July 11, 2022

Deconstructing the Supreme Court's Climate Change

[Cross-posted from the Daily Journal]

By Richard M. Frank

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 14, 2022

Considerations for Developing An Environmental Water Right in California

[Cross-posted from California WaterBlog]

By Karrigan Börk, Andrew L. Rypel, Sarah Yarnell, Ann Willis, Peter B. Moyle, Josué Medellín-Azuara, Jay Lund, and Robert Lusardi

This week, news emerged of a State Senate plan that would spend upwards of $1.5B to purchase senior water rights from California growers. Under California’s first-in-time, first-in-right water allocation system, senior water rights are filled first, before more junior right holders get their water. The proposal is ostensibly promising. Because of widespread diversions, the aquatic biodiversity of California has been effectively exposed to chronic drought every year, and additional flows may help native species. If purchases can quickly add additional water to rivers in the right places and at the right times, they could benefit ecosystems and endangered species, like Chinook salmon and delta smelt (Moyle et al. 2019, Obester et al. 2020). But it could also easily become a payoff for wealthy water holders with marginal benefit for ecosystems, species, and people. The potential for abuse is particularly troubling when the State is using public funds to buy water, which technically belongs to the people of the state and which the State can already regulate to achieve the same aims. As the old saying goes, the devil is in the details. 

This blog highlights some important considerations for decision makers on making effective environmental water right purchases. Below are several questions and themes for a successful water purchasing program.

Does purchasing water rights actually result in more water for ecosystems?

Water rights in California are complicated, and there are many ways a water right purchase could not add appreciable water for ecosystems. 

First, many water rights exist only on paper. Some right holders only use a portion of their water right in most years and can only use the full right occasionally, e.g., in very wet years. The state of the data and reporting system in California, especially for senior water rights, makes it challenging to know how much water senior right holders are entitled to and how much water they actually use. And we’re most interested in their consumptive use – the share of water use that becomes available and legal to sell under California law – a quantity that’s even harder to pin down. Established legal and regulatory process exist to dedicate real water rights to the environment. California Water Code Section 1707 provides a mechanism to transfer water rights to instream use, and it, combined with other water code sections on water transfers, does a fair job of making sure that what’s being transferred is real water that will actually increase flows and be protected from other users. Practitioners have already developed practical guidelines for successfully completing the 1707 process. The State must take care to purchase real wet water rights that will result in enforceable instream flows. 

Second, water transferred to instream use needs to stay instream. On many rivers, the full flow of the river is already spoken for through existing rights, often many times over; California has allocated up to 1000% of natural surface water flow, with most of these water rights issued in the Sacramento and San Joaquin rivers. If purchased rights are simply retired or not otherwise protected for ecosystem purposes, then holders of other existing water rights can (and often will) simply take the water. 

Third, even with an effective mechanism for selecting real water rights and protecting them instream, improvements to monitoring and enforcement are essential to ensure true increases in instream flows. Many diversions are only roughly monitored, such that neither the water user nor the State knows exactly how much water is being used. Many river stretches lack flow gages, so it is difficult to quantify how much water remains instream (though SB 19 is attempting to address the limited network of stream gages in California). And the Water Board lacks adequate resources to enforce existing limits on water rights. The State needs open and reproducible data on diversions and flows, along with a meaningful enforcement threat to ensure any water set aside for environmental benefit remains in the ecosystem.

Finally, these water rights should be “new” water. The Water Board, through its Bay Delta Water Quality Control Plan, is already reducing water rights to protect public trust uses and water quality in the Bay Delta watershed. Water users are negotiating over Voluntary Agreements that could be a part of that Plan. In addition, many growers will need to fallow some fields to meet the mandates of SGMA. Many state and federal laws already circumscribe many water rights to protect instream water uses. Purchases with public funds should be focused on water rights that right holders would otherwise use, so the funds don’t go to pay for water that would have remained instream anyway.

What price should California pay?

The Water Board already has the power to reduce water rights to protect the public trust or to ensure water is used reasonably so as not to destroy public resources, and it has previously exercised that power. They consistently win the resulting lawsuits. California could legally and constitutionally acquire much of this water through other mechanisms, without paying for it. So what exactly is the State paying for here? 

In a nutshell, the state would pay for acquiring water quickly, with less political resistance and bureaucratic wrangling, and with less political ill-will and fewer messy and protracted lawsuits. That might make sense; we’re in a climate crisis, and salmon and many of California’s imperiled species don’t have time to waste. But it also means the State should not be paying full price. Water use reductions to support instream flows could occur through other government actions, without a State buyback. A water right that is sometimes curtailed by the state during drought due to endangered species or public trust concerns simply isn’t worth as much as a water right that doesn’t face such regulation. The question is whether water right holders get paid something now for their right or lose some of this water right with no payment after a protracted and expensive fight into a rapidly changing future. Prolonged litigation isn’t as advantageous to current water rights holders as they might seem. Longer and deeper curtailments are possible given the trajectory of California’s climate, meaning the right could become worth even less in the future.

The best approach to pricing might be something like the reverse auctions that The Nature Conservancy is already using to generate migratory bird habitat. Under this approach, water right holders bid to sell their water to the state, and the lowest bids would be more favored, provided that they are real wet rights, as discussed above. This should be coupled with continued pressure from the Water Board to exercise their existing powers to reduce water available to right holders, as they did in the last drought, to generate conditions that would encourage water right holders to sell. And, as we’ll discuss in further detail, another complexity is that it’s not just the cheapest water the state should buy, but the cheapest real water in the right place at the right time for the ecosystem (see point 3 below). Paying full price for water rights could amount to a giveaway to wealthy water right holders, but the reverse auction model can avoid this pitfall.

