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October 30, 2018

Supreme Court Stays Upcoming Juliana Trial

By Richard M. Frank

[Cross-posted from Legal Planet]

The presently constituted U.S. Supreme Court doesn’t seem to care for climate change litigation or regulation.

On Oct. 19, the Supreme Court took the extraordinary step of freezing pending discovery and the scheduled October 29th trial date in the closely-watched Juliana v. United States litigation.  In a brief order, Chief Justice Roberts stayed all district court proceedings in the Juliana case and ordered the plaintiffs to file a response by Oct. 24 to the Trump administration’s just-filed petition to the Supreme Court seeking to dismiss the case.

Chief Justice Roberts

I’ve previously written about the Juliana case in 2015 when the litigation was first filed in U.S. District Court in Oregon and more recently here and here.  Briefly, in 2015, 21 children from around the United States–-acting under the auspices of the non-profit organization Our Children’s Trust–-filed suit against the United States in U.S. District Court for the District of Oregon. They contend that the federal government has violated the children’s legal rights by failing to take far more dramatic steps to reduce the nation’s greenhouse gas emissions and address urgent climate change concerns.

After U.S. District Court Judge Anne Aiken denied the federal government’s motion to dismiss and scheduled the Juliana case for trial later this month, the Trump Administration’s Justice Department mounted repeated efforts in the appellate courts to stay or dismiss the district court proceedings.  The Ninth Circuit rejected those attempts in separate opinions issued in May and July of this year.  The federal government appealed the Ninth Circuit’s July 2018 decision to the Supreme Court, but in a brief July 30th order Justice Anthony Kennedy rejected the government’s appeal as premature while noting that the breadth of the Juliana plaintiffs’ constitutional and public trust-based claims were “striking.”  In his capacity as the Supreme Court justice serving as “Circuit Justice” for the Ninth Circuit, Justice Kennedy in his order urged Judge Aiken to “take those concerns into account in assessing the burdens of discovery and trial…”  (Notably, Kennedy’s July 30 order in the Juliana case was his last official act as a U.S. Supreme Court justice before retiring the next day.)

Justice Kennedy is now gone, replaced by Brett Kavanaugh, who can be expected to be relatively less sympathetic to “impact” climate change litigation exemplified by the Juliana case.  But today’s remarkable order in the Juliana case is the product of a far less publicized transition at the Supreme Court: Chief Justice Roberts replaced Justice Kennedy as the Circuit Justice assigned to the Ninth Circuit with…himself.  (In recent years, statistics show that the Ninth Circuit is the most frequently-reversed federal circuit court in the nation; this trend may well account for Roberts’ particular interest in the Ninth Circuit’s decision-making.) That’s why Roberts’ name was on today’s order staying proceedings in the Juliana case pending consideration by all nine justices of the Trump Administration’s petition to stay or dismiss the case.

And with the conservatives justices now commanding a solid five-member majority on the Court, I’m not optimistic that the Juliana plaintiffs will ever see the trial of their claims come to pass.

Of course, this is not the first time the U.S. Supreme Court has taken extraordinary and previously-unprecedented steps to sidetrack efforts to address climate change concerns.  In February 2016, the Supreme Court by a 5-4 vote ordered the U.S. Environmental Protection Agency to halt enforcement of the Clean Power Plan promulgated by the Obama Administration in late 2015–the first time the Court had ever stayed a federal regulation before a decision by the lower federal courts.

So it would appear that these days the U.S. Supreme Court isn’t hospitable to either innovative climate change litigation or major climate change regulatory initiatives by the Executive Branch.  That leaves Congress.

Yikes.

September 10, 2018

California court finds public trust doctrine applies to state groundwater resources

[Cross-posted from Legal Planet]

The California Court of Appeal for the Third Appellate District has issued an important decision declaring that California’s powerful public trust doctrine applies to at least some of the state’s overtaxed groundwater resources.  The court’s opinion also rejects the argument that California’s Sustainable Groundwater Management Act (SGMA) displaces the public trust doctrine’s applicability to groundwater resources.

