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April 10, 2019

Enhanced Scrutiny on the Buy-Side

[Co-written with the Hon. J. Travis Laster and cross-posted from Harvard Law School Forum on Corporate Governance and Financial Regulation]

Editor’s Note: Afra Afsharipour is Senior Associate Dean for Academic Affairs and professor of law at UC Davis School of Law; The Honorable J. Travis Laster is vice chancellor of the Delaware Court of Chancery. This post is based on their recent article, published in the Georgia Law Review, and is part of the Delaware law series; links to other posts in the series are available here.

Empirical studies of acquisitions consistently find that public company bidders often overpay for targets, imposing significant losses on bidder shareholders. Research also indicates that the losses represent true wealth destruction in the aggregate and not simply a wealth transfer from bidder shareholders to target shareholders.

Numerous studies have connected bidder overpayment with managerial agency costs and behavioral biases that reflect management self-interest. Agency theorists in law, management, and finance argue that agency costs explain bidder overpayment—that is management pursues wealth-destroying acquisitions at the expense of shareholders. Numerous studies provide evidence that acquisitions offer significant benefits to bidder management—particularly bidder CEOs—in the form of increased compensation, power, and prestige. For example, studies have found that CEOs are financially rewarded for acquisitions in the form of large, new options and grants, but are not similarly rewarded for other types of major transactions. A second, complementary contributor to bidder overpayment is behavioral bias, such as overconfidence and ego gratification. Managers may overestimate their ability to price a target accurately or their ability to integrate its operations and generate synergies. They may also get caught up in the competitive dynamic of a bidding contest, leading to the winner’s curse. Studies have shown that social factors can undermine decision making and lead to poor acquisitions. These factors include the existence of extensive business or educational ties between the managers of the bidder and target firms, the presence of fewer independent directors on the bidder’s board, and the desire to keep up with peers.

For purposes of corporate law, these concerns implicate the behavior of fiduciaries—the officers and directors of the acquiring entity—and raise questions about whether those fiduciaries are fulfilling their fiduciary duties.

Beginning in the 1980s, to address circumstances that present a high risk of self-interest, the Delaware courts began to develop an intermediate standard of review known as enhanced scrutiny. The situations evaluated in these cases did not encompass the flagrant self-dealing often observed in traditional duty of loyalty cases, but instead involved the potential risk of soft conflicts and fiduciary self-interest. Much of Delaware’s enhanced scrutiny jurisprudence was developed through scrutiny of decisions by sell-side fiduciaries. We argue that the enhanced scrutiny framework has become a means of screening for improperly motivated actions “when the realities of the decision-making context can subtly undermine the decisions of even independent and disinterested directors.” (Reis v. Hazelett Strip-Casting Corp., 28 A.3d 442, 457 (Del. Ch. 2011)).

In the article, we expand on three primary reasons to extend enhanced scrutiny to decisions of buy-side fiduciaries. Most importantly, the core conflict-derived rationale that supports applying enhanced scrutiny to actions by sell-side fiduciaries applies equally on the buy-side M&A scenarios. The decision to undertake a significant acquisition differs from other routine business judgments taken by directors and officers. As in the sell-side scenario, acquisitions are often large transactions that are plagued by subtle personal interests that affect the decision-making process. Empirical evidence suggests that in acquisitions, particularly significant acquisitions, the business judgment of boards is contaminated by the interests of managers on whom boards of directors rely. The board’s judgment is even more contaminated in public company acquisitions where the potential for realization of the value of the transaction is uncertain, but the prestige and compensation connected with purchasing another public company is high.

In addition, the sell-side concern that contingently compensated advisors may magnify the confounding incentives faced by senior managers applies to the buy-side as well. Like potential sellers, potential acquirers regularly hire investment bankers under contingency fee arrangements, which gives the bankers powerful financial incentives to pursue and close deals. Unlike on the sell-side, where the acquisition of a client and the resulting disappearance of a source of business may mitigate the advisor’s eagerness to support a sale, similar relationships on the buy-side reinforce the financial incentive. A longstanding advisor’s personal relationship with management may give the advisor additional reason to support an acquisition that management favors, particularly if a successful acquisition may lead to a bigger company that will purchase more companies in the future.

The real-world decision-making context in which boards operate also supports extending enhanced scrutiny to buy-side decisions. At present, there is reason to suspect that without a jurisprudential prod like enhanced scrutiny, directors may not be sufficiently involved in the buy-side acquisition process—just as they were less involved in the sell-side acquisition process before the systemic shock of cases such as Van Gorkom and Revlon. Descriptive accounts indicate that boards are reluctant to become deeply involved in acquisitions, preferring to leave the process in the hands of management and their advisors, with the board restricting itself to advisory and oversight roles. Although the board theoretically retains ultimate approval authority, once management and its advisors begin to feel committed to a deal and have expended significant resources to move forward on a transaction, abandoning plans can be quite difficult.

Although doctrinally coherent, we caution that extending enhanced scrutiny to the buy-side presents several concerns. Most significantly, applying enhanced scrutiny to buy-side decisions would open the door to well-documented stockholder litigation pathologies that have undermined the effectiveness of the sell-side regime. In recent years, the Delaware courts have strived to lessen the impact of these pathologies. One powerful intervention has been to lower the standard of review from enhanced scrutiny to the business judgment rule if the transaction receives fully informed stockholder approval. Logically, this innovation also would apply to bidder fiduciaries.