Paying public money for a publicly-owned and regulated resource will strike some advocates as morally wrong. They might argue it sets a dangerous precedent of buying out those who oppose regulation or treating water rights as a more concrete form of property than they actually are. Legislators should be aware of this philosophical opposition and must carefully craft the purchase program to ensure it provides enough water and ecological benefits to merit the actual and political costs. Because California water already belongs to all Californians, and water rights are subject to continuing State supervision, the State should make sure the funds they dedicate go as far as possible.

What water, when, and where?

What are the precise goals of these purchases? The plan may become the beginnings of an ‘environmental water right’. This would be a positive step. 83% of California’s endemic fish species are declining (Moyle et al. 2011). Furthermore, outmigration survival of juvenile Chinook salmon is strongly linked in a threshold manner to river flows (Michel et al. 2021). Thus additional flows could benefit endangered species, especially if deployed strategically. However, if additional flows are simply gobbled up by other water users downriver or deployed in the wrong places and times, the environmental benefit to people and ecosystems could be nil. Water budget and accounting mechanisms are needed to ensure water is getting where and when it is most needed.

“When” matters.

The ecological value of water changes over time; both between seasons and across years. For example, additional flows during drought may yield more ecological return on investment than increased flows in wet years. As one heuristic, average annual runoff in California is 71M acre-feet. Thus a total of 200,000 acre-feet of additional water (the figure provided in the linked article above) is only 0.3% of the average water budget. However, runoff in drought years is much lower. Runoff during the 1977 drought year was only 15M acre-feet; so 200,000 acre-feet is 1.3% of the water budget in such dry years. An accounting or water budget that details when additional flows would be available is needed to accurately track the availability of surplus water.

The value of water for economic uses also changes over time. Opportunity costs of water in the irrigation season of dry years are particularly high. Thus creating a buffer in wet years might be more cost effective than buying out agricultural water use during dry years. A buyback program that considers a baseline amount plus dry-year option may reduce uncertainties for both farming and ecosystem needs.

“Where” matters.

There are better and worse places for additional water. Adding high quality water is valuable, so water rights in spring-fed streams and groundwater-dominated rivers have high potential for adding higher value than simply additional flow volume due to their unique water quality. Spring-fed and groundwater-dominated streams are more resilient to climate change than strictly surface runoff-dominated streams, and, as a result, they support robust ecosystems

Adding significant amounts of water to tributaries can make a significant difference, in part because less water is needed to enhance these habitats. Similarly, adding water to coastal rivers, which may be less complicated and easier to monitor, could result in significant gains.

On maintem rivers, giving juvenile salmon and other native fishes better access to productive riparian and floodplain areas could support aquatic biota. Data from a host of studies demonstrate that salmon grow better when exposed to floodplain habitats (e.g., Katz et al. 2017, Holmes et al. 2021), and new studies are testing potential survival benefits for floodplain-reared salmon. But this may not require purchases of water rights; permanent easement arrangements, long-term conservation easements and/or NRCS programs could provide similar benefits at less cost and with more impact than just adding water to maintem rivers. Strategic tributary investments are likely to often provide greater and more sustainable ecosystem value compared to large mainstem purchases, where many other users, especially in the Central Valley, bid up water prices and the marginal proportions of flow improvements are smaller.

Equity and Social Justice.

In 2021, the California Water Board released Resolution No. 2021-0050, titled “Condemning Racism, Xenophobia, Bigotry, and Racial Injustice and Strengthening Commitement to Racial Equity, Diversity, Inclusion, Access, and Anti-racism.” This remarkable document acknowledged that the “Water Boards’ programs were established over a structural framework that perpetuated inequities based on race,” and it provides extensive background on the systematic exclusion of many groups from the water right acquisition process. The most senior water rights in California, those targeted by this purchase program, were acquired during a period when racism was the norm, when women often lacked independent legal identity, and when Asian people were unable to become citizens, even though citizenship was open to most other races. Indigenous peoples were still subject to state-sponsored genocide and systematically disenfranchised of their land and water rights. As a result, most minorities and many women were excluded from acquiring water rights or land with appurtenant water rights. Most senior water rights were originally claimed by white men, and that disparity has continued. Buying out water rights now, as opposed to rationally regulating them, risks perpetuating that tradition. Because of the State’s continuing ownership and regulatory interest in water rights, the State still has opportunity to redress past injustices, as the Water Board resolution acknowledges. Early drafts of the legislation for the purchase program appear to recognize this history and attempt to mitigate some of the lasting harm through funding for increased access to drinking water for disadvantaged communities. Without intentional engagement to address these past injustices, the broader purchase program might result in better public control of water, but at the cost of extending inequities. 


The State Senate proposal offers the promise of real change in California water. It might help to move past a decades-long stalemate, protect important tributary and coastal rivers, and ensure the survival of imperiled species. It offers quick action that could create long-sought environmental water rights. But the details matter. This proposal could just as easily result in a very minor increase in mainstem flows that does little to benefit ecosystems, or even pay for water rights that aren’t worth the paper they’re written on. A decade from now, this might be seen as a turning point or just another expensive water scheme. 

At some point, transdisciplinary water and ecosystem experts need to be brought into the room. Scientists can assist policy makers to identify the locations, times, and dynamics of flows that can have the most environmental benefit (e.g., California Environmental Flow Framework). Further, transparent cost benefit analysis, water balance modeling, or ecological optimization provide important insight on when and how (e.g., functional flows) to best use additional water for the environment.

Although engaging with experts can be challenging and can occasionally stymie progress, scientists also deliver data-driven frameworks for optimizing investments and learning the most from an experiment. This knowledge works to ensure that decisions are ultimately based on sound science while also looking at economic and distributional effects in water reallocations. Management plans/processes that are transparent, reproducible and science-based often help. Indeed, some states have adopted democratic boards with a science-based mission to oversee management of natural resources within the context of the public trust. A similar model may be useful here.

Strong legal and scientific oversight will be essential to maximize the ecological benefits of purchases. We hope these suggestions provide encouragement and guidance for decision makers as they further consider water right purchases for the environment.

