.S. Senate in a hearing on drought relief bills H.R. 2898 & S. 1894. While in the nation's captal, I also met with Congressman John Garamendi (D-Fairfield), former Deputy Secretary of the Interior, to discuss those bills and other potential drought relief measures.

Here is text of my testimony on October 8:

Chairman Murkowski, Ranking Member Cantwell and members of the Committee, thank you for the opportunity to testify on the two "California drought relief" bills currently pending before this Committee: H.R. 2898 and S. 1894.

I am Richard Frank, Professor of Environmental Practice and the Director of the California Environmental Law & Policy Center at the University of California, Davis School of Law.  Before I joined the U.C. Davis Law School faculty in 2011, I served as the Executive Director of the U.C. Berkeley School of Law's Center for Law, Energy and the Environment.  At these law schools, I have taught courses on Water Law, California Environmental Law & Policy, Environmental Enforcement, Climate Change Law & Policy, Ocean & Coastal Law, the California Delta, Natural Resources Law and related topics.  Much of my research and writing has focused on water law and policy in California and the American West, climate change mitigation and adaptation law and strategies, environmental regulatory policy and private property rights.

Before my academic appointments at U.C. Davis and U.C. Berkeley Schools of Law, I worked for 30 years as a practicing attorney at the California Department of Justice, where I represented the People of the State of California and various state agencies, departments, boards and commissions focused on environmental regulation and natural resources management.  At the time of my retirement from the Department of Justice in 2006, I served as the California Attorney General's Chief Deputy Attorney General for Legal Affairs.

Since leaving state government in 2006, I have been appointed to and have served on various California state advisory boards and commissions.  Most relevant to this testimony, in 2007 former California Governor Arnold Schwarzenegger appointed me to the Delta Vision Blue Ribbon Task Force.  I served on that body from 2007 until it concluded its work and reported its findings to the Governor and California Legislature in late 2008.

General Comments & Overview

With the beginning of a new "water year" on October 1st, California has now officially entered its fifth consecutive year of drought.  The length and intensity of that drought are unmatched in California's 165-year state history.

The current drought has severely tested California's people, economy, environment and political system.  The good news is that California's political leaders, water managers and general citizenry have responded remarkably well, under exceptional circumstances, to the unprecedented challenges presented by the drought.  With a few exceptions noted below, and through their own, unprecedented conservation efforts, the state's 39 million residents have been able to obtain the water necessary to meet their basic human needs.  Perhaps counter-intuitively, the current drought has not impeded California's remarkable and steady recovery from a protracted economic recession.  Indeed, the state's robust economic recovery began roughly at the same time the current drought began in 2011.[1]  In contrast, however, California's environmental resources have not fared nearly as well in the face of the present drought.

A key factor in ameliorating some of the potential adverse effects of the current, protracted drought is the work of federal, state, regional and local water managers in California.  Most relevant to this hearing, federal and state water managers have collaborated closely and well in managing the Central Valley Project and the State Water Project under daunting circumstances and chronic, multiyear shortages.  This, in turn, is due in no small measure to their ability to manage and coordinate the operation of those systems in real-time, on a day-by-day basis.  (California Secretary of Natural Resources John Laird has made the same point in recent written communications with Congress.)  That's an important, overarching principle-one that any new federal drought response legislation should promote, rather than impede.

At the same time, the rather impressive record of California drought response to date should not lead to a false sense of complacency.  Nor should reports of an El Nino winter that could conceivably end-or at least put a significant dent in-California's current drought.  That's because most climate scientists, meteorologists and climate modelers warn that a pattern of future droughts is likely to occur.  Further, they caution that the severity of the state's current and protracted drought may actually be replicated in future years.  I.e., California's present drought may well not be an aberration but, instead, a harbinger of a more water-challenged future--not only for California, but also for other portions of the American West.

Accordingly, it seems appropriate for Congress to consider any proposed federal drought legislation not simply as a one-time response to California's current drought but, rather, with an eye toward the "new normal" of recurrent droughts exacerbated by projected climate change.

