An Overview of Senate Bill 827

By: Andrew Angeles

Since it was introduced on January 03, 2018 by State Senator Scott Weiner, Senate Bill 827 has been a controversial piece of legislation for California.  The bill could have drastic impacts on California’s land use and housing developments. This client alert aims to break down what the bill does and the major provisions of the amended bill.[1]  This alert will also summarize arguments for and against the bill to inform readers on the potential implications of the policy.

What does SB 827 do?

In its most recent form, Senate Bill 827 would add Chapter 4.35 to the Government Code relating to land use.  The bill creates a bonus for transit-rich projects.[2]  Transit-rich projects are defined in the bill as a residential development projects with all parcels that are ½ mile of a major transit stop or ¼ mile of a stop for a high-quality bus corridor.[3]  High quality bus corridors are fixed bus route services with service intervals of 15 minutes, 20 minutes, 30 minutes dependent upon the time of day.[4]  If a developer complies with the SB 827 planning standards, local governments would be required grant the bonus.  For compliance, developers must meet the requirements for:[5]

  • Demolition permitting
  • Local inclusionary housing ordinances
  • Locally adopted objective zoning standards
  • Locally adopted minimum unit mix
  • Preparation of a relocation benefits and assistance plan.

The bonus is valuable for developers because it preempts local zoning ordinances and exempts the developer from several requirements.  In doing so, the bill bolsters developers and allows for more dense developments near major transit stations and bus stops.  The caveat for recipients is that they must provide benefits to people displaced by a project such as payments, relocation benefits, and assistance plans.  At its essence, the bill makes it easier for developers to build large and dense developments near transit hubs while the displacement assistance attempts to mitigate housing lost.[6]

April 10, 2018 Amendments

The latest amendments incorporate feedback from supporters and opponents of the bill.[7]  The minimum heights requirements were decreased, an 85-foot height allowance was removed, and bus corridors were redefined to apply to fewer stops.[8]The result is that the bill “has been downsized” by the amendments.[9]  These amendments attempt to ensure that the law creates more affordably housing rather than high-rise apartments.

In addition, some amendments directly address affordable housing. For example, if a development has 10 or more units, then a portion must be reserved for low income housing.[10]  Developers also must replace any affordable housing demolished during a project.[11][12]  The amendments also require applicants to provide each resident of the development a free recurring monthly transit pass.[13]

Viewpoints on Implications of the Bill

Proponents of SB 827 include developers, affordable housing advocates, and environmental advocates.  Supporters argue that SB827 would contribute more higher density residential housing helping to alleviate the housing crisis.[14]  Further developments near transit hubs would mean a higher reliance on public transit alleviating traffic issues.[15]  Environmentalists contend that the increased density and lack of parking will force Californians out of cars. (decrease the per person vehicle miles traveled and therefore decrease GHG emissions).[16]

Opponents of the bill argue that SB 827 will allow for wealthy developers to create high priced/luxury housing displacing existing communities.[17]  Particularly San Franciscans are concerned that the new housing bill will result in the Bay Area looking more like Manhattan, NY.[18]  Critics argue that throughout the state low-income communities will be priced out and pushed away from public transit making the housing crisis worse and creating transportation problems.[19]

Takeaways

Why is SB 827 relevant and you should care about it?

SB827 could have a dramatic impact on California’s housing with many potential pros and cons.  If passed, the bill could decrease housing prices and Californians will have more places to live.  If nothing is done, California will still face a steep cost of living and housing prices. Without the bill, California would still need to do something about transit issues (reliance on cars), and housing. The amendments help the affordable housing concerns, but are they enough?  If you are planning on moving to or within California, this bill could change what California looks like, your housing options, and transit options. Even if you don’t plan on moving, you will see the ramifications of the bill or lack thereof in California’s cost of living.

You should care about the bill because the policy is still being hotly debated and formed. The next steps for the bill is a hearing by the California Senate’s Transportation and Housing Committee on April 17, 2018.[20] With the heated discussion around the bill, more negotiations and changes to the bill are expected.    It is crucial for Californians to be vigilant of changes and the potential consequences.  The public discourse has had a dramatic impact in shaping the bill thus far.[21] Since the bill can have large ramifications for all Californians, it is essential that citizens vocalize concerns and provide thoughtful feedback.

 

[1]At the time of writing, the Bill was amended April 10, 2018.

[2]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[3]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (f), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[4]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (d), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[5]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[6]Note: please be aware that this article does not contain all the specific details of SB 827 due to its complexity.

