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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."

 

January 7, 2019

Assessing–and Celebrating–California Governor Jerry Brown’s Environmental Legacy

By Rick Frank

[Cross-posted from LegalPlanet]

Governor Brown Easily Ranks as the Top Environmental Governor in State History

Don’t it always seem to go

That you don’t know what you’ve got

`Til it’s gone

        –Joni Mitchell (“Big Yellow Taxi”)

On this, the last day of Jerry Brown‘s tenure as California’s governor, it’s appropriate to reflect on Governor Brown’s environmental legacy.  And a most formidable legacy it’s been.

Brown has, quite simply, been the most environmentally conscious and effective governor in California’s 169-year history–by a wide margin.  While he’s served four full four-year terms as Governor, it is over his most recent two terms (2011-19) that Brown’s environmental leadership and achievements have been most prominent.

To a considerable degree, the success of Governor Brown’s administration can be attributed to the assemblage of top leaders he recruited and appointed to the state’s most important environmental positions.  Here’s a brief list:

California Secretary for Environmental Protection Matt Rodriquez has been the most effective CalEPA Secretary in the history of that office.  Leading a sprawling cabinet-level agency, Rodriquez has ably led California’s pollution control and water resource management efforts.  One of his most important achievements has been directing California’s successful efforts to transform environmental justice from an aspiration into a tangible set of goals and programs.

Secretary for Natural Resources John Laird has been quietly effective in directing California’s natural resource management agencies, implementing the California Environmental Quality Act and leading the state’s climate change adaptation efforts.  One of Laird’s first challenges was to address–successfully–some longstanding problems the Brown Administration inherited at the state Department of Parks and Recreation and the Department of Conservation’s Division of Oil and Gas.  Once those reforms were implemented, the Natural Resources Agency has operated smoothly and well under Laird’s direction.

The Brown Administration’s most high-profile environmental official is Mary Nichols, Chair of the California Air Resources Board.  Nichols actually served as Governor Brown’s CARB Chair twice–in his first administration in the 1970’s and `80’s, and then again during his most recent two terms as governor.  Under Nichols’ stellar leadership, CARB has emerged as the nation’s most respected and effective regulatory agency concerning both conventional air pollution control and in implementing California’s pioneering greenhouse gas emission reduction goals.  (Fortunately, Nichols has agreed to continue her leadership role at CARB for at least the first phase of Governor-elect Gavin Newsom’s incoming administration.)

Similarly, Felicia Marcus has proven to be a most effective leader of the influential State Water Resources Control Board.  The Board oversees California’s myriad water pollution control efforts, and also administers the state’s complex (and always-controversial) water rights system.  A veteran environmental lawyer and policymaker, Marcus has been especially effective in leading California’s drought response efforts during Governor Brown’s recent tenure.  The five-member Water Board appointed by Governor Brown is the most progressive in the history of the Board.  (One of incoming Governor Newsom’s most consequential, initial personnel decisions will be whether to reappoint Marcus as Chair of the Water Board.  He should.)

Ken Alex has worn two environmental hats in the Brown Administration over the past eight years: as Director of the Governor’s Office of Planning and Research, he has revived a previously-moribund office, led the state’s land use planning efforts and chaired California’s Strategic Growth Council, which is responsible for coordinating the state’s multifaceted climate change programs.  Alex also has been Governor Brown’s most prominent day-to-day environmental advisor “inside the horseshoe.”  One of his most outstanding achievements has been leading Governor Brown’s efforts to forge greenhouse gas reduction agreements with scores of subnational governments around the world.

Another excellent Brown appointee has been Chuck Bonham, Director of California’s Department of Fish and Wildlife.  Once a backwater agency primarily responsible for issuing fishing and hunting licenses and setting fish and game limits, the Department in more recent years has been delegated a wide array of environmental responsibilities: administering California’s Endangered Species Act; oil spill response; CEQA consultation; and ecosystem management.  The Department of Fish and Wildlife has in the 21st century been one of the “lightning rod” agencies of California state government.  But under Bonham’s steady leadership, the Department has prospered and earned widespread respect.