H.R. 2898

Several features contained in H.R. 2898 appear to have merit.  For example, the bill's requirement that the feasibility of various new surface storage facilities be studied, and that those feasibility studies be concluded and published in the near future, makes considerable sense.  Several of these proposals have been hotly debated in the abstract, without focusing on their cost, engineering feasibility, etc.  It's high time for an objective review of those projects' relative merits, so that federal and state policymakers can determine whether they "pencil out" and make environmental sense.

Similarly, the bill's proposed sections 203 and 204, which would undertake studies of invasive species and predator control, represent worthwhile initiatives.  Invasive species present a clear and present ecological danger to the California Delta's native species and ecosystem.  They have also resulted in economic hardship to many people and businesses in the Delta.  Federal research, pilot projects and monetary support to combat that problem would be most welcome.

Finally, environmental review of proposed emergency response efforts to address the drought can and should be expedited when it is reasonably possible to do so.  The National Environmental Policy Act (NEPA) and implementing regulations promulgated by the President's Council on Environmental Quality provide the flexibility to shorten the time periods to complete NEPA review in emergency circumstances.  Many of H.R. 2898's proposed "fast-tracking" and disclosure provisions in this regard-when invoked in connection with the federal government's emergency drought response efforts-seem appropriate.  One particularly welcome feature of proposed section 805 requires the Secretary of the Interior to adopt "Transparency Reporting" via creation of an electronic database to make publicly available documents associated with the government's NEPA compliance efforts.  Such a reform is overdue. 

On the other hand, H.R. 2898's proposal to reduce the public comment period under NEPA for drought response projects to 60 days-or, in some cases, as little as 30 days--is unwise.  One of the overarching purposes of NEPA is to allow the interested public a meaningful opportunity to participate in the environmental decision-making process.  Given the cost, complexity and magnitude of many potential federal drought response projects, these abbreviated comment periods seem unreasonably short.  Similarly, proposed section 305 would authorize the Secretary to "deem a project in compliance with all necessary environmental regulations and reviews" if s/he determines that immediate project implementation is required to address "a specific and imminent loss of agriculture production upon which an identifiable region depends..." That provision would create a new statutory exemption from otherwise-applicable NEPA, ESA and related environmental review that appears both unprecedented and ill conceived.

Other provisions of H.R. 2898 seem equally problematic.  Perhaps of greatest concern are the bill's significant modifications to the Biological Opinions that federal wildlife experts have fashioned for listed Delta smelt and salmonids adversely affected by operation of the Central Valley Project and State Water Project.  Those Biological Opinions were developed over a period of years by those experts, pursuant to the mandates of the Endangered Species Act.  The Bi-Ops were challenged in protracted litigation brought by agricultural interests and Central Valley water districts against federal wildlife agencies.  They were ultimately upheld in now-final decisions of the U.S. Court of Appeals for the Ninth Circuit.  With respect, permanent federal legislation is not the appropriate means of making changes to the Biological Opinions-certainly not the substantial revisions contemplated by H.R. 2898.  These provisions of the bill would set a most unfortunate precedent and further politicize implementation of the ESA's legal mandates.  

More specifically, H.R. 2898's provisions would require a level of precision in sampling of fish and water quality (.e.g., turbidity) that doesn't currently exists and may well be unavailable in the future, given the present resources federal wildlife agencies have available.  And by specifying the actions which they must take, the bill eliminates the ability of those wildlife agencies to utilize adaptive management strategies-or perform much management of listed species at all.

A related, major concern is H.R. 2898's proposed section 313, which would repeal the federal government's previous approval of the so-called San Joaquin River Settlement.  That settlement resolved 18 years of protracted litigation over restoring flows to the dewatered San Joaquin River and-as approved by Congress-forged a legal and political compromise that promised to restore California's second largest river to some modicum of environmental health.  Repealing federal approval of that settlement would undoubtedly result in the parties returning to their litigation foxholes, recommencing the litigation, and thus resulting in additional expense, delay and uncertainty.  Such a course will ultimately benefit no one.  It will instead open a renewed front in California's "water wars" that is contrary to the broader public interest-not to mention the environmental health of a vital state waterway and extensive riparian corridor.