Karrigan Börk is an Acting Professor of Law at the UC Davis School of Law and an Associate Director at the Center for Watershed Sciences. Andrew L. Rypel is a professor of Wildlife, Fish & Conservation Biology and Co-Director of the Center for Watershed Sciences at the University of California, Davis. Sarah Yarnell is a Research Hydrologist at the Center for Watershed Sciences. Ann Willis is a Research Engineer at the Center for Watershed Sciences. Peter B. Moyle is a Distinguished Professor Emeritus at the University of California, Davis and is Associate Director of the Center for Watershed Sciences. Josué Medellín-Azuara is an Associate Professor at the University of California, Merced. Robert Lusardi is an Assistant Adjunct Professor and Research Ecologist in the Department of Wildlife, Fish & Conservation Biology and the Center for Watershed Sciences at UC Davis. 


Further Reading

Bellido-Leiva, F.J., Lusardi, R.A. and Lund, J.R., 2021. Modeling the effect of habitat availability and quality on endangered winter-run Chinook salmon (Oncorhynchus tshawytscha) production in the Sacramento Valley. Ecological Modelling, 447, p.109511.

Börk, K., and A.L. Rypel. 2020. Improving infrastructure for wildlife. Natural Resources & Environment.

Börk, K., A.L. Rypel, and P. Moyle. 2020. New science or just spin: science charade in the Delta,

Grantham, T.E., and Viers, J.H. (2014). 100 years of California’s water rights system: patterns, trends and uncertainty. Environmental Research Letters 9(8), 084012.

Grantham, T.E. and Viers, J.H. (2014). California water rights: You can’t manage what you don’t measure. California Waterblog.

Holmes, E.J., P. Saffarinia, A.L. Rypel, M.N. Bell-Tilcock, J.V. Katz, and C.A. Jeffres. 2021. Reconciling fish and farms: Methods for managing California rice fields as salmon habitat. PLoS ONE 16(2): e0237686.

Hollinshead, S.P. and J.R. Lund, “Optimization of Environmental Water Account Purchases with Uncertainty,” Water Resources Research, Vol. 42, No. 8, W08403, August, 2006.

Katz, J.V.E., C. Jeffres, J.L. Conrad, T.R. Sommer, J. Martinez, S. Brumbaugh, N. Corline, and P.B. Moyle. 2017. Floodplain farm fields provide novel rearing habitat for Chinook salmon. PLoS ONE 12(6): e0177409.

Lusardi, R.A., Nichols, A.L., Willis, A.D., Jeffres, C.A., Kiers, A.H., Van Nieuwenhuyse, E.E., et al. (2021). Not All Rivers Are Created Equal: The Importance of Spring-Fed Rivers under a Changing Climate. Water 13(12), 1652.

Medellín-Azuara, J., Paw U, K.T., Jin, Y. Jankowski, J., Bell, A.M., Kent, E., Clay, J., Wong, A., Alexander, N., Santos, N., Badillo, J., Hart, Q., Leinfelder-Miles, M., Merz, J., Lund, J.R., Anderson, A., Anderson, M., Chen, Y., Edgar, D., Eching, S., Freiberg, S., Gong, R., Guzmán, A., Howes, D., Johnson, L., Kadir, T., Lambert, J.J., Liang, L., Little, C., Melton, F., Metz, M., Morandé, J.A., Orang, M., Pyles, R.D., Post, K., Rosevelt, C., Sarreshteh, S., Snyder, R.L., Trezza, R., Temegsen, B., Viers, J.H. (2018). A Comparative Study for Estimating Crop Evapotranspiration in the Sacramento-San Joaquin Delta. Center for Watershed Sciences, University of California Davis.

Michel, C.J., J.J. Notch, F. Cordoleani, A.J. Ammann, and E.M. Danner. 2021. Nonlinear survival of imperiled fish informs managed flows in a highly modified river. Ecosphere 12: e03498.

Middleton Manning, BR. 2018. Upstream: Trust Lands and Power on the Feather River. Tucson: University of Arizona Press. 256 pp.

Moyle, P.B., J.V.E. Katz, and R.M. Quiñones. 2011. Rapid decline of California’s native inland fishes: a status assessment. Biological Conservation 144: 2414-2423.

Moyle, P., K. Börk, J. Durand, T. Hung, A.L. Rypel. 2019. Futures for Delta Smelt,

Moyle, P.B. 2021. Drought makes conditions worse for California’s declining native fishes.

Rypel, A.L. 2022. Nature has solutions…What are they? And why do they matter?

Rypel, A.L., D.J. Alcott, P. Buttner, A. Wampler, J. Colby, P. Saffarinia. N. Fangue, and C.A. Jeffres. 2022. Rice and salmon, what a match!

Rypel, A.L., P.B. Moyle, and J. Lund. 2021. A swiss cheese model for fish conservation in California.

Willis, A.D., Peek, R.A., and Rypel, A.L. (2021). Classifying California’s stream thermal regimes for cold-water conservation. PLOS ONE 16(8), e0256286. doi: 10.1371/journal.pone.0256286.

Yarnell, S.M., Petts, G.E., Schmidt, J.C., Whipple, A.A., Beller, E.E., Dahm, C.N., Goodwin, P. and Viers, J.H., 2015. Functional flows in modified riverscapes: hydrographs, habitats and opportunities. BioScience, 65(10), pp.963-972.

January 10, 2022

Protect the Public's Interest with Kern River Water Allocation Decision

[Cross-posted from CalMatters]

By Karrigan Bork

There’s a water fight brewing on the Kern River. The State Water Resources Control Board’s handling of the conflict will be telling for the future of California’s streams and rivers. 

If the water board takes seriously its duty to protect the public interest, this conflict could lead to better water management statewide.