Governor Brown also deserves kudos for his thoughtful appointments to numerous other state boards and commissions responsible for environmental policymaking.  His appointees to the California Public Utilities Commission have dramatically improved the policies and culture of that previously-troubled agency.  Brown’s appointees to the California Energy Commission and California Coastal Commission have similarly made those bodies more effective and respected.  And Governor Brown’s appointments to the bistate Tahoe Regional Planning Agency include Clem Shute and Bill Yeates, two of California’s most well-respected and thoughtful environmental lawyers.

Ultimately, however, it all comes back to Governor Jerry Brown.  And Governor Brown’s environmental accomplishments go well beyond making a stellar batch of executive appointments.  Over the past eight years, Brown has demonstrated a commanding and prescient vision when it comes to energy policy, water issues and–most importantly–climate change policy.  That vision has been especially critical over the last two years of Brown’s governorship, when he’s emerged as a state bulwark against the misguided and unprincipled environmental policies emanating from Washington, D.C.  Finally, Governor Brown’s environmental leadership extends to serving as California environmental educator-in-chief: he’s been willing to speak directly and clearly to 40 million Californians about climate change, renewable energy, finite state water supplies and wildfire response.  And he’s done so most effectively over the past eight years.

To be sure, Governor Brown’s environmental record is not perfect: for example, he’s received criticism from environmental groups for his policies regarding oil drilling and fracking.  In recent months, Brown has seemed too willing to bend environmental rules to direct more water to California’s agribusiness interests.  And he leaves office without having been able to forge strong public support behind one of his legacy projects, bringing a high speed rail system to California.

But it would be a mistake to let the perfect be the enemy of the good when it comes to Governor Brown’s environmental legacy.  There’s little doubt that history will view Brown as the most visionary and effective environmental governor in state history.  And that, to this observer, is a most accurate assessment.

As Joni Mitchell aptly observed, you don’t know what you’ve got `til it’s gone.  As he departs the Governor’s Office, let’s take a moment to reflect on and celebrate Jerry Brown’s environmental record.

Here’s offering a tip of the cap, Governor Brown.  When it comes to California’s environment, you will be most sorely missed.

 

January 2, 2019

Episode 30: "The 25th Amendment"

The latest episode of the "What Trump Can Teach Us About Con Law" podcast explores President Grover Cleveland's secret surgery, the 25th Amendment, and what the Constitution tells us about presidential fitness, disability and President Donald Trump.

 

January 2, 2019

Top 10 immigration stories of 2018

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Trump

1. President Donald J. Trump

Day in and day out in 2018, President Trump was at the center of the nation's immigration news.  Building on his immigration policies during his first year as President, Trump continued to push the most aggressive set of immigration enforcement measures of any modern U.S. President.  Indeed, he ended the year on a high profile note.  When Congress refused to meet his demand for $5 billion in funding for a wall along the U.S./Mexico border, President Trump was willing to shut down the entire U.S. government at year end.  As of this writing, there is no end to the shutdown in sight. 

From day one of his campaign for the presidency, Trump has pushed the border wall.  And nothing has changed.  Earlier this month, the President tweeted the image below of a design for the wall, remarking: "Our Steel Slat Barrier which is totally effective while at the same time beautiful."

Detention, including the family separation policy discussed separately below, has been one of the focal points of the Trump administration's immigration enforcement policy.  The conditions of detention have been under fire.  That is likely to continue because, in December, two children in immigrant detention died, provoking controversy and concern.

The Trump administration's initiatives are too many to list here.  Still, a few are worth highlighting.  The Trump administration announced the end of Temporary Protected Status for approximately 200,000 Salvadorans.  The administration also stripped TPS status from Hondurans, Nicaraguans, Sudanese, and Haitians.  It also proposed tightening the "public charge" rule for admissions and limiting eligibility to asylum seekers to those who presented themselves at ports of entry.  The Department of Commerce's proposed a citizenship question on the 2020 Census provoked controversy and litigation.

2. U.S. Government Shutdown Over Border Wall

With Congress and the President at an impasse over border wall funding, the U.S. government suffered a partial shutdown.  There also was an earlier shutdown over immigration.  Although the news was jolting in the beginning, the nation handled the holidays well-enough without a budget and a federal shutdown.