Proposed section 602 would amend the Central Valley Improvement Act of 1992 (CVPIA) by creating a new Restoration Fund Advisory Board.  In principle, convening a group of stakeholders for this purpose would seem uncontroversial.  But the makeup of the proposed advisory board is extremely unbalanced, heavily dominated by CVP agricultural users, power contractors and municipal and industrial users, rather than reflecting a balanced representation of all relevant stakeholders.  That imbalance is especially troubling given the CVPIA's environmental objectives, as clearly articulated by Congress over two decades ago.

There are numerous other, specific flaws contained in H.R. 2898.  Let me nevertheless focus on three thematic deficiencies of the bill.  First, this proposed legislation reflects a "top-down" federal drought response strategy-one that would override Endangered Species Act protections for threatened and endangered species and one that runs counter to principles of cooperative federalism.  There is perhaps no aspect of American environmental and natural resources policy that requires a more collaborative federal-state relationship than water management in the American West.  In recent years, federal and California state water managers have developed a strong partnership designed to jointly manage an extreme drought in real-time.  H.R. 2898 threatens that model of cooperative federalism in a way that, if enacted, will prove counterproductive and undermine the state-federal relationship in water management.

Second, H.R. 2898 represents a legislative effort to re-allocate finite water resources by taking water from environmental programs and transferring them to agricultural purposes.  Whatever the wisdom or folly of that policy choice, a preferable strategy would be to "expand the pie" by creating additional water resources in the form of recycling, re-use, desalination and conservation projects, among other strategies.  That approach is notably absent from H.R. 2898.

Third and finally, one thing all relevant stakeholders in California water policy-including agricultural interests--desire and need is greater certainty.  H.R. 2898, by contrast, would appear to inject greater uncertainty into the operation of California's federal and state-operated water systems at a time when the drought is already creating unprecedented strains on those systems.

S. 1894

S. 1894 builds on and improves upon some of the above-described, positive aspects of H.R. 2898.  At the same time, S. 1894 lacks many of the deficiencies of the House bill.  As a threshold matter, S. 1894 is by its terms a temporary measure, which seems appropriate under the present circumstances.  H.R. 2898, by contrast, represents permanent legislation.

The Senate bill, unlike its House counterpart, embodies the "expand the pie" policy noted and endorsed immediately above.  Title III of S. 1894, dealing with "Long-Term Water Supply Projects," quite appropriately focuses on desalination and water reuse.  Section 301 of the bill declares that "climate change and drought resiliency require additional water supply projects to cope with higher probabilities of longer more intense droughts."  Those contemplated water projects are not limited to surface water storage facilities, but also include water recycling, desalination, storm water capture, agricultural and urban water conservation strategies, etc.  S. 1894 incorporates an ambitious program of federal grants to promote and facilitate such projects, thereby "expanding the pie" of available water supplies rather than simply reallocating a portion of finite surface water resources from one important use (environmental purposes) to another (agriculture).

Similarly, and like H.R. 2898, S.1894 seeks to "jump start" and ensure timely completion of several hotly debated surface storage proposals.  But the Senate bill improves upon the House version by expanding the scope of the prescribed feasibility studies to include such additional/alternative water storage strategies as raising existing dam and reservoir systems, increasing groundwater storage, and expanded water conservation initiatives. 

Increasing existing surface reservoir capacity when it is feasible to do so makes sense-especially given the fact that climate scientists warn that future reductions of the Sierra Nevada snowpack (California's largest, natural "reservoir") are a virtual certainty.  And cutbacks in available surface water deliveries from the CVP and SWP have led many agricultural water users to replace that supply through expanded groundwater pumping.  These unprecedented levels of groundwater pumping-especially in California's San Joaquin Valley--have resulted in chronic overdraft of many of California's already-overtaxed groundwater basins.  Therefore, groundwater basin replenishment feasibility studies, as envisioned in S. 1894, provide another type of water storage strategy that can in many cases be achieved at far lesser cost and with fewer adverse environmental impacts than new surface water storage projects.  Such groundwater replenishment projects have the additional, salutary effect of helping to remedy some of the adverse effects of current groundwater overdraft practices, such as subsidence.[2]

