By Rick Frank

[Cross-posted from the San Francisco Chronicle]

One of the keys to former Gov. Jerry Brown’s success as California’s chief executive over the past eight years was the stellar group of individuals he recruited as his top environmental and water officials. Gov. Gavin Newsom’s initial, senior environmental appointments suggest that he is wisely following in Brown’s footsteps. Californians can only hope his water leadership team turns out to be equally strong.

Newsom’s first two environmental appointments are his most important, and his choices are impressive indeed.

Jared Blumenfeld will serve as his secretary for environmental protection. Blumenfeld and the governor have a long history together: After working in Newsom’s mayoral administration as San Francisco’s director of the environment, Blumenfeld served with distinction as Region IX (West Coast/Pacific Rim) administrator for the U.S. Environmental Protection Agency in the Obama administration. In his new state role — a Cabinet position in the Newsom administration — Blumenfeld will oversee the sprawling California Environmental Protection Agency, supervising California’s pollution control, toxic waste management and water rights programs.

Wade Crowfoot was named secretary for natural resources. Crowfoot, another alum of Newsom’s mayoral administration, also previously served as deputy Cabinet secretary and senior adviser to Brown. Most recently, Crowfoot has been the chief executive of the Water Foundation, a think tank focused on water issues in California and the American West. At the Natural Resources Agency, Crowfoot will lead California’s natural resource management efforts, including the state’s climate change adaptation planning initiatives.

Also, California Air Resources Board Chair Mary Nichols — perhaps the single most high-profile and widely respected environmental official in the Brown administration — has agreed to continue in that role for at least the first phase of Newsom’s administration. That’s very good news, especially because it assures Nichols’ continuing leadership in achieving California’s ambitious, pioneering greenhouse gas reduction goals. Nichols has guided the air board since 2007 and served an earlier stint in the 1980s.

Far less settled is how Newsom will fill his administration’s most important positions regarding state water policy. One of Newsom’s key tests confronts him immediately: State Water Resources Control Board Chair Felicia Marcus’ term expires this week. Newsom should reappoint Marcus to another term as chair of the water board, which both oversees California’s multifaceted water pollution control programs and administers the state’s always fractious water rights system. She’s done a masterful job over the past six years — most prominently in leading California’s successful efforts to respond to the unprecedented 2012-2017 drought. Marcus has the experience, leadership ability and people skills to continue to lead the board effectively in the coming years as the state works to craft regulations to protect cities, farms and fish.

Another critical decision for the new governor is whom to appoint as director of the state Department of Water Resources. In the past, the department director’s most important job was to oversee operation of the State Water Project. In recent years, that role had become more complicated — and contentious — because of Brown’s support of California Water Fix (also known as the delta tunnels) project. Brown proved unable to get his legacy water initiative to the finish line. It’s still an open question whether Newsom will continue to pursue or abandon the controversial tunnels.

In either case, Newsom’s water resources director will be the state’s point person in addressing a State Water Project that’s in precarious shape — both as an unreliable water delivery system and because of its undisputed, deleterious effect on a delta ecosystem in a state of ecological collapse.

The Department of Water Resources recently has taken on an increasingly prominent role under the Sustainable Groundwater Management Act, a law passed in 2014 that sets in motion a plan to manage the state’s groundwater basins, which supply a significant amount of the state’s water. That landmark legislation gives the department a lead role in assisting regional “groundwater sustainability agencies” to formulate plans to make California’s chronically over-drafted groundwater basins sustainable in the future. It will be the department’s job to evaluate those plans over the next several years to ensure that the water pumped out doesn’t exceed the amount recharged by nature or man.

To fulfill these responsibilities, Newsom’s director of water resources will have to command the respect of state water agencies, agribusiness and environmental groups. That, in turn, will require technical ability, vision, leadership and extraordinary diplomatic skills.

Newsom’s selection will serve as an early indicator of the governor’s water policy priorities.

By Rick Frank

[Cross-posted from LegalPlanet]

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

Don’t it always seem to go

That you don’t know what you’ve got

`Til it’s gone

        –Joni Mitchell (“Big Yellow Taxi”)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

[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.)

by Kevin R. Johnson

[Cross-posted from ImmigrationProf Blog]

From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender

Growing out of a site visit to Guatemala in the summer of 2015 and a follow-up conference, Raquel Aldana and Steven Bender, editors, have produced an edited volume that considers Guatemala as a case study to examine broad global themes arising from development practices in emerging economies around the world, including the final theme of migration and development.  The book includes chapters by fourteen scholars from the North and South, including Raquel Aldana, Steven Bender, Karrigan Börk, Julie Davies, Patrícia Ferreira, Lauren Gilbert, Christian Gonzalez, Beto Juarez, Mario Mancilla, Marcia Narine Weldon,  Blake Nordahl,  Mario Peña Chacon, Rachael Salcido and Maria Antonia Tigre. 