A two-year-old Honduran asylum seeker cries as her mother is searched and detained near the U.S.-Mexico border (John Moore/Getty Images )

3. Family Separation Policy

To deter Central Americans, including many women and children fleeing rampant gang and other violence, from coming to the United States, the Trump administration adopted a policy of separating parents and children  in immigrant detention.  The family separation policy provoked mass protests and bipartisan resistance.  Pictures like the one above galvanized the nation.  Ultimately, President Trump ended family separation.  But his administration took months to reunite families.

=caravan

Central American immigrants take part in a caravan heading to the United States on the road linking Ciudad Hidalgo and Tapachula, Mexico, on October 21, 2018. Pedro Pardo / AFP / Getty

4.  The Caravan

Over the year, President Trump on several occasions attacked the "caravan" of Central Americans coming to the United States.  Photos of the caravan provoked concern.  Republicans, including President Trump, used the specter of "the caravan"  to build support for extreme immigration enforcement measures.  President Trump characterized the caravan as an invasion and tried to use it in an attempt to spark a Republican comeback in the midterm electionsMission was not accomplished and the Democrats regained control of the House!

 

 Sct

5.  Supreme Court

The Supreme Court continued its steady diet of  immigration cases and immigrants continued to win more than they lost.  In the 2018 Term, the Court struck down as unconstitutional two provisions of the immigration laws.  At the same time, in a 5-4 vote, the Court upheld the third draft of the "travel ban" in Trump v. Hawaii

This Term, the Court heard arguments in an immigrant detention case.  The Trump administration has made detention a core part of its overall immigration enforcement strategy.

More recently, the Court in December refused to stay an injunction barring implementation of President Trump's new restrictive asylum policy.

At some point in the future, the Court will likely decide whether the Trump administration should be permitted to rescind DACA, which to this point been enjoined by three federal courts.  See below.

330px-Jeff_Sessions _official_portrait

6.  Jeff Sessions Steps Down as Attorney General

Attorney General Jeff Sessions was an immigration hawk and Trump loyalist.  Among other things, he oversaw efforts to pressure immigration judges to close open cases and narrow asylum eligibility.  Sessions also took on -- mostly losing -- efforts to fight "sanctuary" states and cities.  Because of President Trump's unhappiness with Sessions over his recusal in the Robert Mueller investigation,  Sessions was forced out.  He took so many insults and barbs from the President that some Democrats almost felt sorry for him.

7. The Rescission of DACA

In September 2017, Attorney General Sessions announced the rescission of DACA.  As I have written, the rise and fall of DACA will likely affect the future of immigration law.  Three courts have enjoined the rescission of the policy and Ninth Circuit affirmed an injunction.  It may take a while but the Supreme Court ultimately will likely decide the fate of the DACA rescission.

8.  Midterm Elections

Despite President Trump and others seeking to make immigration enforcement the central campaign issue, the Republicans kept the Senate but lost the House.  The new Democratic House is likely to put the administration, and its immigration policies, under scrutiny.

330px-Associate_Justice_Brett_Kavanaugh_Official_Portrait

9.  Brett Kavanaugh is confirmed as a Justice on the Supreme Court.

It was not pretty but the Senate confirmed conservative Brett Kavanaugh as an Associate Justice on the Supreme Court.  Given his record on the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear many immigration cases, it is hard to predict how he will approach immigration cases.  With a limited record on immigration, there are only hints of his views on the topic, including some from dissents in cases involving a teen immigrant detainee seeking an abortion and an immigration employment case.

10.  Death on the Border Continues

Maybe this does not make the headlines, but deaths of migrants on the U.S./Mexico border continue.  Increased enforcement in major border cities has resulted in migrants traveling through mountains and deserts where they are more likely to die.

Death on the Border: The Thousands of Bodies Along the US-Mexico Border

The death toll mounts but nothing seems to happen.  Is there anyone out there?

HONORABLE MENTION

UC_Berkeley_School_of_Law_logo.svg

Boalt Hall Changes Name:  Yes, this has an immigration angle.  UC Berkeley School of Law has long gone by the name "Boalt Hall."  It was named after John Boalt, who  published an anti-Chinese screed at the height of the Chinese exclusion era.  A committee recommended a name change and UC Berkeley School of Law, or Berkeley Law, is now the official name of the school.  Here is the Berkeley Law explanation of the name change.