Another positive feature of S. 1894 is its focus on California "drought-stricken communities."   (See section 323.) While most Californians have enjoyed uninterrupted water supplies for domestic uses despite the current drought, there are some notable and most unfortunate exceptions.  In some of the most impoverished portions of the state-particularly in rural portions of the eastern San Joaquin Valley-small community water districts wholly dependent on groundwater have recently had their wells run dry.  That is due in major part to the fact that larger agricultural and urban districts are drilling new, deeper wells that deplete the groundwater aquifers and render useless the shallower, pre-existing community water system-owned wells.  S. 1894 notes that nearly 2000 community water service wells in California, which had previously served approximately 10,000 state residents, are now dry.  The affected residents have been reduced to subsisting on delivered bottled water.  S. 1894 appropriately includes as part of its federal drought response strategy financial assistance designed to remedy this economic hardship and environmental injustice.

Of critical importance, a key difference between the two bills is that S. 1894 does not legislate significant revisions to and partial repeals of the Endangered Species Act affecting California.  I.e., the troublesome, ESA-related provisions in H.R. 2898 referenced above are notably absent from the Senate bill.

Finally, S. 1894 is superior to H.R. 2898 in that it better reflects the cooperative federalism model upon which successful federal-state water management and drought response depend.  One prominent example is S. 1894's inclusion of federal financial support for California state and federal "drought resilience projects."  Sections 401-412.  The Senate bill similarly offers federal support-on a cost-sharing basis--for integrated water management strategies that California water districts are beginning to pursue and that need to be further incentivized.  See section 421.  And S. 1894 is careful to emphasize that it does not seek to displace or modify longstanding water rights protected under California state law.  See, e.g., section 113.  The bill affords similar comity to state water quality and related laws.  Ibid.

Conclusion

For the foregoing reasons, I believe the Committee should approve S. 1894 and decline to approve H.R. 2898.

I am grateful to the Committee for the opportunity to testify on this most important and timely subject.  I would be pleased to respond to any questions members of the Committee may have.

 


[1] Several of my U.C. Davis faculty and research colleagues recently published an academic study concluding that California agriculture has shared in this recent economic prosperity.  That August 2015 report, prepared for the California Department of Food and Agriculture, indicates that the state's $46 billion-a-year agricultural output remained robust through a fourth year of drought, even in the face of significant surface water delivery cutbacks from the CVP and SWP.  See,
http://californiawaterblog.com/2015/08/18/drought-bites-harder-but-agriculture-remains-robust/

[2] S. 1984 could actually be improved by more heavily and explicitly incorporating groundwater storage as an important, long-term drought response strategy for California.  Many experts believe that groundwater storage strategies are more promising and cost-effective than new surface storage projects.  Meanwhile, H.R. 2898 wholly ignores groundwater storage options, and focuses exclusively on surface water projects.

 

May 1, 2015

New Research from the Faculty at UC Davis School of Law

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" Free Download
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" Free Download
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" Free Download
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" Free Download
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" Free Download
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" Free Download
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" Free Download
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" Free Download
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" Free Download
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

 

March 13, 2015

"Future of CEQA" Symposium Receives Coverage in Sacramento Bee

Our Environmental Law Society's symposium on the future of CEQA received a nod from the Sacramento Bee today:

Among the most intractable debates of California politics is what to do about the California Environmental Quality Act, or CEQA, the 1970 law regulating the environmental impacts of development projects. Defenders hold it up as a crucial protection, while business interests and local governments are exacerbated by what they see as overly burdensome requirements and abuses of the process to block construction. Political forces as large as Gov. Jerry Brown have been unable to maneuver a comprehensive overhaul of the law.

A day-long symposium hosted by the Environmental Law Society at UC Davis School of Law will explore the challenges and the future of CEQA. Kip Lipper, the Senate president pro tem's chief policy adviser on energy and the environment, kicks things off with a discussion of recent legislative developments. Sessions follow on nontraditional uses of CEQA, the implications of adding consultations with Native American tribes to the law, and how CEQA factors into the development of California's high-speed rail project and efforts to address climate change.

Representatives from the California Air Resources Board, the Governor's Office of Planning and Research, and the Department of Water Resources are scheduled to participate in the symposium, which begins at 9 a.m. at the UC Davis School of Law.