The Court of Appeal’s opinion in Environmental Law Foundation v. State Water Resources Control Board decides two key issues of first impression for California water law: first, whether the public trust doctrine applies to California’s groundwater resources; and, second, if it does, if application of that doctrine has been displaced and superseded by the California Legislature’s 2014 enactment of SGMA.  A unanimous appellate panel answered the first question in the affirmative, the second in the negative.

The facts of the Environmental Law Foundation are straightforward and undisputed: the Scott River is a tributary of the Klamath River and itself a navigable waterway located in the northwestern corner of California.  The Scott River has historically been used by the public for recreational navigation and serves as essential habitat for migrating salmon listed under the Endangered Species Act.

Critically, there are groundwater aquifers adjacent to the Scott River in Siskiyou County that are hydrologically connected to the surface flows of the Scott River.  Local farmers and ranchers in recent years have drilled numerous groundwater wells and pumped ever-increasing amounts of groundwater from those aquifers.  As a direct result, the surface flows of the Scott River have been reduced, at times dramatically.  Indeed, in the summer and early fall months, the Scott River has in some years been completely dewatered due to the nearby groundwater pumping.  The adverse effects on both the Scott River’s salmon fishery and recreational use of the river have been devastating.

Environmental groups and the Pacific Coast Federation of Fishermen’s Associations, relying on California’s venerable public trust doctrine, initially responded to this environmental crisis by petitioning Siskiyou County and the State Water Resources Control Board to take administrative action to limit groundwater pumping in the Scott River watershed.  Both the Board and the County declined to do so.

Plaintiffs responded by filing suit, arguing that groundwater resources that are interconnected with the surface water flows of the Scott River are subject to and protected by the state’s public trust doctrine.  Siskiyou County disputed that claim, arguing that the public trust doctrine is wholly inapplicable to groundwater and that the country has no duty to limit groundwater pumping, even in the face of the resulting environmental damage to the Scott River ecosystem. (The Board, by contrast, eventually reconsidered its position, ultimately adopting plaintiffs’ view that groundwater resources interconnected with surface water flows are indeed subject to the public trust doctrine.)

The trial court concluded that the public trust doctrine does apply to the groundwater resources of the Scott River region.  While the litigation was pending there, however, the California Legislature enacted SGMA, which for the first time creates a statewide system of groundwater management in California, administered at the regional level.  Siskiyou County seized upon that legislation to argue that even if the public trust doctrine would otherwise apply to the County’s groundwater resources, the doctrine was automatically displaced and made inapplicable to groundwater as a result of SGMA’s allegedly “comprehensive” statutory scheme.  The trial court rejected this backstop argument as well, and the County appealed.

The Court of Appeal’s decision today resoundingly affirms the trial court on both issues.  On the threshold public trust claim, the justices rely heavily on the California Supreme Court’s landmark public trust decision, National Audubon Society v. Superior Court.  In National Audubon, the Supreme Court held that the public trust doctrine, a foundational principle of California natural resources law, fully applies to the state’s complex water rights system.  Specifically, National Audubon found that the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine.

The court in the Environmental Law Foundation concluded that the rationale and holding of National Audubon are fully applicable to the facts of the Scott River case.  Rejecting the County’s argument that extractions of groundwater should be treated differently from the diversions of surface water that were found in National Audubon to be causing environmental damage to Mono Lake, the Court of Appeal declares:

“The County’s squabble over the distinction between diversion and extraction is…irrelevant.  The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violates the public trust.”

Accordingly, the Environmental Law Foundation court concludes that the public trust doctrine fully applies to extractions of groundwater that adversely affect navigable waterways such as the Scott River.