The Kern River starts on the slopes of Mount Whitney and (sometimes) flows through Bakersfield. It once supported a vast ecosystem of wetlands and lakes, teeming with wildlife and offering an escape from the heat of the San Joaquin Valley. As with several California rivers, every drop of water in the Kern River has been diverted since the mid-to-late 1800s, destroying the wetlands and draining the river.

California laws are supposed to protect rivers from this fate, and the California Supreme Court has ruled that all water allocations must consider the public trust doctrine, which protects the public’s interest in healthy rivers and streams. However, Kern River water rights are so old that they have never been assessed against modern environmental laws. 

Under the state Supreme Court precedent, the water board has both the power and the duty to adjust antiquated water rights to protect public trust interests, but it seldom does. Fortunately, the water board now has an opportunity to reassess these rights.

A 2007 California appellate court decision struck down some of the oldest water rights on the Kern because the right-holder failed to use the water. This unusual ruling means that new rights to Kern River water might be available for the first time in more than a century. Nearby cities and area water districts pounced, filing six applications for any unclaimed water. Public-interest organizations suggest the water should be used to restore portions of the Kern.

Before the water board can allocate the water, it must determine whether the forfeiture actually freed up any water. The water board’s Administrative Hearings Office is currently trying to determine how much water is already claimed under existing rights and whether there is any water left for the new applicants. Making this decision requires evaluating the historic Kern River water rights. 

The water board should take this opportunity to consider whether the existing rights adequately protect the public trust. If not, as the state Supreme Court has indicated, those rights should be adjusted to comply with modern law. But the water board seems poised to ignore the public trust in this phase of the proceedings. Instead, it plans to defer consideration of public trust until after it decides whether existing right holders can soak up all the available water. 

This approach assumes the validity of the old water rights and puts the public’s interests last, behind all the existing right holders. If the public only gets the leftovers, there will never be enough water for a healthy environment. That falls short of the Supreme Court’s mandate to the water board – public trust protections extend to all waters, not just whatever is left after everyone else takes their cut.

Under California law, the water board must determine whether the historic water rights adequately protect public interests. Over the past century and a half, California has become a leader in environmental protection, but our leadership has lagged when public interests and water rights clash. 

This conflict offers the water board an opportunity to set a vital precedent: that whenever the board considers claims under existing water rights, it will assess whether those rights are still valid in light of the board’s modern responsibilities to the public. 

Setting this precedent would put the water board on a path toward improved water management across California by adjusting historic rights to reflect modern priorities. The board has the authority and the responsibility to make the right decision. We’ve come a long way since the 1800s, and it is high time for these old water rights to catch up.

January 10, 2022

9th Circuit's Top 10 Environmental Law Decisions of 2021

[Cross-posted from Daily Journal]

By Richard M. Frank

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

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

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

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

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

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

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

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

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

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

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

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

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

December 6, 2021

How an Outdated Environmental Law is Sabotaging California's New Housing Rules

[Cross-posted from the San Francisco Chronicle]

By Christopher S. Elmendorf and Tim Duncheon

In October, outrage erupted when San Francisco’s Board of Supervisors voted down a proposal to build nearly 500 new homes — many affordable — on a downtown site at 469 Stevenson St. now being used for valet parking.

Of course, these same supervisors reject housing developments all the time. And yet this denial was especially brazen.

It came short on the heels of a major Court of Appeal decision upholding the state’s powerful Housing Accountability Act, which requires cities to approve housing projects if a reasonable person could deem the project compliant with applicable standards. Yet the supervisors who voted “no” didn’t even try to argue that the project was noncompliant.

Instead, they attempted to evade the HAA by using a different law, the California Environmental Quality Act.

Technically, the board voted to reverse the city planning commission’s certification of the project’s environmental impact report—a report that took over two years to complete and certify in the first place. Board members demanded additional environmental studies, even as they openly admitted that their objections to the project — too big, not enough affordable units, risk of gentrification — had nothing to do with the environment. Oakland and Sonoma have also used similar CEQA maneuvers to hold up housing projects, too, albeit to much less fanfare.

The immediate question this raises is whether cities will be allowed to keep using CEQA to launder denials of housing that state law protects. Can bad-faith cities keep getting away with demanding round after round of ever more elaborate environmental studies, until developers cry uncle and walk away?

But there’s also a deeper question. Why is a housing project that a city can’t legally deny — because it is protected by state law — required to undergo an exhaustive environmental study in the first place?

CEQA requires local governments to carefully consider environmental concerns whenever they make discretionary decisions. For example, it requires cities to do environmental studies when they change their zoning ordinances.

San Francisco’s city charter subjects all development projects to “discretionary review,” making them all potentially subject to CEQA, even if they conform to zoning. But that doesn’t mean every single project in San Francisco is put through the wringer of a multiyear environmental impact report. A report is required only if the development may have a “significant impact” on the environment.

But significant relative to what?

The developer of the Stevenson Street project had to complete an environmental impact report because San Francisco’s Planning Department concluded (after its own yearlong, 342-page study) that the building might have a significant local environmental impact in the form of shadows, wind, or (during construction) noise and air pollution, relative to leaving the site as a parking lot.

This is nuts.

After all, this was a proposal to put dense housing a block from a BART station, in a designated “priority development area” under the region’s climate plan. Few projects could be more environmentally friendly.

Also, critically, California law doesn’t allow the city to retain the site as a parking lot once a developer applies to build housing there.

There was no reason to require an environmental impact report for the Stevenson Street project unless it would have a significant larger impact than any other project of the size that state law authorizes and encourages developers to build on the site. If the impact of the 500-home building the developer proposed would be about the same as the impact of any other 500-home building on the site, then requiring the developer to prepare an environmental impact report was a colossal waste of time (two years and counting) and money. In the midst of a worsening housing crisis.

It doesn’t have to be like this.

Under the federal statute on which CEQA was modeled, environmental review is limited to effects that are proximately caused by a government agency’s discretionary decisions. Because California law prohibits San Francisco from downsizing the Stevenson Street project, the project’s size isn’t caused by the city’s permitting discretion. And so the Stevenson Street project wouldn’t require environmental analysis.