[7]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

[8]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/(from 8 stories to 5 stories (for developments ¼ mile surrounding a transit hub) and from 5 stories to 4 stories (for developments ½ mile away)

[9]Id.

[10]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[11]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[12]Note: The amendments also prevent SB 827 from applying under Ellis Act evictions.  The bill would also have a delayed start (starting January 1, 2021). The delayed start would allow local governments plan for the new bill through studies and updating policies.

[13]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[14]Letters to the Editor, Cities caused housing crisis, SB 827 fixes it,Mercury News (Mar. 25, 2018) https://www.mercurynews.com/2018/03/25/letter-cities-caused-housing-crisis-sb-827-fixes-it/

 

[15]Tom Means, Opinion: SB 827 helps solve Bay Area housing, traffic challenges,The Mercury News (Mar. 19, 2018) https://www.mercurynews.com/2018/03/16/opinion-sb-827/

[16]Matthew Yglesias, The Myth of “forcing people out of their cars”,VOX (Mar. 19, 2018), https://www.vox.com/policy-and-politics/2018/3/19/17135678/sb-827-cars-california-transit-trains-buses

[17]Tara Sreekrishnan, SB827 will exacerbate California’s housing crisis, The Mercury News (Mar. 24, 2018), https://www.mercurynews.com/2018/03/24/opinion-sb-827-will-exacerbate-california-housing-crisis/

[18]Riley McDermid, New housing bill to add housing near transit has residents worried about the ‘Manhattan-ization’ of the Bay Area,Silicon Valley Business Journal (Mar. 5, 2018) https://www.bizjournals.com/sanjose/news/2018/03/05/sb-827-wiener-transit-housing-bill-density.html; See also Adam Brinklow, SF Planning Commission cringes at Wiener’s transit-housing bill,SF Curbed (Mar. 16, 2018) https://sf.curbed.com/2018/3/16/17130904/san-francisco-planning-commission-wiener-housing-transit

[19]Id.

[20]Matt Tinoco, SB 827: A guide to California’s transit density, housing bill, LA Curbed https://la.curbed.com/2018/4/10/17178288/california-senate-bill-827-transit-zoning-los-angeles

[21]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9, 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

Since it was introduced on January 03, 2018 by State Senator Scott Weiner, Senate Bill 827 has been a controversial piece of legislation for California.  The bill could have drastic impacts on California’s land use and housing developments. This client alert aims to break down what the bill does and the major provisions of the amended bill.[1]  This alert will also summarize arguments for and against the bill to inform readers on the potential implications of the policy.

 

What does SB 827 do?

In its most recent form, Senate Bill 827 would add Chapter 4.35 to the Government Code relating to land use.  The bill creates a bonus for transit-rich projects.[2]  Transit-rich projects are defined in the bill as a residential development projects with all parcels that are ½ mile of a major transit stop or ¼ mile of a stop for a high-quality bus corridor.[3]  High quality bus corridors are fixed bus route services with service intervals of 15 minutes, 20 minutes, 30 minutes dependent upon the time of day.[4]  If a developer complies with the SB 827 planning standards, local governments would be required grant the bonus.  For compliance, developers must meet the requirements for:[5]

  • Demolition permitting
  • Local inclusionary housing ordinances
  • Locally adopted objective zoning standards
  • Locally adopted minimum unit mix
  • Preparation of a relocation benefits and assistance plan.

The bonus is valuable for developers because it preempts local zoning ordinances and exempts the developer from several requirements.  In doing so, the bill bolsters developers and allows for more dense developments near major transit stations and bus stops.  The caveat for recipients is that they must provide benefits to people displaced by a project such as payments, relocation benefits, and assistance plans.  At its essence, the bill makes it easier for developers to build large and dense developments near transit hubs while the displacement assistance attempts to mitigate housing lost.[6]

 

April 10, 2018 Amendments

The latest amendments incorporate feedback from supporters and opponents of the bill.[7]  The minimum heights requirements were decreased, an 85-foot height allowance was removed, and bus corridors were redefined to apply to fewer stops.[8]The result is that the bill “has been downsized” by the amendments.[9]  These amendments attempt to ensure that the law creates more affordably housing rather than high-rise apartments.