Turning to the County’s SGMA-based defense, the Court of Appeal had little difficulty concluding that by enacting that statute the Legislature did not intend to occupy the entire field of groundwater management and thereby abolish the public trust doctrine’s application to the groundwater resources at issue.  (The County had argued that SGMA’s enactment not only relieves the County of any public trust-related duties, but also precludes the State Water Resources Control Board from acting to protect public trust resources from environmental damage resulting from excessive groundwater extractions.)  The Court of Appeal concludes:

“[W]e can evince no legislative intent to eviscerate the public trust in navigable waters in the text or scope of SGMA…We conclude that the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

Environmental Law Foundation v. State Water Resources Control Board represents an important judicial ruling concerning the public trust doctrine’s application to California’s water resources–perhaps the most important since the California Supreme Court decided the iconic National Audubon decision 35 years ago.  Additionally, Environmental Law Foundation is the first California appellate decision expressly applying the public trust doctrine to (at least some of) the state’s groundwater resources.  It’s also the first appellate decision interpreting SGMA, although that decision limits the application of the statute and harmonizes it with longstanding California public trust doctrine.

Perhaps most importantly, the Environmental Law Foundation opinion represents yet another ringing judicial affirmation of the public trust doctrine’s continuing, vital and foundational role in California natural resources law and policy.  The California judiciary has in recent years consistently given a robust interpretation to and application of the public trust doctrine.  Environmental Law Foundation is but the latest manifestation of that most welcome and trend.

(Full disclosure notice: the author of this post serves as counsel of record for the prevailing plaintiffs in the Environmental Law Foundation v. State Water Resources Control Board case.)

April 30, 2018

Native American Treaties, Declining Salmon Populations, Broken Promises & Environmental Justice

by Richard Frank

[Cross-posted from Legal Planet]

Pending Washington v. U.S. Supreme Court Decision Offers Hope & Vindication for Tribes, Coastal Fisheries

Truth be told, the U.S. Supreme Court’s 2017-18 Term has been an unsually quiet one for environmental and natural resources law.  Until now.

This week the Supreme Court heard oral arguments in a last-minute addition to the Court’s current docket.  Washington v. United States, No. 17-269, a case the justices only accepted for review in January, looms as the most consequential environmental Supreme Court decision of 2018.  It’s also a fascinating mix of Western American history, Native American law and policy, fisheries protection and environmental justice.

The Washington case has its historical and legal roots in a 164-year old treaty in which the federal government granted Native American tribes in Western Washington permanent fishing rights.  The 1854-55 “Stevens Treaties” (named for the Governor of the then-Washington Territory and Superintendent of Indian Affairs who negotiated the pacts with the tribes on behalf of the federal government) guaranteed the tribes “the right of taking fish, at all usual and accustomed grounds and stations…in common with all citizens of the Territory” in exchange for the tribes’ relinquishment of their claims to 64 million acres of land in Washington in favor of relocation to tribal reservations.

The Washington tribes’ principal concern–both in the mid-nineteenth century and today–has been preserving their access to regional salmon fisheries that have played such a vital role as a tribal food source, means of commercial exchange and for cultural and religious purposes.  As was the case with most nineteenth century government-tribal treaties, the Stevens Treaties turned out to be a bad deal for the Washington tribes.  The fishing rights they’d negotiated were quickly trampled, both by white settlers who relocated in the region and often blocked Native American fishers’ access to the waters of northwest Washington, and by white commercial fishermen who by the end of the 19th century were catching enormous quantities of salmon in the region, leaving precious little fish for tribal members using their more traditional fishing methods and gear.

After Washington was admitted to the Union in 1889, state officials overtly and repeatedly acted to frustrate the tribes’ exercise of their on- and off-reservation fishing rights granted under the Stevens Treaties.  This state of affairs prompted numerous political and legal conflicts in the late 19th and early 20th centuries, including two cases ultimately decided by the Supreme Court–both interpreting the Stevens Treaties in the tribes’ favor.