Or consider New York, where if a developer proposes a 10-story development on a site where the zoning currently allows a five-story building, the effect of the larger project is analyzed relative to a smaller one the zoning allows.

The bottom line is that there’s an urgent need for fresh thinking about how to fit CEQA and the HAA together in a sensible way. Ideally, California’s Legislature would do it, with clarifying amendments to one or both laws. But achieving meaningful CEQA reform through the Legislature has proven to be a Sisyphean task due to the powerful interest groups — first and foremost the building trades unions — that have mastered the art of using CEQA litigation to hold developers hostage until the unions secure a side-deal, thereby making housing harder to build — and more expensive when it is built.

Action on this issue will require a full-court press by other actors: the courts, the Attorney General, and most importantly Gov. Newsom, who is riding high after crushing the recall attempt.

The governor has tools at his disposal to get the job done. He oversees the Department of Housing and Community Development, which is tasked with enforcing the HAA and other state housing laws. He also appoints the directors of the Natural Resources Agency and the Office of Planning and Research, who in turn issue the official CEQA Guidelines, which spell out the nitty-gritty of environmental review.

The governor’s housing department has launched an investigation of the 469 Stevenson St. debacle. A few days before Thanksgiving, the department delivered a strongly worded letter to San Francisco. This letter suggested that bad faith demands for superfluous environmental studies may violate the HAA. This interpretation — which is plausible but not open-and-shut — would greatly curtail CEQA-laundered project denials. And it’s an interpretation that courts are more likely to accept now that the executive branch of state government endorses it.

The letter is great, but it’s just a start.

CEQA guidelines must be revisited, too. They don’t even mention the HAA. Worse, they arguably call for full environmental impact reports even when a city has limited discretion over a project.

Stevenson St. is a case in point.

This is no way to run the show in a world where, as the HAA puts it, the lack of abundant infill housing is “undermining [California’s] environmental and climate objectives” by causing “urban sprawl, excessive commuting, and air quality deterioration.”

The housing shortage gets worse with each passing month that is wasted on irrelevant environmental review.

One of Newsom’s first official acts after trouncing the recall was to sign a spate of new housing bills. Next in line for the governor’s signature should be an executive order directing a revision of the CEQA Guidelines in light of the HAA. There’s no time to waste.

Christopher S. Elmendorf is a professor of law at UC Davis. Tim Duncheon is a lawyer based in San Francisco. Portions of this commentary were published on the State and Local Government Law Blog.

October 6, 2021

Room for Nature

[Cross-posted from Environmental Law Prof Blog]

By Karrigan Bork

Professors Ruhl and Craig paint a vision of a 4ºC world marked by “discontinuous and often unpredictable transformation.” Nature, from climate to ecosystems to species, is hard to predict in the best of times. It’s a wild beast in a 4ºC world. This means that we will have to give up our efforts to tightly control nature and instead give her room. Room in a real, physical sense, like space for species to migrate and for seas to rise and for rivers to roam; and room in a metaphorical sense, by not harvesting and managing and controlling and consuming right up to the edge of destruction.

The only certain thing in this uncertain 4ºC future is change: The weather in many locations will be marked by increased variability, higher temperatures, more extreme precipitation events, and changes in total precipitation. Sea levels will rise. Storms will be more intense. In short, climate change will make many of our current climate expectations obsolete. Moreover, a 4ºC world does not just present a new set of stable conditions that society can assume will continue into the future; continuing unpredictable shifts in climate are a hallmark of a 4ºC world.

This is especially challenging because core aspects of our society, from infrastructure to farming to insurance to conservation, have been designed with the assumption of relatively predictable climate. Infrastructure, for example, is often tailored very narrowly to meet a predicted climate range, and flood insurance programs require levee protection designed to withstand a 100-year flood event in most areas. But in a 4ºC world, levees will face storms that exceed those design standards much more frequently than once every hundred years. We’ve often left ourselves a narrow margin of safety in all kinds of systems, from infrastructure to agriculture to environmental protection. This approach leaves little room for error, and the predictable climate that enabled this approach is ending. We’re moving into a climate that is predictably unpredictable. Our current world of just-in-time delivery, thin margins, efficiency, precise timing, and long supply chains is not built for the uncertainties of a 4ºC future. This problem extends to the ways we currently manage ecosystems, approaches that leave little room for nature itself.

Professor Dave Owen describes the prevailing ecosystem management ethos as “allow[ing] resource consumption right up to perceived brinks of illegality and . . . provid[ing[ just enough protection to avoid legal violations, but no more.” Managing at the brink of illegality is part of a broader problem of trying to manage natural systems within carefully delineated boundaries, under tight control. Of course, we actively manage ecosystems to protect particular species or provide particular ecosystem goods and services. But in many cases, as Professor Owen describes, we try to do so with little room for error, giving ecosystems only enough to deliver what we seek. Examples include just-in-time delivery of habitat for migrating birds, the deployment of just-in-time water management for fish protection, the provision of just enough protection for species to avoid a jeopardy opinion under the Endangered Species Act, and limitations on protections for desirable species to small habitat areas on the assumption that managers can unfailingly provide the precise conditions the species require.

The inclination toward these approaches is entirely understandable. They present the irresistible promise of using science, technology, and engineering in real time to meet the needs of nature while putting as few constraints on human activities as possible. Who doesn’t want more with less? In so many ways, it fits with our cultural zeitgeist. Even under current conditions, though, this approach often falls apart in the face of uncertainty and the inherent challenges of predicting natural system responses. And when these kinds of efforts fail, they generally place the burden of failure on ecosystems and species; they are not safe-to-fail approaches.