 

In addition, some amendments directly address affordable housing. For example, if a development has 10 or more units, then a portion must be reserved for low income housing.[10]  Developers also must replace any affordable housing demolished during a project.[11][12]  The amendments also require applicants to provide each resident of the development a free recurring monthly transit pass.[13]

 

Viewpoints on Implications of the Bill

Proponents of SB 827 include developers, affordable housing advocates, and environmental advocates.  Supporters argue that SB827 would contribute more higher density residential housing helping to alleviate the housing crisis.[14]  Further developments near transit hubs would mean a higher reliance on public transit alleviating traffic issues.[15]  Environmentalists contend that the increased density and lack of parking will force Californians out of cars. (decrease the per person vehicle miles traveled and therefore decrease GHG emissions).[16]

 

Opponents of the bill argue that SB 827 will allow for wealthy developers to create high priced/luxury housing displacing existing communities.[17]  Particularly San Franciscans are concerned that the new housing bill will result in the Bay Area looking more like Manhattan, NY.[18]  Critics argue that throughout the state low-income communities will be priced out and pushed away from public transit making the housing crisis worse and creating transportation problems.[19]

 

Takeaways

Why is SB 827 relevant and you should care about it?

 

SB827 could have a dramatic impact on California’s housing with many potential pros and cons.  If passed, the bill could decrease housing prices and Californians will have more places to live.  If nothing is done, California will still face a steep cost of living and housing prices. Without the bill, California would still need to do something about transit issues (reliance on cars), and housing. The amendments help the affordable housing concerns, but are they enough?  If you are planning on moving to or within California, this bill could change what California looks like, your housing options, and transit options. Even if you don’t plan on moving, you will see the ramifications of the bill or lack thereof in California’s cost of living.

 

You should care about the bill because the policy is still being hotly debated and formed. The next steps for the bill is a hearing by the California Senate’s Transportation and Housing Committee on April 17, 2018.[20] With the heated discussion around the bill, more negotiations and changes to the bill are expected.    It is crucial for Californians to be vigilant of changes and the potential consequences.  The public discourse has had a dramatic impact in shaping the bill thus far.[21] Since the bill can have large ramifications for all Californians, it is essential that citizens vocalize concerns and provide thoughtful feedback.

 

[1]At the time of writing, the Bill was amended April 10, 2018.

[2]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[3]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (f), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[4]Chapter 4.35 Transit Rich Housing Bonus 65918.5 (d), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[5]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[6]Note: please be aware that this article does not contain all the specific details of SB 827 due to its complexity.

[7]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

[8]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/(from 8 stories to 5 stories (for developments ¼ mile surrounding a transit hub) and from 5 stories to 4 stories (for developments ½ mile away)

[9]Id.

[10]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[11]Katy Murphy, High-rise apartments stripped from controversial California housing bill, Mercury News (Apr. 10, 2018) https://www.mercurynews.com/2018/04/10/high-rise-apartments-stripped-from-controversial-california-housing-bill/

[12]Note: The amendments also prevent SB 827 from applying under Ellis Act evictions.  The bill would also have a delayed start (starting January 1, 2021). The delayed start would allow local governments plan for the new bill through studies and updating policies.

[13]SeeLegislative Counsel’s Digest, Senate Bill No. 827, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827

[14]Letters to the Editor, Cities caused housing crisis, SB 827 fixes it,Mercury News (Mar. 25, 2018) https://www.mercurynews.com/2018/03/25/letter-cities-caused-housing-crisis-sb-827-fixes-it/

[15]Tom Means, Opinion: SB 827 helps solve Bay Area housing, traffic challenges,The Mercury News (Mar. 19, 2018) https://www.mercurynews.com/2018/03/16/opinion-sb-827/

[16]Matthew Yglesias, The Myth of “forcing people out of their cars”,VOX (Mar. 19, 2018), https://www.vox.com/policy-and-politics/2018/3/19/17135678/sb-827-cars-california-transit-trains-buses

[17]Tara Sreekrishnan, SB827 will exacerbate California’s housing crisis, The Mercury News (Mar. 24, 2018), https://www.mercurynews.com/2018/03/24/opinion-sb-827-will-exacerbate-california-housing-crisis/

[18]Riley McDermid, New housing bill to add housing near transit has residents worried about the ‘Manhattan-ization’ of the Bay Area,Silicon Valley Business Journal (Mar. 5, 2018) https://www.bizjournals.com/sanjose/news/2018/03/05/sb-827-wiener-transit-housing-bill-density.html; See also Adam Brinklow, SF Planning Commission cringes at Wiener’s transit-housing bill,SF Curbed (Mar. 16, 2018) https://sf.curbed.com/2018/3/16/17130904/san-francisco-planning-commission-wiener-housing-transit

[19]Id.