Fast forward to the late 20th century: the United States, both on its own behalf and as trustee for the Pacific Northwest tribes, sued Washington State in 1970 to address the state-federal/tribal political conflicts and enforce the Stevens Treaties’ fishing clause.  By that time, however, the single greatest threat to tribal fishing rights had become modern technology–specifically, the extensive system of road culverts that the state and its political subdivisions had built to channel rivers and streams underneath the state’s road and highway system.  It’s essentially undisputed that Washington’s road culvert system substantially impedes the migration of salmon both upstream and downstream.  That, in turn, has led to the substantial diminution of salmon populations in western Washington, to the detriment of Native American and white fishers alike.  (It’s also undisputed that technology currently exists by which state and local road builders can avoid this adverse environmental impact by designing road culverts that allow unobstructed fish passage.)

In an earlier phase of this longstanding litigation, a federal district court held–and the Supreme Court ultimately confirmed–that under the Stevens Treaties the tribes have the right to up to 50% of the harvestable fish in the affected region in western Washington.

The latest chapter in this protracted legal saga began in 2001, when the tribes and federal government asked the district court “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat so that adult fish production is reduced.”  Washington State’s legal response to this claim was straightforward: “there is no treaty-based right or duty of fish habitat protection” as asserted by the federal government and tribes.

The district court ruled in favor of the tribes and U.S., concluding that the fishing clause of the Stevens Treaties imposes a duty on Washington State to refrain from building or operating culverts under state roads that hinder fish passage and thereby substantially diminish the number of fish that would otherwise be available for tribal harvest.  The district judge thereafter held a trial to determine an appropriate remedy, eventually issuing a detailed injunction requiring state officials to inventory all state-owned barrier culverts; take immediate steps to retrofit some of the most damaging culverts; and mandating that the remainder be retrofitted at the end of their useful lives.

The Ninth Circuit Court of Appeals affirmed in a lengthy, unanimous opinion authored by Judge William Fletcher.  The Court of Appeals concluded that by building and maintaining a system of barrier culverts, “Washington has violated, and is continuing to violate, its obligation to the Tribes under the Treaties.”  Rejecting the state’s argument that the government’s treaty obligations do not extend to fisheries habitat protection, Judge Fletcher concluded:

"The Indians did no understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs.  Governor Stevens did not make, and the Indians did not understand him to make, such a cynical and disingenuous argument.”

In its successful petition for certiorari, Washington State argues that its obligations under the Treaties do not extend to providing fish-friendly culverts and road projects; that the federal government is equitably estopped from arguing to the contrary by virtue of having approved some of the offending culverts; and that the injunctive relief granted by the lower courts offends federalism principles and imposes an undue financial burden on the state.

The respective legal arguments advanced in the Washington case have a decidedly through-the-looking-glass quality to them: on the one hand, Washington–normally a progressive and environmentally-conscious state–is taking a quite conservative legal and political position usually embraced by the reddest of red states.  Conversely, the Trump Administration and Justice Department have maintained the same aggressive advocacy in favor of the tribes’ fishing rights and fisheries protection that previous administrations have advanced in the Washington litigation.  (The latter comes as a pleasant and most welcome surprise.)

One other interesting jurisprudential footnote to the case: Justice Anthony Kennedy announced he would recuse himself from the Court’s deliberations in the Washington case after he belatedly discovered that in 1985 he’d participated in an earlier phase of the same litigation while serving as a judge on the Ninth Circuit Court of Appeals.  (Kennedy’s recusal would be more consequential if Washington were a “normal” Supreme Court case in which his vote would likely be decisive; however, the justices’ votes in Native American law cases generally don’t track their normal progressive/conservative voting patterns.)

Early press reports indicate that the Supreme Court’s April 18th arguments did not go particularly well for Washington State.  That’s both unsurprising and a very good thing.  The federal government and the tribes have the better of the legal argument in Washington.  The lower federal courts were quite right to reject Washington State’s argument that its construction of environmentally-damaging infrastructure, responsible for devastating fisheries on which the tribal nations depend, is somehow consistent with its longstanding obligations under the Stevens Treaties.  As Ninth Circuit Judge Fletcher aptly noted, that’s a cynical and disingenuous argument indeed, and one that the Supreme Court should reject.