In an uncertain 4ºC world, tight management to achieve a narrow range of ecosystem conditions will be both increasingly expensive and increasingly impossible. The nature or character of an ecosystem is determined based on physical characteristics of the ecosystem, like precipitation, soil characteristics, temperatures, and on species availability (what gets introduced to the ecosystem) and the interactions between the species that find their way into the ecosystem. Changing any of those aspects of an ecosystem can produce a cascade of changes throughout the whole of the ecosystem, altering ecosystem aspects such as the abundance and kinds of species present as well as physical conditions in the ecosystem.

Climate change is already producing widespread changes in ecosystem conditions. Predicting exactly how a particular ecosystem will react to these changes is very difficult, but scientists can nevertheless predict that change is very likely. For example, based on increasing temperatures alone, more than one in every three local species in the Americas will be different in ninety years. The ecosystems that will develop in a 4ºC world are unpredictable, with no analog in today’s ecosystems, and tightly managing those ecosystems to provide desired outcomes will be tremendously, well, uncertain.

Instead, managers must approach ecosystem management with humility, not an expectation of understanding and control. What, precisely, does managing with humility mean? I’m excited to flesh that out in future work, but as a baseline, humility counsels leaving time and space for nature. Physical space: Space for new wetlands. Space for rising seas. Space for shifting floodplains. Space for fire. Space for new species. Space and time for natural processes to develop and shift and adapt. And metaphorical space: relaxed expectations about our ability to control nature and predict the outcome of management actions, more conservative estimates of how species will respond to conservation efforts, more leeway in estimating water needs for nature, less belief in the power of science and engineering to replicate natural systems.

In some ways, leaving space for nature fits well with our 4ºC infrastructure challenges.  Reconciliation ecology, defined by its originator Michael L. Rosenzweig  as “the science of inventing, establishing and maintaining new habitats to conserve species diversity in places where people live, work and play,” provides ways to integrate human and natural systems needs. Thus, to use one example, perhaps “space for wetlands and floodplains” becomes building sea walls and levees set far enough back from coasts and rivers to provide both improved flood protection and space for nature. Moreover, we must also consider how to integrate the inevitable human migration with healthy ecosystems: as people migrate to more hospitable places, we must leave room for nature in the new developments. And, although perhaps it is more restoration than reconciliation, as we manage our retreat from places made unlivable by climate change, we must not salt the earth, but rather rewild the lands and waters we leave behind.

Some states have begun to embrace this approach in their climate adaptation plans. California, for example, lists “prioritize natural infrastructure solutions” as one of its seven overarching principles for climate change adaptation and highlights the importance of restoration and conservation of natural systems to successful adaptation. This is a good start. But more broadly, we must recognize that tight controls of all kinds will fail in a 4ºC future, that the ecosystems of the future will not be the ecosystems of the present, and that nature needs space if it is to continue supporting life in the ways we have come to expect.

October 1, 2021

Western Water Rights in a 4°C Future

[Cross-posted from Environmental Law Prof Blog]

By Kevin Lynch, Shi-Ling Hsu & Karrigan Bork

Western water rights reflect a short and stable climate history, but that period of stability is ending. Looming climate change of 4°C will produce not only higher temperatures, but decreased snowpack, shifts in runoff patterns, and the dramatic shrinkage of giant reservoirs. The climatic changes that have already traumatized the West will only intensify and cross even more dangerous thresholds, necessitating the deliberate adaptation of water rights systems.

Hydrology in a Changing Climate

A climate-changed future is inherently uncertain, but a general consensus predicts a dire future for water supply in the arid West.  Precipitation patterns are the biggest source of uncertainty due to the potential increase in extreme weather events.  This could both increase and decrease water supplies as larger snowstorms could dump more precipitation in some years, while other impacts on the snowpack would lead to declines.  However, higher temperatures in the summer and fall are expected to offset potential increases in snowpack in most years, leading to an overall trend of less water supply in a warming future.  The Colorado River, which supplies vital water to seven states and 23 tribal nations, may experience flow losses due to temperature increases by more than 20 percent midcentury and 35 percent by 2100.  Intra- and inter-annual variability will continue as a hallmark of western water systems. In the Colorado River basin, for example, the impacts of a changing climate are already apparent as the current megadrought fueled by climate change recently led to the first ever federal water shortage declaration.  Experts urge us to plan for even worse impacts to come.

Looking beyond the Colorado River basin, a 4°C world leads to large declines in snowpack in the western United States, perhaps in the range of a 40 percent decrease due to generally less precipitation and shifts from snow to rain.  The snowpack in the Sierra Nevada mountains recently hit its lowest point going back at least 500 years. Decreasing snowpack reduces water availability throughout hot, dry summers, resulting in significant seasonal water shortages.

Warmer temperatures and less frequent precipitation also mean that even normal snowpacks do not necessarily bring relief from droughts.  For example, Colorado’s 2021 snowpack was almost normal, but because soils in many western watersheds were unusually dry, most of the water went into the soils and not into streams, rivers, and reservoirs for human uses.  Another driver of drought in a warming world is the increase in evapotranspiration caused by higher temperatures as plants need more water and evaporation from rivers and reservoirs increases. These factors point towards a drying and warming future in the southwestern United States, particularly in the Colorado River basin.

Water Law Historically Adapted to Hydrology

The changes in the West’s hydrology are very likely to produce changes in water law, which has historically evolved in response to differing climactic conditions. Early U.S. water law decisions drew heavily on English water law, establishing a system based on riparian water rights. Riparian rights come from ownership of land that abuts a watercourse, and they are generally limited to reasonable use of the water on the riparian land. Riparian rights have many other limits; they do not allow storage or long distance transportation of water, for example, and they are not absolute, leading to some uncertainty about the quantity and reliability of water. These limitations meant that riparian rights were poorly suited to western hydrologic regimes where seasonal (and total) water availability patterns require storage and transportation of water to maximize the benefits of available water.