A significant economic development strategy of emerging economies has involved the promotion of direct foreign investment and trade.  While these practices have promoted steady economic growth, the book offers important lessons to investors and policy makers on strategies to improve distributional justice and respect for the rule of law. A large focus of the book is on enhancing corporate social responsibility, recognizing the unwillingness or inability of failed democracies to regulate industry’s potential ill effects on the environment and people, and in particular indigenous peoples who comprise a significant part of Guatemala’s population and are disproportionately poor. The book also examines such global themes as climate change, labor regimes in the context of trade, and forced migration (mostly from indigenous communities), all of which have transborder implications and across-border commonalities.

Part V of the book looks at the phenomena of migration and development. The recent surge of Central American unaccompanied minors and children fleeing with their mothers to the United States made it imperative to confront the human face of migrants whose fates are rooted in the dire reality that the countries from which they flee cannot or will not protect them. Largely, these migrants are escaping violence perpetuated by private actors, at times by gang members or even their own parents or spouses. Their stories of flight cannot be disengaged from the broader context in which the violence occurs. Theirs is also the story of failed nations, characterized by ineptitude, weakness and, even worse, indifference or at times even complicity. This story of failed nations applies beyond the reign of private “rogues” whom everyone agrees are bad actors (gangs, drug traffickers, violent criminals). The other side of the coin is a more nuanced story about the failing role of some of these Central American nations in regulating the acts of corporations, whether owned by the oligarchy or operated by transnational actors.

Blake Nordahl’s chapter, for example, narrates Evelia’s story. Evelia, like many other Central American asylum seekers, won her case based on a compelling story of domestic violence. Nordahl’s trip to  Guatemala to study Evelia’s prior life in rural Guatemala, however, revealed to him and to readers a more complex entangled story of privatized violence that includes the historical and modern exploitation of people at the hands of Guatemala’s sugar industry. This carefully documented chapter makes a compelling case to move our own asylum and refugee laws beyond simple stories of  individualized violence and to recognize the so-called “economic refugees” from nations like Guatemala as victims of a structural persecution that also involves collusion between the state and corporations.

Lauren Gilbert’s chapter connects Guatemala’s story of migration and violence to both the past and the present— the civil war years to now—and to the licit and illicit actors who exploit them. Her concluding chapter examines the role of gendered violence directed at women in El Salvador, Guatemala, and Honduras both during the political upheavals of the 1980s and 1990s and over the last decade, examining how the failure then to confront gender violence as a form of state-sponsored terrorism led to its role today in contributing to the climate of fear and instability that plagues the region. The gendered violence that propels migration today from the Northern Triangle is connected to this dark yet largely untold history. Today, the levels of violence in these countries match or surpass those during wartime. While today, Northern Triangle states largely blame private actors (e.g., gangs) for the resurgence of violence directed at women, Gilbert’s chapter shows that this new terror cannot be disentangled from these nations’ dark past with gendered state-sponsored violence.

In the end, both Nordahl and Gilbert look to international norms as part of the solution. Nordahl acknowledges that permanent solutions to Guatemala’s structural violence are largely a Guatemala project. However, he also documents that for the past twenty years Guatemala’s feeble attempts at land reforms and poverty alleviation through multiple policies have been largely inadequate. Thus, at least for now, Nordahl makes a compelling case that more expansive notions of persecution must be adopted as part of refugee law to recognize economic exploitation as persecution. For her part, Gilbert sees hope in international law’s evolution in recognizing gendered violence, a significant shift from when she worked as a UN Truth Commission lawyer in El Salvador more than twenty-five years ago. This new visibility and naming of gendered violence is an important first step to counter practices, including in the United States, of turning our backs on persecuted women and girls.

Download Introductory chapter of book

by Christopher S. Elmendorf, Richard Frank and Darien Shanske

[Cross-posted from the San Francisco Chronicle]

The recent defeat of Senate Bill 827, state Sen. Scott Wiener’s bill allowing 5-story buildings near transit hubs, was an enormous setback for California’s efforts to make housing more affordable while reducing greenhouse gas emissions.

Our state is now in a serious bind.

The only way to make California housing widely affordable is to build a lot more of it. We could do this with Texas-style suburban sprawl — Houston has boomed while remaining affordable — but that would sacrifice the environment. The alternative is to add residential density to existing neighborhoods, near job centers and mass transit.

California picked density over sprawl a decade ago, when it enacted SB375, a commendable law that requires local governments to plan for energy-efficient, transit-oriented development. Yet most city and county planners report that this planning mandate has had “little to no impact on actions by their city.”