Ultimately, Washington v. United States is a case about environmental justice, and the obligation of government to live up to both the letter and spirit of its fiduciary duty to Native American tribes under longstanding treaties.  For centuries, government has failed to do so.  Hopefully, the Supreme Court’s decision in Washington–due by the end of June–will follow a different and more just legal path.

February 8, 2018

Water Law Students Visit the California Supreme Court

By Professor of Environmental Practice Rick Frank

On Tuesday, February 6th, I led my Spring 2018 Water Law students on a visit to the California Supreme Court to attend oral arguments in a major water law case pending before the justices. The Supreme Court session began with a warm welcome to our King Hall delegation from Chief Justice of California Tani Cantil-Sakauye, herself a proud King Hall alum. We then observed a lively hour of oral arguments, in a case in which the California building industry is challenging the State Water Resources Control Board's fee system adopted to finance the Board's statewide water pollution control program. The students observed the justices peppering the arguing attorneys with questions, and those attorneys demonstrating dramatically different styles of oral argument. This type of "experiential learning" outside the classroom is a most valuable part of my student's King Hall legal education.  And--also importantly--they had a thoroughly good time attending the California Supreme Court arguments.

 

 

January 8, 2018

The California Supreme Court’s Most Important Environmental Law Decisions of 2017

[Cross-posted from Legal Planet.]

By Richard Frank

As 2017 comes to a close, let's take a moment to assess the California Supreme Court's most significant environmental law decisions of the year.

There are a large number of decided cases to choose from: as has been true over the past decade, in 2017 the California Supreme Court devoted a substantial portion of its civil docket to cases of interest to environmental lawyers, organizations and the regulated community.  With that caveat, here's my list-an admittedly subjective one-of the Court's five most important environmental decisions of 2017:

5. Lynch v. California Coastal Commission.   This regulatory takings case arose after a coastal storm destroyed a seawall built and maintained by coastal landowners in San Diego County.  The landowners sought a permit from the California Coastal Commission to rebuild the seawall.  The Commission granted the permit, but limited its term to 20 years in order to give the  Commission a future opportunity to assess whether sea level rise, increased intensity of coastal storms and other projected impacts of climate change warrant a different regulatory strategy prospectively.  The landowners then rebuilt the seawall and simultaneously sued the Commission, claiming the fixed 20-year permit term triggered a compensable taking of their property rights.  The Supreme Court unanimously disagreed, concluding that the landowners had forfeited their right to bring their regulatory takings claim when they proceeded to rebuild the seawall.  As Justice Carol Corrigan succinctly put it in her decision on behalf of a unanimous Court: "Plaintiffs obtained all the benefits of their permit when they built the seawall.  They cannot now be heard to complain of its burdens."

(The Lynch decision would have been even more significant had Court proceeded to address the merits of the property owners' takings claim.  Many observers had hoped the justices would use the case as a vehicle to determine how much latitude California land use agencies have to address and respond to the looming natural resource, economic and regulatory challenges presented by climate change.  Alas, that was not to be.  Nevertheless, Lynch establishes a forceful precedent that regulatory takings plaintiffs cannot have it both ways.)

4.  City of San Buenaventura v. United Water Conservation District  One of the many reasons modern California environmental law is so fascinating is that it draws upon-and inevitably intersects with-so many other areas of public law.  City of San Buenaventura is a prominent example.  The issue was whether a local water district's imposition of a "groundwater pumping charge" on well operators to fund regional water conservation measures violates two voter-enacted state constitutional provisions that limit the authority of state and local governments to collect revenue through taxes, fees and other charges.  Specifically, the City of Ventura, which pumps large amounts of groundwater to deliver to its residential customers, claimed that the district's pumping charge: a) contravened Proposition 218, which requires a vote of the electorate before a local agency can impose a tax, assessment or fee on property "as an incident of property ownership"; and/or b) violated Proposition 26, which similarly requires a public vote before a local government can assess many-but not all-levies, charges and exactions.  The Supreme Court unanimously ruled that Proposition 218 was inapplicable to the district's groundwater pumping charge and that the charge likely did not violate the provisions of Proposition 26.  (The justices did remand the case to the Court of Appeal to determine whether the city's allocated share of the conservation fees by the district "bear a fair or reasonable relationship to the [city's] burdens on, or benefits received from" the defendant water district's conservation programs.)