It seems likely, therefore, that a principal consequence of applying enhanced scrutiny to bidder decisions would be to induce more buy-side stockholder votes. There are substantial reasons to believe that buy-side stockholder votes would be an effective tool to limit the bidder overpayment phenomenon. And recent empirical literature finds that voting by stockholders can provide an important counterbalance to guard against the self-interest and biases that lead to bidder overpayment.

On balance, extending enhanced scrutiny to decisions by buy-side fiduciaries should lead to a superior regime in which stockholders can provide a meaningful check on bidder overpayment.

The complete article is available for download here.

 

April 1, 2019

California must act to protect state's remaining wetlands from Trump's destructive plans

[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.

Richard M. Frank is professor of Environmental Practice and director of the California Environmental Law & Policy Center at U.C. Davis School of Law. David Mogavero is senior partner of Mogavero Architects in Sacramento.

Read more here: https://www.sacbee.com/opinion
/op-ed/article228596469.html#storylink=cpy
Read more here: https://www.sacbee.com/opinion/op-ed/article228596469.html#storylink=cpy

 

April 1, 2019

A consumer DNA testing company's alarming new marketing pivot

[Cross-posted from Slate.com]

Sometimes a marketing pivot serves a truth-telling function. A new television ad for the consumer DNA database FamilyTreeDNA asks the public to share their DNA with the company not to find out whether they’re at high risk for breast cancer, whether their ancestors were black, or what their Spotify playlist should include. Instead, the father of Elizabeth Smart, who was abducted in 2002, observes that “when a loved one is a victim of a violent crime, families want answers. … If you are one of the millions of people who have taken a DNA test, your help can provide the missing link.”

FamilyTreeDNA makes explicit the use of consumer DNA testing that law enforcement agencies have increasingly relied on to solve cases. When police identified Joseph DeAngelo in 2018 as the suspected Golden State Killer responsible for a series of rapes and murders in California several decades ago, they did so with the aid of genetic genealogy: the combination of genetic matching and traditional genealogical methods. Police uploaded crime scene DNA to GEDmatch, a free service where people submit genetic information (typically from consumer testing services like 23andMe) to find relatives and ancestors. A genetic genealogist combined the identification of those genetically related to the then-unknown suspect with genealogical aids like birth records and newspaper clippings. DNA taken from his trash and car door confirmed the match between DeAngelo and the crime scene evidence.

The two largest DNA testing companies take the position that they will provide customer data only with a lawful order like a subpoena or a warrant. Indeed, 23andMe is explicit in its position of using “all practical and legal administrative resources to resist such requests.” FamilyTreeDNA distinguishes itself by not just allowing law enforcement access to its consumer data but embracing the tactic. It asks consumers to contribute genetic information for the express purpose of helping the police solve crimes.  (If you’ve taken a DNA test elsewhere with a competing company, you can upload your file for free to FamilyTreeDNA.) This marketing shift follows its earlier acknowledgment that the company had already been working with the FBI.  As a result, the company is effectively crowdsourcing criminal investigations.

But when you volunteer your DNA sample, you’re volunteering your genetic family tree, without having asked your parents, siblings, cousins, and distant cousins if they agree. That upends the usual way we think about providing information to law enforcement. You can’t give the police lawful consent to search your third cousin’s house, even if your third cousin (who you may never have met) is suspected of having been involved in a serious crime. Why are we allowing a distant relative to grant police permission to your DNA?

When you volunteer your DNA sample, you’re volunteering your genetic family tree.

And genetic genealogy creates difficulties for the relative who objects to your volunteering the genetic family tree to law enforcement. A woman whose DNA on GEDmatch recently helped lead to the arrest of a second cousin twice removed told a local Iowa newspaper that before she got the test done, her brother raised concerns about getting a family member arrested. But her brother’s objections didn’t mean much.  The consumer DNA companies don’t appear to allow relatives to raise privacy objections to submitted genetic samples. And should a relative later be charged with a crime with the help of genetic genealogy, the Fourth Amendment would be unlikely to allow the relative turned suspect to object to the way he was identified. Even if a relative convinced you that the submission of a DNA sample to a consumer database was regrettable, it turns out that “deleting your DNA” is a very difficult thing to do.

Becoming a genetic informant on your extended family isn’t the only issue here. On its website, FamilyTreeDNA says law enforcement access to its database is limited to cases “identifying the remains of a deceased individual or a perpetrator of a homicide or sexual assault.” Today law enforcement agencies appear to be relying on these consumer DNA databases for long-unresolved homicide cases. And few would object to solving the Golden State Killer case, which involved dozens of violent crimes spanning more than a decade. For now, the genetic genealogy used in that case is time-consuming, and following all of the potential leads raised by a partial DNA match takes considerable police resources.

But if history is any guide, these means will become easier and cheaper to use.  Police already use direct DNA matches to solve crimes like auto theft and burglary.  Imagine if a distant relative’s decision to submit DNA led to your 13-year-old self being arrested for spitting on the bus.