[20]Matt Tinoco, SB 827: A guide to California’s transit density, housing bill, LA Curbed https://la.curbed.com/2018/4/10/17178288/california-senate-bill-827-transit-zoning-los-angeles

[21]Scott Wiener, SB 827 Amendments: Affordability, Transit Lines, Height, Ellis Act Protections & MoreMedium (Apr. 9, 2018) https://medium.com/@Scott_Wiener/sb-827-amendments-affordability-transit-lines-height-ellis-act-protections-more-fae09ee3f897

Desalination: Technological and Legal Issues

Desalination: Technological and Legal Issues

By Andrew Angeles

In the 2016-2017 winter, California received enough rain such that most of the state is no longer facing a severe drought.[1]  However, problems associated with water scarcity in a state with 39.25 million people will not be resolved from one wet season.  This is especially true when the state contains three of the four North American Deserts with little fresh water sources.  Combined with climate change and the increase in global temperatures, California will likely find itself in the middle of another drought in the coming years.  Therefore, Californians should be prepared for alternatives plans to prepare for water scarcity.  One such possibility for California is using desalination.  However, the method comes with numerous technological and local issues.  Desalination is an energy intensive method that pumps salt water at high pressures through a variety of filters.  The result is clean water that can be used for distribution to customers.  This blog post will briefly outline the major technological and legal issues associated with desalination.  Further, it concludes that desalination technology requires development and Californians should focus on conservation efforts.

Monetary Costs of Desalination: Infrastructure and Technology

The costs for the development of the infrastructure and the operation of plants are high.  The Pacific Institute found that though the operation costs have variability, plants can still cost $1,900-$3,000 per acre-foot.[2]  Essentially, plants end up costing millions of dollars for installation and operation.  The Carlsbad desalination plant cost $1 billion to build and $50 million a year for the operation.[3]  The high costs of the technology get passed onto consumers that receive abnormally large bills.  For example, the Carlsbad desalination plant’s consumers pay more than double compared to most Southern California cities.[4]  While the costs for desalination have been driven down over the years, the monetary costs remain high.  Desalination has been successful in certain contexts and desalination costs are decreasing, but for California to explore desalination as a solution comes with a large price tag.[5]  Monetary costs are not the only consequences of attempting to shift to a desalination supply right now.

Local Environmental Issues: Brine and Marine Life

Desalination also presents multiple environmental issues and costs associated with its use in California.[6]  First since desalination requires a location along the coast near the saltwater, marine life is put at risk.[7]  The original seawater is pumped into the desalination plants, but aquatic life such as fish, plankton, and larvae may be killed on the intake screens.[8]  Those same animals could be killed during the desalination process as well.[9] These issues are known as impingement and entrainment respectively.[10]  Additionally, after the desalination process, the salt brine waste is dispersed back into the ocean.[11]  However, little is known about the long-term impacts of the disposal.[12]

Climate Change Issues

The main climate change issues come with the energy needed to pump the water and filter it.[13]  There is also energy required to pump both the brine and distribute clean water to consumers.  The energy used relies upon power sources that may emit greenhouse gases.[14]  Nearly half of California’s electricity and energy power supply rely upon natural gas, which still emits pollution into the air.[15]  It must be said that if California switches entirely onto renewable energy, the energy and G.H.G. emissions concerns are mitigated.  Yet a 100% switch faces numerous challenges and is another discussion.

Legal Landscape

The legal landscape surrounding desalination started with planning and development laws.  The 1965 Saline Water Conversion Law, 1999 California Water Plan, and 2002 Water Desalination Task Force are all dedicated for exploring the opportunities and impediments of desalination.[16]  Over time some laws have been dedicated toward funding such as SB 314 2003 Desalination.[17]  Recently, the 2004 California Ocean Protection Act attempts to protect ocean resources within existing fiscal limitations by coordinating state agencies.[18]  Further, the AB 2918 2004 Desalination Facilities required the commission to consider desalination considering electricity policies.[19]  SB 318 2004 Urban Water Suppliers: Desalination Water is another planning bill focused on the opportunities in ocean water, brackish water, and ground water.[20]  The laws have been largely exploratory and planning oriented, but more laws may be passed in support of, or against the desalination industry.