The defeat of Wiener’s bill and the so far meager impact of SB375 speak to a deeper truth: California is not going to achieve large-scale, high-density development near transit unless it can change the local politics of housing.

In theory, the state might induce pro-housing political realignments with taxes and subsidies — for example, reallocating property tax revenue to cities that allow dense housing near transit and starving those that don’t. But the quick demise of SB827 suggests that serious penalties are not yet enactable, and subsidies would have to compete with many other General Fund priorities.

We think California can bolster pro-housing forces at the local level without bringing down the hammer or breaking the bank. Consider these alternatives:

1. Leverage “cap and trade” to make the climate consequences of density more transparent — and more tangible. The linchpin of California’s climate change regime is the state’s cap-and-trade program, which puts a statewide ceiling on greenhouse gas emissions from industrial sources and requires emitters to buy allowances for their releases. California could strengthen pro-housing forces in city politics by folding local governments into the cap-and-trade program.

The state would issue a formula estimating the per-dwelling climate impact of new developments, taking account of proximity to transit, size, materials and parking. When a local government permits new housing that’s more climate-efficient than the typical new unit statewide, it would be rewarded with credits to sell in the cap-and-trade market.

This would give pro-housing “YIMBY” activists a green cudgel to wield in local fights over development. Using the state’s formula, proponents could quantify the environmental benefits of each project near transit. Meanwhile, budget-minded city officials would have a fiscal incentive to upzone land near transit. The more transit-friendly development the city permits, the more allowances it would earn to sell in the greenhouse-gas market.

2. Reframe local debates with state reporting of “housing potential” along transit lines. Guardians of the status quo point out that San Francisco has increased its housing production in recent years. But the picture would look quite different if we compared current production to the city’s potential for transit-friendly housing, rather than to the city’s very modest output over the past few decades.

3. Let cities recapture the value they can create by upzoning and streamlined permitting. Opponents of Wiener’s bill called it a giveaway to developers. They had a point. Rezoning a lot from single-family use to five-story apartments increases its value tremendously. Why should the landowner keep all that profit? When local governments control rezoning, they can demand ancillary benefits such as affordable-housing units, infrastructure investments, and more. All this is standard fare — and not just for major rezonings, but for individual projects under the highly discretionary permitting rules that prevail at the local level today.

Yet project-by-project bargaining has major downsides. The uncertainties and delays, and the inefficient medium of exchange (in-kind benefits rather than money), contribute to the result we see all around us: an inadequate supply of new housing. Local officials surely understand this, but right now they have no way to profit from clear, nondiscretionary rules for development.

To encourage development on lands near transit, California should allow cities to share directly in the property value created by upzoning and permitting reforms. Cities could be authorized to impose “special assessments” for upzoning or permit-streamlining on lands within a half-mile of transit — recouping, say, 50 percent to 75 percent of the value added. The state law authorizing such value-recapture assessments would probably need to be approved by referendum vote. But once it is enacted, cities would have a fiscal incentive to supplant project-specific haggling with transparent, value-enhancing and development-enabling rules.

Our state’s housing-affordability crisis was decades in the making, and these solutions won’t work miracles overnight. But if state-mandated upzoning is off the table, and state-mandated planning is ineffectual, we had better start thinking about ways the state might intervene at the root, targeting the local politics of housing.

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.

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.

By Richard Frank

On Saturday, January 20th, I had the opportunity to accompany a number of King Hall water law students to the 14th Annual Water Law Symposium, held this year at UC Berkeley. The symposium is an extraordinary collaboration among six different Northern California law schools--including King Hall. Remarkably, this annual event is wholly student-organized and -produced, and recently won an American Bar Association award as the best law student-organized event in the nation. It's also become California's premier water law conference.

The theme of this year's symposium was "The Future of California's Water Infrastructure"--a most timely topic given the 2017 failure of the Oroville Dam and other water-related infrastructure challenges. King Hall's contribution to the symposium took the form of organizing and presenting a panel on "The Challenges of an Evolving Climate: A Case Study of the Impacts of Wildfire on California's Water Infrastructure."

Special kudos to King Hall water law student Ellen Simmons '19, one of the organizers of the UC Davis panel at the Symposium. When one of the panelists was forced to cancel at the last minute due to a personal emergency, Ellen stepped up, assumed the panel moderator's role and performed flawlessly in that capacity. Similarly, King Hall faculty colleague Camille Pannu, Director of the Water Justice Clinic, graciously did double duty at the symposium: in addition to speaking on the King Hall-organized panel with Ellen, Professor Pannu pinch-hit for a UCLA Law School colleague who was unable to travel to UC Berkeley due to the Montecito mudslides and subsequent closure of Highway 101.

[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.