Perhaps you wouldn’t object. Perhaps you think everyone committing a crime, no matter how minor, should be caught. Then, legislators should have a direct and open conversation about a population-wide database: a DNA sample compelled from every person in the United States for the purposes of law enforcement. If that is the goal, we should arrive there directly, not as a de facto matter.

And that leads to perhaps the biggest question raised by FamilyTreeDNA’s ad spot. These are urgent questions about the proper balance between privacy and law enforcement and individual and familial rights. Yet it is a private company making these policy choices, changing the conversation, and shaping its terms. Few would respond well to the question: “Join us as a genetic informant!” But many will likely be moved to “help bring closure to families and victims.” Nor should we forget that while contributors may feel altruistic, the company has many motives. Although uploading your genetic file is free, you can “unlock” all of the company’s features for only $19.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

March 26, 2019

Justices' Immigration Detention Ruling May Have Small Impact

[Cross-posted from Law360]

In ramping up immigration enforcement, the Trump administration has expanded the use of detention. As with many of his policy initiatives, President Donald Trump has added his own rhetorical and policy flourish to aggressive enforcement efforts.

Through an executive order issued within days of his inauguration, he declared the end of “catch and release” of noncitizens (i.e., allowing them a possibility of bonding out of custody pending their removal hearings) and later instituted a policy of separating Central American parents and children in immigration detention. This latter policy provoked a national — and bipartisan —furor that led to its speedy abandonment.

Nonetheless, immigrant detention continues to be central to the Trump administration’s response to Central American asylum seekers. At a critical juncture in contemporary immigration enforcement, the U.S. Supreme U.S. Supreme Court ’s 5-4 decision last week in Nielsen v. Preap[1] expanded executive power to detain immigrants.

Along with noncitizens associated with terrorism, “criminal aliens” are often targeted for harsh treatment under the U.S. immigration laws. A large portion of the removals from the United States of lawful permanent residents each year are of immigrants convicted of crimes. The executive branch, including when Barack Obama was president, lost in the Supreme Court several removal cases based on relatively minor criminal convictions.[2]

Congressional amendments in 1996 toughened the immigration statute to require mandatory detention of certain categories of “criminal aliens." In Demore v. Kim (2003),[3] the Supreme Court upheld the lawfulness of detention of immigrants convicted of certain crimes pending their removal from the United States under 8 U.S.C. § 1226(c).

Less than two years ago, the court grappled with the right to a bond hearing for immigrants convicted of crimes placed in detention in Jennings v. Rodriguez (2018);[4] after holding re-argument in the case, the court, in an opinion by Justice Samuel Alito, held that the statute did not require a bond hearing and remanded the case to the court of appeals to address the constitutionality of mandatory detention.

The contemporary use of detention by the Trump administration heightened the attention paid to the Supreme Court’s review of the complicated statutory question of immigrant detention in Nielsen v. Preap. Entering the United States as a refugee from Cambodia in 1981, Mony Preap had several convictions, mostly small-time drug convictions.

Released from criminal custody in 2006, he was not arrested by the U.S. immigration authorities until 2013. The U.S. government placed two other plaintiffs, Juan Lozano Magdaleno (who entered the United States from Mexico in 1974) and Eduardo Vega Padilla (a Mexican citizen who entered the country in 1966), into immigrant detention five and 11 years, respectively, after their release from state custody.

Two class actions and a group of habeas corpus cases challenged the lawfulness under the immigration statute of U.S. government arrests of lawful permanent residents long after release from state custody. Importantly, the lawsuits did not challenge the statute on constitutional grounds but only claimed that the detention was not authorized by the statute.

8 U.S.C. § 1226(c) provides that the U.S. government “shall take into custody any alien [described in subsequent sub-sections as being convicted of certain crimes and being related to persons engaged in `terrorist activities’] ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ....” (emphasis added). The U.S. Court of Appeals for the Ninth Circuit had held that the statute only authorized detention immediately upon the release of the immigrant from state custody.

In immigration cases that come before the Supreme Court, the issues raised generally boil down to the interpretation of the immigration statute, which is famous for its complexity, and, when appropriate, the deference properly afforded the agency’s interpretation. In the end, the proper textual interpretation of Section 1226(c) was at the center of the disagreement among the justices in the case of Nielsen v. Preap. The court found that the statutory language was clear and that resort to deference doctrines was unnecessary.

Justice Alito, joined in full by Chief Justice John Roberts and Justice Brett Kavanaugh, and in large part by Justices Clarence Thomas and Neil Gorsuch, held that the Ninth Circuit’s interpretation of Section 1226(c) was contrary to the plain text and structure of the statute. The court instead found that the statute allowed detention even if the U.S. government did not assume custody until after — indeed long after — release from state custody.

Telegraphing the final outcome, Justice Alito’s opinion began as follows:

"Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided ... Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism." (emphasis added).

Thus, in interpreting the statutory language, the court emphasizes at the outset the importance of the fact that the detention at issue involves immigrants who “committed certain dangerous crimes” and those with “connections to terrorism,” two particularly disfavored groups of noncitizens under the immigration laws.