The City of San Buenaventura decision is significant for two interrelated reasons: many of California's groundwater basins are severely overdrafted, and state water managers are only now belatedly attempting to adopt remedial measures like the conservation efforts that the contested groundwater pumping charge is intended to address.  Second, the landmark Sustainable Groundwater Management Act (SGMA) passed by the California Legislature in 2014 requires local governments to organize into Groundwater Sustainability Agencies which are empowered to assess fees on groundwater necessary to fund the GSAs development and enforcement of Groundwater Sustainability Plans over the next few years.  City of San Buenaventura finds that these groundwater conservation efforts, properly implemented, do not require a popular vote before the GSAs and water districts generally assess the fees on groundwater users and pumpers needed to fund those conservation efforts.  That's a big deal.

3. California Cannabis Coalition v. City of Upland.  Like the City of San Buenaventura case, California Cannabis Coalition is not your typical environmental law case.  While it does arise in a burgeoning corner of California land use law-whether and to what extent local governments can ban marijuana dispensaries from their jurisdictions-the case involves the intersection of the aforementioned Proposition 218 (limiting the ability of local governments to increase taxes) and another key state constitutional provision: the scope of California voters' initiative power.  Specifically, the City of Upland had in effect a land use ordinance banning medical marijuana dispensaries.  Marijuana advocates proposed a local voter initiative to repeal that ban and require that dispensary owners pay the city an annual "licensing and inspection fee" of $75,000.  City officials refused to submit the initiative to the voters in a special election, concluding that Proposition 218 required that a vote on the initiative await take place in a subsequent general election.  The initiative proponents sued, claiming that the constitutional right of voters to utilize the initiative process trumps compliance with Proposition 218.  The Supreme Court agreed, ruling that Proposition 218 does not restrict the ability of voters to impose taxes via the initiative process.

As Legal Planet colleague Ethan Elkind noted in an earlier post analyzing California Cannabis Coalition, the decision has important consequences for a wide array of future land use, environmental and transportation projects.  He aptly observes:

"The potential result is that any citizen, nonprofit or business group that wants to place a special tax measure or fee on the ballot for something like a new school or transit line may only need a simple majority voter approval, provided they can get enough signatures for their measure.  And unless barred by some other law, I gather there's nothing stopping agency representatives or elected leaders in their individual capacities from sponsoring these campaigns in ways that essentially amount to the city, county, or agency sponsoring the measure themselves...

At a time when California is struggling to reduce emissions from the transportation sector due to growing commutes from the lack of housing and transit near jobs, this decision could be significant for finally allowing locals the flexibility they need to fund these investments. Under California Cannabis Coalition vs. City of Upland, local government finance for a host of environmentally significant projects, from parks to transit to infill housing infrastructure, may have just gotten easier to pass."

2. Friends of the Eel River v. North Coast Railroad Authority.  Continuing a pattern over the past decade, the California Supreme Court's most significant environmental law decisions in 2017 concerned the California Environmental Quality Act (CEQA).  Friends of the Eel River raised a CEQA issue not previously addressed by the justices: whether, and in what circumstances, CEQA is preempted by federal law.  The specific issue in Friends of the Eel River was whether CEQA's application to publicly-owned railroad projects in California is trumped by the federal Interstate Commerce Commission Termination Act (ICCTA).  In a 6-1 decision authored by Chief Justice Tani Cantil-Sakauye, the Court held that while CEQA's application to privately-owned railroad projects in California is preempted by ICCTA, CEQA continues to apply to at least some publicly-owned and operated railroad projects.