California developed a system of appropriative rights based on the use of water, not on land ownership. Appropriative rights allow water storage and transportation, and these advantages led all of the states west of the Mississippi to adopt some version of appropriative rights. Coastal states like California and Washington, and midwestern states like Kansas and Nebraska, tend to blend riparian and appropriative doctrines, while drier western states like Colorado embrace a purer appropriative rights approach that does not recognize riparian rights at all. Appropriative water rights systems give priority to the first user of the water, an approach often styled “first in time, first in right,” so that later users may not get their full allocation of water in dry years. Maintaining appropriative water rights requires constant vigilance; these rights can be lost through disuse or to other users who take the water. Water rights are tied to the land and to its use; transferring the right to someone else or changing the place or use of the water generally requires permission of a state level water agency.

The appropriative rights and the blended appropriative/riparian rights approaches are both inherently based on historic hydrology and patterns of land use and ownership. This can make them a barrier to climate adaptation. For example, the first-in-time approach gives priority to the earliest water users, regardless of how well suited these uses are to a changing climate or changing societal needs.  Historical aspects of water rights thus sometimes allow lower value agricultural uses to take priority over domestic and industrial uses. Formally, water use is generally required to be reasonable and beneficial, but as a practical matter, courts and water boards rarely rein in inefficiency. Recent droughts have shown many existing uses of water to be even more anachronistic. Because most water in the West is already appropriated, in a drier, climate-changed future, a reordering of priorities seems necessary.

Consider California’s agricultural sector. Though productive and valuable, California's agricultural sector constitutes about 80 percent of the state's human water use while accounting for less than 3 percent of the State's GDP. The ag sector has become significantly more efficient in the last 30 years, using less total water to produce more agricultural value. Nevertheless, in some cases and in some years, California water currently used in agriculture would be more valuable as drinking water or as water to support ecosystems. Growing fewer almonds or making less milk and cheese will likely be necessary in a 4°C world. A successful water rights system should encourage and accommodate these shifts.

Further, use-it-or-lose-it requirements disincentivize water conservation or land use changes that could free up water for other users.  Riparian rights give strong rights to riparian landowners, a system that tends to maintain existing land uses and perpetuate distributive justice concerns. Use-based appropriative rights inherently value use over conservation or other "passive" uses, such as fish and wildlife habitat.

Finally, although existing water rights systems have succeeded in spurring economic development, they have done so at great environmental and social cost. The extensive, massive water diversions that have made California the most productive agricultural state in the United States also completely transformed the entire Central Valley and altered the ecology of much of the state, driving many native species to extinction.

Can Water Law Adapt to a Warmer Future?

How is the western United States to cope with a world that is warmer by as much as 4°C and chronically short of water? We suggest three steps, emphasizing that these represent just a few out of many constructive actions that might be taken to prepare for a much warmer, much drier American West.

New diversions must be evaluated under a conception of reasonableness that includes climate change. Western water law has always embedded notions of reasonableness and almost always been, at least formally if not in practice, predicated on some consideration of public interest. These terms have been either ill-defined or defined in a way that gives short shrift to considerations of conservation and passive uses. The phrase public interest has been infrequently deployed to protect passive or instream uses and has in some cases simply been ignored in water permit applications. Notions of reasonableness or beneficial use must take account of future scarcity of water and an increased need for conservation and domestic uses.

Existing reasonableness requirements must be enforced as a limit on current water rights. With climate change already well underway, many existing allocations of water are economically inefficient, with too little regard for non-agricultural uses. Because most water in the West is already allocated, current water uses must be re-examined and curtailed if they fail to meet a realistic reasonableness test that accounts for the drier, hotter realities of a climate-changed future.

States must actively secure water rights in preparation for severe and prolonged water shortages in the future. States must create new institutions to collect water rights as an effective stockpile against future scarcity, which may present more serious threats than the loss of crops or livestock. States must migrate some water and water rights into a governance mechanism that operates outside of traditional water law. A state-chartered trust instrument, such as a "Resources Trust," might be legislatively charged with gathering up water and water rights in order to act as a water supplier of last resort should the dire need arise. In hedging against severe and prolonged water shortages, such a Resources Trust might employ a range of legal instruments, such as options, to secure future supply.

- By Kevin Lynch, Shi-Ling Hsu & Karrigan Bork

Kevin Lynch is an Associate Professor of Law with Tenure at the Sturm College of Law.

Shi-Ling Hsu is the D'Alemberte Professor at Florida State University College of Law.

Karrigan Bork is an Acting Professor of Law at UC Davis School of Law.


July 23, 2021

America's West is Drying Out. Here's What We Can Do About It

[Cross-posted from CNN]

By Richard M. Frank

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

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

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

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

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

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

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

Enter your email to sign up for the Wonder Theory newsletter.

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

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

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

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

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

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

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

May 18, 2021

Even Research Into Tinkering With the Sky to Fight Climate Change Needs Public Support

[Cross-posted from Slate]

By Albert C. Lin

This summer, Harvard researchers working on a project called Scopex were supposed to fly a literal trial balloon over Sweden. This would have been the first step toward testing a potential method to moderate global warming by releasing small quantities of particles into the atmosphere. Early on, Harvard established an independent advisory committee to provide advice on the science and risks of the proposed experiment, as well as on the need for stakeholder engagement. Recently, however, the Swedish Space Corporation canceled the flight in the wake of opposition from Swedish environmentalists, scientists, and indigenous groups, even though the first flight would have involved no experimental release of particles.

Unprecedented wildfires, storms, and floods make it clear that climate change has arrived. And as climate change worsens, there is growing interest in researching solar geoengineering — a cluster of proposed strategies for reflecting sunlight to reduce the Earth’s warming. For instance, Congress has begun to provide modest funding for modeling and observing stratospheric conditions potentially relevant to solar geoengineering proposals.