In concluding that the plain language of Section 1226(c) allowed immigrant detention long after release from state custody, the majority engaged in a textual analysis that only a grammarian could love. The majority painstakingly reviewed the language of the statutory provision in question and emphasized that it applies to noncitizens convicted of crimes as well as relatives of terrorists.

Relying on, among other things, definitions from a couple of dictionaries, and a book on interpretation co-authored by the late Justice Antonin Scalia (A. Scalia & B. Garner, "Reading Law: The Interpretation of Legal Texts" (2012)), the majority found that the immigrants were subject to mandatory detention “even if (as with respondents) the Secretary did not arrest them immediately `when’ they were `released.’” Justice Alito justified that conclusion by noting that “respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control,” (citation omitted), such the refusal of state and local government to cooperate with federal immigration officials.

Among the cases that the majority relied on in support of its interpretation of 8 U.S.C. § 1225(c) was its decision in United States v. Montalvo-Murillo (1990).[5] In that case, the court held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not ban detention after a tardy hearing.” (citation omitted).

The majority concluded that, because the statute was not ambiguous, the canon of construction calling for the interpretation of the statute to avoid constitutional questions did not apply. In reaching that conclusion, the court relied on Jennings v. Rodriguez, in which the court reached a similar conclusion in finding that the statutory provision in question did not provide for a periodic bond hearing for immigrants held in detention.

Going out of its way to emphasize that no constitutional questions were before the court, the majority concluded its analysis of the statute as follows: “While respondents might have raised a head-on constitutional challenge to § 1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges — that is, constitutional challenges to applications of the statute as we have now read it.” Based on that invitation, expect future as-applied constitutional challenges.

For a plurality of the court, Justice Alito, joined by the chief justice and Justice Kavanaugh, relied on Jennings v. Rodriguez to conclude that the immigration statute allowed for judicial review. As in that case, the immigration statute’s framework could be challenged even though the statute bars review of discretionary judgments by immigration officials in individual removal cases. In addition, Justice Alito reasoned that, because there was at least one named plaintiff with a live case when the class was certified, the case was not moot.

Although agreeing with the majority’s analysis of Section 1226(c), Justices Thomas and Gorsuch disagreed on the issue of judicial review. Justice Thomas reiterated what he said in his concurrence in Jennings v. Rodriguez — that the court lacked jurisdiction of class actions under 8 U.S.C. § 1252(f)(l), which he reads as barring such review. Justice Kavanaugh “wrote separately to emphasize the narrowness of the case before us ...” He emphasized that the sole question before the court was the interpretation of the statute to determine whether the executive branch had “to immediately detain the noncitizen when the noncitizen is released from custody ..” (emphasis in original).

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, dissented. As highlighted in news reports on the decision, Justice Breyer
firmly rebutted Justice Kavanaugh’s claim that the issue decided by the court was “narrow”:

"Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without possibility for release; they may have been convicted of only minor crimes ... Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible to receive a form of relief from removal ... Thus, in terms of potential consequences and basic American legal traditions, ... the question before us is not a 'narrow' one ... "

Justice Breyer’s dissent emphasizes that the language and structure of the statute, as well as the canon of constitutional avoidance, all undercut the majority’s interpretation of the statute. He emphasized the importance of the question because, under the majority’s interpretation, the immigrant would be detained without the opportunity to bond out of custody — and thus would be detained even if not determined to be a flight risk or a danger to the community.

Like the majority, Justice Breyer closely parsed the language of the statute. He, however, did not find the interpretation “plain” and reached a contrary conclusion. His interpretation was that “[t]he words `when the alien is released’ require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody — presumptively no longer than six months.”

Offering an interesting insight into the former law professor’s mind, Justice Breyer employed an analogy of a recipe for cooking an Angus steak to illustrate his point of statutory construction. Justice Breyer also would invoke the canon of constitutional avoidance to interpret the statute to avoid constitutional questions that might be raised in the event of an arrest years after release from state custody and the denial of a bond hearing. Justice Breyer concluded that “[i]n my view, the Court should interpret the words of the statute to reflect Congress’ likely intent, an intent that is consistent with our basic values ... I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood.”

Nielsen v. Preap is but another step in the expansion of executive power over immigrant detention. The court so held in a time when the U.S. government is aggressively detaining immigrants and promises to do more. Although continuing that trend, the holding will not likely have a huge impact on immigration law and immigration detention.

As Justice Kavanaugh made clear, the court did not address the constitutionality of detention without the possibility of bond, an issue that it remanded to the lower court in Jennings v. Rodriguez. The constitutional question thus remains alive and likely will be before the court again. More generally, all of the justices carefully parsed the text of the statute and considered the statutory structure. They took the task of judicial review seriously. In that way, the court’s approach continues the court’s move toward the “normalization” of immigration law, applying ordinary methods to interpreting the immigration statute.

[1] https://casetext.com/case/nielsen-v-preap-2

[2] See, for example, Moncrieffe v. Holder, 569 U.S. 184 (2013) (vacating removal order based on conviction for possession of small amount of marijuana) https://www.law.cornell.edu/supct/cert/11-702.