As I commented in an earlier post, the majority opinion in Friends of the Eel River is less than a model of clarity.  But it is unquestionably an important decision-especially with respect to CEQA's application to another, larger and more controversial public railroad project: California's High Speed Rail initiative.  And the question of federal preemption of CEQA's application to public railway projects is far from settled: the U.S. Court of Appeals has pending before it another CEQA preemption case involving...California's High Speed Rail project.  And federal regulators responsible for implementing the ICCTA have opined administratively that this federal law does indeed preempt CEQA.

1. Cleveland National Forest Foundation v. San Diego Association of Governments.  In my opinion, 2017's most consequential environmental law decision was another complex CEQA case.  Cleveland National Forest Foundation involved the adequacy of an environmental impact report prepared by the San Diego Association of Governments (SanDAG) in conjunction with that entity's adoption of a regional transportation plan for the San Diego metropolitan area.  That plan, in turn, was mandated under SB 375, landmark climate change legislation requiring unprecedented linkage between California transportation and land use planning efforts, with the overarching goal of reducing the state's aggregate greenhouse gas emissions.  (One of the many reasons this decision is so important is that it's the Supreme Court's first opportunity to address SB 375.)

As Legal Planet colleague Sean Hecht recounts in an earlier and more detailed post on the Cleveland National Forest Foundation decision,  the justices issued something of a split opinion.  On the one hand, the Court's 6-1 decision finds SanDAG's EIR to be legally adequate.  At the same time, the justices spend considerably time and effort discussing the overarching need of CEQA documents to make a thorough and good faith effort to address the impacts of climate change.  And the decision also makes clear that climate change analysis under CEQA is an evolving science-the depth and sophistication of climate change analysis required in a current CEQA document likely exceeds that of the 2011 SanDAG EIR.  Inasmuch as the intersection of climate change impacts and CEQA will be an increasingly crucial aspect of CEQA analysis prospectively, Cleveland National Forest Foundation is required reading for CEQA attorneys, planners and scholars.

(One postscript: in a sense, the most important California Supreme Court case of 2017 is the one the justices decided not to decide.  California Chamber of Commerce v. California Air Resources Board was a challenge to the legality of the Board's cap-and-trade program, a key element of CARB's multifaceted strategy to reduce California's greenhouse gas emissions.  Early in 2017, the California Court of Appeal in Sacramento rejected the regulated community's state constitutional challenge to CARB's cap-and-trade program, ruling that CARB's auctioning of GHG emission allocations is not a "tax" within the meaning of California's Proposition 13, and therefore not subject to the measure's two-thirds vote requirement by the California Legislature.  Industry petitioned the Supreme Court for review of that decision, but the justices denied review this past summer.  Had the justices agreed to hear the case, it would have kept CARB's cap-and-trade program under a cloud of doubt and political controversy.  But with the Court of Appeal's now-final decision upholding the constitutionality of the cap-and-trade program, that uncertainty was eliminated and a political consensus quickly emerged, allowing the state Legislature to reaffirm the cap-and-trade program and extend it through 2030 via a statute passed earlier this year.)

2017 demonstrates that the California Supreme Court remains the nation's most influential state court when it comes to environmental law and policy.

 

 

April 27, 2017

UC Davis School of Law Launches New Water Justice Clinic

(Cross-posted from Legal Planet.)

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

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

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

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

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

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

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

April 13, 2017

A Field Trip to Bodega Bay

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

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

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

November 4, 2016

California Environmental Law & Policy Issues Class Heads to Incline Village

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

November 16, 2015

Environmental Law Conference 2015 at Yosemite

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


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

 


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

 

 

October 9, 2015

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

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

Here is text of my testimony on October 8:

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

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

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

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

General Comments & Overview

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

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

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

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

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

H.R. 2898

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

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

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

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

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

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

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

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

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

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

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

S. 1894

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

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

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

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

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

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

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

Conclusion

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

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

 


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

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