The Scopex researchers, who are privately funded, have expressed support for suspending test flights to allow for robust public engagement, and the experiment may still go forward. Nonetheless, the recent cancelation demonstrates that we need more public engagement on solar geoengineering research. Opponents of the Swedish test flights appear more worried about where this research might lead than about any individual test flight — and those worries can’t be ignored. Solar geoengineering research cannot succeed without robust governance and public engagement.

Two of the leading solar geoengineering proposals are stratospheric aerosol injection (to which Scopex is relevant) and marine cloud brightening. Inspired by the cooling effects observed after major volcanic eruptions, stratospheric aerosol injection would attempt to reflect incoming sunlight by distributing small particles high in the atmosphere. Marine cloud brightening, which is patterned after the “tracks” formed when water vapor condenses on particles in ship exhaust, would seek to increase the reflection of sunlight by low-lying clouds.

Those are the goals — but solar geoengineering strategies are not well understood. Each proposed technique comes with substantial questions of feasibility. For stratospheric aerosol injection, these questions include: Which materials should be used and in what quantity? Where and how should materials be released? And what happens to materials after they are released? For marine cloud brightening, the questions include: How do tiny particles interact with clouds? How might clouds be modified to reflect more light? And in what regions might this technique be effective? Researchers also know little about potential impacts on health, ecosystems, and society. Might solar geoengineering reduce crop yields, interfere with Asian and African monsoons, harm biodiversity, or hamper solar energy production?

The many questions surrounding solar geoengineering —including those we haven’t even thought to ask yet—underscore the need for a broad inquiry into its social, political, economic, and scientific dimensions. Yet such research itself raises further questions. What role should the public have in research processes, especially in outdoor experiments that could affect human populations? Might research create momentum for solar geoengineering and lead to deployment before it is appropriate? And could research undermine efforts to reduce greenhouse gas emissions by offering the misleading prospect of a quick and easy solution to climate change?

The concerns associated with solar geoengineering, the controversy raised by outdoor experiments like Scopex, and the planetary implications of solar geoengineering all point to the need for governance of solar geoengineering research. In this context, the National Academies of Sciences, Engineering, and Medicine established a committee, on which I served, to develop a research agenda and recommend research governance approaches for solar geoengineering. Our recent report sets out recommendations geared toward facilitating the production of knowledge to reduce scientific and social uncertainties regarding solar geoengineering.

One key recommendation calls on the federal government, in coordination with other countries, to establish a transdisciplinary solar geoengineering research program that would develop knowledge to inform policy makers. At the same time, we also recommend that all solar geoengineering research be subject to robust governance—which is not the same thing as government. Funders of research, publishers of scientific journals, professional societies, international organizations, and solar geoengineering researchers themselves all have a role to play in attending to the physical and societal risks of research, fostering transparency, and enabling public engagement.

Mechanisms to govern solar geoengineering research should include permitting requirements for outdoor experiments, impact assessment and review processes, a research registry, public engagement efforts, and adherence by researchers and research sponsors to a code of conduct. Public engagement could take the form of citizen consultations in which nonexperts at various locations debate the same policy-related questions pertaining to solar geoengineering and individually vote for prepared answers to the questions posed. Code of conduct provisions should include commitments to make research activities and results public and to monitor and minimize potential adverse effects of research.  Furthermore, ongoing programmatic assessment of solar geoengineering research can evaluate the cumulative impacts of multiple experiments, consider the overall trajectory of research activities, and guard against the entrenchment of ineffective or dangerous technologies.

All of that will take time, money, and commitment. Unfortunately, the worsening impacts of climate change will only increase pressures on policy makers to consider solar geoengineering.

Robust governance is necessary both to facilitate solar geoengineering research and to curb its risks. Adherence to recommended procedures and limits on outdoor experiments can reduce physical risks. Transparency regarding the capabilities and limits of solar geoengineering can counter the potential for solar geoengineering research to detract from other climate efforts. And broad public engagement can improve the quality of research while building the social license to enable the research.

Ignoring solar geoengineering will not make it — or climate change — go away. Research — and robust governance of that research — are essential to making informed decisions about it.


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


January 15, 2021

2021: Is this the year that wild delta smelt become extinct?

[Cross-posted from California WaterBlog]

By Karrigan Börk, Peter Moyle, John Durand, T-C Hung, and Andrew L. Rypel

2020 was a bad year for delta smelt. No smelt were found in the standard fish sampling programs (fall midwater trawl, summer townet survey). Surveys designed specifically to catch smelt (Spring Kodiak Trawl, Enhanced Delta Smelt Monitoring Program) caught just two of them despite many long hours of sampling. The program to net adult delta smelt for captive brood stock caught just one smelt in over 151 tries. All signs point to the Delta smelt as disappearing from the wild this year, or, perhaps, 2022.

In case you had forgotten, the Delta smelt is an attractive, translucent little fish that eats plankton, has a one-year life cycle, and smells like cucumbers. It was listed as a threatened species in 1993 and has continued to decline since then. Former President Trump made it notorious when he called it a “certain little tiny fish” that was costing farmers millions of gallons of water (not true, of course).


As part of the permitting process for Delta water infrastructure, the USFWS issued a Biological Opinion (BO), written by biologists, that found that increased export of water from the big pumps of the State Water Project and the Central Valley Project would further endanger the smelt. The BO was then revised by non-biologists to conclude that increased pumping would not hurt the smelt. The reason given was that large-scale habitat improvement efforts, plus the development of a facility for spawning and rearing of domesticated smelt, would save the species. We have written a short, fairly readable, article for a law journal that describes why the revised BO will not save the smelt. We will not write further about the paper in this blog but encourage readers to give the full article a read (it is a free download).


So, is this the year the smelt becomes extinct in the wild? Frankly, we are impressed by its resilience (see previous California WaterBlogs on smelt status) but small populations of endangered pelagic fish in large habitats tend to disappear, no matter what we do, partly the result of random events.

Looking for delta smelt

We trawl clear Delta water

And find emptiness.