[3] 503 U.S. 510 (2003) https://www.law.cornell.edu/supct/html/01-1491.ZS.html

[4] 138 S. Ct. 830 (2017) https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf

[5] 495 U.S. 711 (1990) https://caselaw.findlaw.com/us-supreme-court/495/711.html

March 25, 2019

Chile and Migration: The Global Compact for Safe, Orderly and Regular Migration and More

[Cross-posted from Immigration Prof]

 

Last week, I got behind in my blogging while I was in Santiago, Chile, recruiting international scholars and students, presenting talks on immigration, and meeting with alums and friends of UC Davis School of Law. 

During my visit, it became apparent that immigration -- as well as the United States' college admissions scandal -- was a hot topic.  As discussed in this Migration Policy Institute report, Chile has experienced a national debate on immigration. In response to public concern with Haitian, Dominican, and other immigrants, new President Sebastián Piñera has proposed greater restrictions on immigration.  The consensus appears to be that the Immigration Act of 1975 needs to be reformed; however, the Chilean Congress has been unable to act.

Pinera

Chilean President Sebastián Piñera

Pontificia Universidad Católica de Chile

During my visit, I had the privilege of meeting with the deans and faculty at two amazing law schools.  First, I visited Pontificia Universidad Católica de Chile and lectured on judicial review and the U.S. immigration laws.  In this talk, I summarized recent developments in the Supreme Court's review of the constitutionality of the immigration laws and policies.  My ultimate conclusion is that the Court consistently engages in meaningful judicial review of the immigration laws. 

Chile law

Universidad de Chile law school

The next day, I visited the Universidad de Chile law school and delivered the following lecture:

The Global Compact for Safe, Orderly and Regular Migration: The United States and Chile, by Kevin R. Johnson. Remarks presented at the Universidad de Chile Law School, March 20, 2019

In December 2019, more than 150 nations approved the Global Compact for Safe, Orderly and Regular Migration  (Global Compact).  Building on the 2016 New York Declaration for Refugees and Migrants, the Compact continues the process of promoting cooperation, coordination, and dialogue on migration in the international community. It identifies a number of objectives and commitments, primarily directed at cooperation and coordination. The Compact also calls for, among other things, nondiscrimination against migrants and providing proof of identity to migrants in a state.

A number of nations, including the United States, Australia, Chile, and the Dominican Republic, declined to sign the Global Compact. As with other international arrangements, a major concern was that the Compact would result in the surrendering of national sovereignty over immigration. Immigration is a controversial -- indeed explosive -- issue in many nations and strong voices often advocate for national sovereignty and the exercise of power over immigration and immigration controls.

More generally, in the United States President Trump has expressed skepticism about international institutions, including and especially the United Nations. In responding to international trade, immigration, and foreign policy generally, the President has consistently and unequivocally emphasized “America First.”  That approach, of course, places primacy on national sovereignty and serves as a frame for all of the U.S. government’s relations with other countries.

To calm sovereignty concerns with the Global Compact, the Compact did not impose binding obligations on nations but was a non-enforceable promise to cooperate and coordinate migration policies. In fact, the Compact expressly recognized national sovereignty over immigration and enforcement. It specifically provides that:

"[t]he Global Compact reaffirms the sovereign right of States to determine their  national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for   entry, residence and work, in accordance with international law."

Global Compact, Paragraph 15

Reasons Some States May Have Declined to Join the Global Compact

Reasons beyond concerns with ceding national sovereignty also likely contributed to some nations declining to join the Global Impact. The following reasons may have contributed to the decision of the United States, to not sign the Compact:

Immigration Regulation Raises Sensitive Domestic Political Issues

Immigration touches on issues of language, culture, and the sense of national identity. Such issues are controversial in the United States. They also are generally thought of as a primarily domestic, not international, concern and the subject of intense internal debate.

The Omnipresent Concern with Mass Migration.

When it comes to immigration, nations in the developed world often worry about mass migration and see a need to exercise control over immigration, with the corollary need for limits on the number of immigrants coming into the country. Such concerns raise controversial economic, political, social, and cultural issues that affect all people of society. Concerns with mass migration in the United States have hindered efforts at domestic immigration reform. Such reform has been discussed for many years. That is true even though it is generally agreed that the current U.S. immigration regime requires reform. The United States has an antiquated immigration system created by the Immigration and Nationality Act of 1952, which was passed by Congress at a time when exclusion and deportation of communists was paramount. These are not the major immigration concerns of the 21st century. Although amended on numerous occasions, the INA remains the basic U.S. immigration law. 

Concerns with the Long Term Impacts of Previous Migration and Refugee Accords.

Some of the nations’ resistance to the Global Compact may be rooted in concerns with the impact of the implementation of previous international accords, such as the United Nations Convention on the Status of Refugees (1951) and the United Nations Protocol Relating to the Status of Refugees (1967) . Those treaties created powerful -- and binding on states -- international protections for noncitizens who flee persecution or have a well-founded fear of future persecution.

In the United States, the U.N. Protocol led Congress to pass the Refugee Act of 1980, which created the modern asylum system in the United States. Concerns with the numbers of asylum seekers in the United States have provoked concern and tough responses, including immigrant detention, family separation, and the return of Central American asylum seekers to Mexico. Such concerns may have contributed to the resistance to the Global Compact.

Inconsistency with Contemporary U.S. Immigration Enforcement Policies

Immigration policies in the United States today focus primarily on immigration enforcement. Besides not being crafted for the realities of modern migration pressures, the policies are not consistent with the humanitarian spirit of the Global Compact.

President Trump has spoken harshly of immigration and immigrants. He has bolstered immigration enforcement measures and has sought to restrict legal immigration. To that end, the Trump administration, among other things, has issued three versions of the Muslim ban, aggressively employed immigrant detention, and fervently advocated building a wall along the U.S./Mexico border. President Trump frequently declares that the nation’s southern border is in “crisis” and has talked about the “invasion” from the South. Such concerns almost certainly led to a general resistance in the United States to the call for migration cooperation in the Global Compact.       

President Trump also has specifically attacked Muslim, Mexican, Salvadoran, and Haitian noncitizens. The verbal attacks have translated into tough immigration enforcement measures directed at these groups. Although some of these measures have provoked controversy and been halted by the courts, many have gone into effect.           

The harsh tone combined with the tough enforcement measures in the United States have frightened immigrant communities, as well as people with affinities for those communities. Besides striking fear into immigrants, which have impacts on their well-being as well as their cooperation with government, the harsh rhetoric and attacks on immigrants has delayed indefinitely much needed congressional reform to the immigration laws.

The Need for International Cooperation

Global economic and political pressures fuel migration and affect many nations. No single nation can effectively address migration pressures and flows on its own. In the future, nations must recognize the following in addressing migration.

In addition, immigration law and policy affects the rights and well-being of human beings. Harsh policies adversely impact human lives. Nations must work to create humane, as well as manageable and efficient, immigration policies.

At the same time, migration of people from other countries bring changes to the receiving nations. Efforts need to be made to focus not on simply admission and removal but also on policies that facilitate the integration of immigrants into society.          

The Global Compact was designed to facilitate much-needed coordination and cooperation on migration matters. Multilateral work is much needed as nations around the world undoubtedly will continue to experience migration flows. Although some of the migrants are refugees fleeing civil strife or fearing persecution, migration also represents a response to economic opportunity, political freedoms, and family reunification.

Put simply, to effectively manage migration, the international community must work together. Building border walls between nations will not end immigration or the pressures for migration. Instead, international arrangements like the Global Compact offer the hope of the future – to effectively, efficiently, and humanely manage migration in the 21st century.

March 5, 2019

A Legislative Response to California's Housing Emergency: Senator Skinner's SB 330

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.

February 4, 2019

Immigration and Civil Rights in an Era of Trump

By Kevin Johnson

[Cross-posted from ImmigrationProf Blog]

The following is a lightly edited version of my Martin Luther King Jr. Lecture at Valparaiso University Law on January 23, 2019.

I am humbled, honored, and in, fact, awed by the opportunity to give a lecture named after Dr. Martin Luther King Jr. Some wonderful speakers, including my friend Angela Onwuachi-Willig, have delivered the lecture.

Located on a beautiful campus in a beautiful town, Valparaiso University School of Law has a long and illustrious history. As the website states, “law is more than a job; it is a vocation: a responsibility and opportunity to serve others.” These nicely put words concisely set an admirable goal for all of legal education.

Martin Luther King Jr., a civil rights icon, is not well-known for his positions on immigration. However, the principles for which his life stands can guide us in thinking about immigration law and its enforcement. Several principles, which I paraphrase here, struck me as particularly relevant:

  1. People should be judged by “the content of their character,” not “the color of their skin.”
  2. “The arc of moral universe is long but bends toward justice.”
  3. “I choose to give my life to those who have been left out.”

I have spent time considering how immigration is one of the civil rights issues of the new millennium. Please do not get me wrong. I in no way mean to suggest that there are no other civil rights issues. Criminal justice, voting rights, equal educational opportunities, and employment discrimination unquestionably are among those civil rights concerns that deserve our attention. I modestly assert that immigration is among the issues that deserve consideration.

The title of my remarks – Immigration and Civil Rights in an Era of Trump – were designed to afford me flexibility in what I talk about.  This is especially important because President Trump regularly has something new, novel, and newsworthy to say about immigration. Almost every day, it seems, we hear something new from the Trump administration about immigration. Indeed, as I deliver this lecture, the nation is in the midst of the longest shutdown of the U.S. government in U.S. history, a shutdown that centers on a dispute over whether billions of dollars of congressional funding should be provided for a wall along the U.S./Mexico border.

Immigration news from Washington, D.C. has been a constant since President Trump’s inauguration. Just a few months ago, President Trump threatened to issue an executive order ending birthright citizenship as provided by the Fourteenth Amendment. He also declared the “caravan” of migrants from Central America to be a national “crises” and “invasion.” Through a number of policy changes, the Trump administration has sought to remake the asylum system, with little regard to the rule of law. I could go on but you get the general idea.

President Trump’s immigration initiatives share two fundamental characteristics.

First, he consistently seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. These actions generally are contrary to the law prohibiting racial discrimination.

Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, President Trump attacks judges who issue rulings with which he disagrees, calls for changes to our immigration laws that he claims are ridiculous, and all-too-often ignores the law. For example, President Trump, in my estimation, in many instances has sought to limit asylum eligibility in ways not permitted by Congress. To offer another example, few legal scholars believe that President Trump’s has the power call to abolish birthright citizenship. That proposal exemplifies what is becoming more and more apparent:  President Trump feels little need to adhere to the rule of law. This is especially hard for lawyers and law professors to accept.

In the Immigration Act of 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of race, sex, nationality, place of birth, or place of residence. Passed in the wake of the Civil Rights Act of 1964, the 1965 Act repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. The momentum of the civil rights movement led by Dr. King transformed immigration law. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The nation saw a dramatic rise in immigration from Asia; U.S. law had barred Asian immigration from the late 1800s through the first half of the twentieth century.

The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration. Those policies can be aptly characterized as waging war on immigration diversity and the rule of law. President Trump’s immigration actions show a desire to change that diversity, to take the nation back to the past to a time when Asians were excluded, when Mexicans were deported with impunity.

President Trump’s racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially-explosive comments about immigrants. Consider a few:

  •  
    • Mexicans are “rapists” and “criminals”;
    • Salvadorans are MS-13 gang members;
    • Muslims are “terrorists” who should be subject to “extreme vetting”; and
    • El Salvador, Haiti, and nations in Africa are “s***hole countries” and the United States should not be providing safe haven to citizens of those countries.

President Trump has followed up on the incendiary rhetoric with a number of policies, many of them in tension with, if not in outright violation of, the law. In sum, the Trump administration has taken some of the most aggressive immigration enforcement policies in modern U.S. history. The policies almost all aim to restrict noncitizens of color from immigrating to the United States.

I am working now on an article about what I characterize as the “new Latino repatriation.” It shows how many of the administration’s immigration measures in total replicate (1) the Mexican repatriation of the 1930s, in which state, local, and federal governments forcibly “repatriated” persons of Mexican ancestry, including U.S. citizens, to Mexico; and (2) “Operation Wetback” in 1954, a military-style effort to remove Mexican immigrants in the Southwest. Not coincidentally, President Trump has endorsed "Operation Wetback" -- without using its official name -- as a legitimate policy approach to manage migration today.

Consider a few of the Trump administration policies that demonstrate the President’s desire to restrict immigration diversity and, in some instances, have been found to be unlawful.

1.   The Travel Bans

Within days of his inauguration, President Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. The original travel ban was not carefully done and included obvious legal flaws. It, for example, was not clear whether it applied to lawful permanent residents. When the courts enjoined the first travel ban from going into effect, President Trump issued a revised version. The courts struck down the second version as unlawful and, in no small part, because of the President’s anti-Muslim statements. Although a 5-4 Supreme Court in Trump v. Hawaii upheld the third draft of the ban, four Justices would have concluded that the executive order was motivated by anti-Muslim animus, not national security concerns.

2.    “Chain Migration” and Reforming Legal Migration

President Trump has called for ending “chain migration” and dramatically restricting family-based immigration to the United States. In that vein, he has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration. That change would have the greatest impact on prospective immigrants from Mexico, India, and China, the nations that today send the most immigrants to the United States. And cutting legal immigration would likely increase pressures for undocumented migration, as many noncitizens without lawful options for rejoining family will seek to rejoin family members without authorization.

The Trump administration also has sought to restrict legal immigration with a proposed rule that would tighten the “public charge” exclusion. The result is that many immigrants now decline to seek public benefits to which they are lawfully entitled. The rule also would limit migration of poor and working people to the United States, an outcome contrary to the “huddled masses” welcomed in the famous inscription on the Statue of Liberty. In a similar vein, the Trump administration has drastically cut the numbers of refugees admitted into the United States each year.

3.    “Zero Tolerance” Policies

The Trump administration’s “zero tolerance” policies have targeted migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming the policy on the Democrats and the courts.  A public outcry and litigation compelled the Trump administration to end family separation.  As the 2016 midterm elections neared, similar rhetoric was used against asylum seekers from Central America – known as the “migrant caravan” – who were in route to the U.S. border.  Working to build a “crisis” mentality among the general public, President Trump has been waging war on asylum.

a.    Central American Asylum Applicants

Courts have played important roles in halting the administration from engaging in racially charged policies designed to stop Latinx families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, to which President Clinton's Justice Department agreed in 1997.  The Trump administration has railed against compliance with the settlement.  It has proposed to undo the Flores settlement so that the administration can indefinitely detain immigrant children and their families.

Other presidents have taken steps to deter Central American asylum seekers from seeking relief in the United States. But none have taken measures as harsh as those adopted by the Trump administration.

b.   Sanctuary Cities

The Trump administration has challenged “sanctuary” states and cities for refusing to fully cooperate with the U.S. government in immigration enforcement. Although the courts have for the most part blocked those efforts, the administration has tried to halt the flow of federal funds to “sanctuary” cities.   Seeking to capitalize politically on tragedies, President Trump has been quick to blame sanctuary jurisdictions for crime.  It is odd that conservatives -- the traditional defenders of state and local rights when it comes to civil rights -- today challenge local authority and autonomy with respect to immigration and immigrants.

c.    DACA

The Trump administration has sought to eliminate the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy for undocumented youth.  The policy benefited hundreds of thousands of young undocumented immigrants, with more than 80 percent from Mexico and Central America. Courts have enjoined the rescission of DACA.

d.    TPS

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, Hondurans and nationals of other developing nations. TPS allows nationals of nations hit by mass violence or natural disaster to remain temporarily in the United States.  More than 200,000 Salvadorans are threatened with the loss of TPS relief. To this point, courts have enjoined the end of TPS for nationals of El Salvador and other nations..

e.    Removals           

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.  Although many of the crime-removal programs are being carried forward from the Obama administration, the new administration has expanded the efforts and the crimes for which removal will be sought.

****

These policies together would significantly reduce diversity in the number of immigrants admitted to, and permanently reside, in the United States. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress’s goal of promoting diversity in immigration.   The courts have halted many of the more egregious violations of the law.  The defunding of sanctuary cities has been halted.  DACA’s rescission has been halted. Stripping of TPS has been stopped.  Although the travel ban eventually went into effect, litigation refined and narrowed the ban.

Conclusion

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 law that fostered predominantly white immigrants white nation.  Put simply, the unlawful war on immigrant diversity should not be permitted to continue. Political organization has been one response to the Trump immigration enforcement measures.  The rise and fall of DACA energized immigrants’ rights activism and marked the ascendance of a political movement. That may be one of the most important long term impacts of DACA.  An “Abolish ICE” movement has emerged.  Congress has the opportunity to act to reform and improve the immigration laws.

I think that Martin Luther King Jr. would condemn the unjust immigration initiatives of the Trump administration.  He would object to judging immigrants by the color of their skin, not the content of their character.  He would see the current initiatives as contrary to the arc of justice.  Last but not least, Dr. King would call for us to protect immigrants who are “left out” and deserve our protection.

February 4, 2019

Commemorating a Major Environmental Disaster–One With a Transformative Legacy

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.

January 22, 2019

Newsom’s picks for environmental protection and water chiefs will reveal his priorities

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.

 

January 14, 2019

President Trump Again Calls for Billions for a Wall and for Congress to Address the 'Border Crisis'

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Last night (Jan. , President Trump delivered a prime time speech titled "Humanitarian and National Security Crisis on the Southern Border."  Here is the textHere is the CNN "fact check." 

It was President Trump's first prime time speech from the Oval Office [watch here].  The President apparently sought to build support for his adamant stand to force Congress to fund the "border wall," a position that has led to the shutdown of the federal government. 

I eagerly watched the speech in real time and was struck by President Trump's flat and relatively subdued reading of the remarks -- remarks that differed little from his general stump speech on "the wall," the looming border "crisis, and immigration generally.  The speech was a relatively short 8-9 minutes. 

President Trump discussed what he characterized as "uncontrolled illegal migration."  He repeated the claim that undocumented immigration most hurts African American and Hispanic workers, which contrasts sharply with his general insensitivity toward African American and Latino civil rights.  The President Trump also emphasized that drugs flow across the border that kill millions of Americans annually and cost the nation billions of dollars. 

In building up the sense of crisis, the President mentioned "criminal gangs" and human traffickers. Ultimately, Congress must address this "crisis of the heart" and "crisis of the soul."  

President Trump invoked various crimes committed by undocumented immigrants, including the recent tragic killing of a sheriff in the Central Valley of California, and MS13.  He rhetorically asked "how much more American blood must we shed?"

President Trump stated that he has made a proposal to Congress that would end the "crisis."  The proposal -- explained in this fact sheet -- would add resources to border enforcement, including $5.7 billion for a "steel barrier" along the U.S./Mexico border.  He sees the barrier and heightened enforcement measures as "just common sense."

President Trump went on to criticize the Democrats for the government shutdown and depriving the government of the resources to do what is needed to ensure border security.  His is the "only solution" that defends the borders and will reopen the federal government.  To facilitate matters, President Trump said that he would invite congressional leaders to meet. 

After President Trump's speech, House Speaker Nancy Pelosi (D-CA) and Senate Democratic Leaders Chuck Schumer (D-NY) responded. Watch the video.  They blamed President Trump for the shutdown and for attempting to create a climate of "misinformation, malice, and fear" surrounding immigration and the border.  Pelosi emphasized that the migrant children at the border "are not a security threat but a humanitarian challenge."  Schumer stated that President Trump's attempt to concoct a crisis was an effort to "divert attention" from his failing government.

After listening to President Trump and the Democratic response, I found myself uncertain about the prospects for coming to an agreement that will allow for a reopening of the U.S. government.  The President is not moving.  The Democrats are not moving.  Only time will tell where the nation goes from here.  Perhaps it has been said too often in the first years of the Trump administration but it does seem as if we are in uncharted waters.  And no one can say what lays ahead.

UPDATE (4:15 PST Jan. 9): President Trump in his speech talked of meeting with Democratic leaders.  It appears that the meeting did not go well as the dueling speeches did not leave much room for negotiation.  According to CNN, President Donald Trump walked out of discussions to end the government shutdown, calling the talks with congressional Democrats "a total waste of time."