Discussion

After considering monetary costs and the environmental costs, the costs seem to outweigh the benefits of installing and operating desalination plants for the time being.  It should be noted that not all the issues have been touched upon as this is a complex issue.  While California should keep on open mind for technology and policy solutions to issues, desalination now comes with high costs when there are short-term alternatives.  For example, California can reduce water usage and consumption.  Conservation methods can also have a substantial impact on the California’s water resources.  Thus, more research and technological development is required before desalination can be implemented in California on a large scale.

[1] .  California Water Science Center, Is the drought over?, May 31, 2017.

[2] Key Issues in Seawater Desalination in California: Marine Impacts, Dec. 11, 2013.

[3] David Gorn, Desalination’s Future in California is Clouded by Cost and Controversy, Oct. 31, 2016.

[4] Id.

[5] Anthony Bennett, Cost effective desalination; Innovation continues to lower desalination costs, Feb. 14, 2012; Michael Hiltzik, Desalination plants aren’t a good solution for California Drought, Apr. 24, 2015.

[6] David Gorn, Desalination’s Future in California is Clouded by Cost and Controversy, Oct. 31, 2016.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Daniel Potter, Why Isn’t Desalination the Answer to All California’s Water Problems?, Dec. 18, 2015.

[14] Id.

[15] California Air Resources Board, California Greenhouse Gas Emission Inventory Program, Nov. 20, 2017.

[16] Water Desalination, California Department of Water Resources, July 20, 2015.

[17]Id.

[18] Id.

[19] Id.

[20] Id.

“Natural” Disasters, Who Can be Held Liable? California Fires and Global Climate Change

“Natural” Disasters, Who Can be Held Liable? California Fires and Global Climate Change

By Alexander Cervantes

In the past month California has been set ablaze by a series of disastrous wildfires.  Julia Prodis Sulek, Santa Rosa fire: How a sudden firestorm devastated a city, Oct. 9, 2017.  This firestorm is being considered one of the most lethal and destructive for California on record, which necessitated hundreds of thousands to evacuate.  Doyle Rice, California wildfires: A record week of death and destruction, Oct. 12, 2017.  Many were given notice so short that flames literally lashed at their heels.  Paul Payne, More North Bay residents sue PG&E over wildfires, Nov. 1, 2017.  Today, more than forty people have perished and over 14,000 homes were damaged or destroyed.  Shelby Grad & Richard Winton, Losses from Northern California wildfires top $3 billion; 14,000 homes destroyed or damaged, Oct. 31, 2017.

Multiple factors played a role in creating this devastating firestorm.  Madison Park, How did Northern California fires become so devastating?, Oct. 11, 2017.  There were hurricane-force winds.  Id.  The fires started at night giving residents and authorities little notice.  Id.  There was an overgrowth of vegetation which allowed the fire to spread rapidly.  Id.  And October’s dry conditions is also suspected to have influenced to the “perfect storm” for wildfires.  Id.  State fire officials are still investigating the cause of the blazes, but reports now point to PG&E regarding its equipment maintenance and whether it adequately cut back trees from power lines to reduce fire risk in accordance with state law.  George Avalos, Matthias Gafni, & Paul Rogers, PG&E power lines linked to Wine Country fires, Oct. 10, 2017.  The Harvells, a Santa Rosa couple who lost their home along with over 1,000 others to the Tubbs fire, were the first to file a lawsuit against PG&E alleging it was negligent in its maintenance of equipment which came into contact with drought-dry vegetation.  Paul Payne & Mary Callahan, Santa Rosa couple sues PG&E over Sonoma County fires, Oct. 17, 2017.  Now there are more than 100 people filing nine separate complaints against the utility provider.  Paul Payne, More North Bay residents sue PG&E over wildfires, Nov. 1, 2017.

Though these fires may seem like a “natural” disaster, PG&E may have played a large role in its creation and/or exacerbation.  As a utility provider, PG&E owed a general duty of care to foreseeable plaintiffs, the residents in the area, and a contractual duty to those it serviced.  See Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 434 (1976).  The defense PG&E will most likely use, according to UC Hastings Law Professor David Levine, is that the fires were an “act of God”— that the storm was an unfortunate but natural occurrence, and that utility provider could not be responsible.  CBS SF Bay Area, Wildfire Victims Sue PG&E While Officials Continue To Investigate Cause, Oct. 18, 2017.  Furthermore, PG&E would challenge the causation requirement for negligence liability, alleging that if there were any issues with their equipment maintenance, the production of such a devastating fire would not have been within the scope of foreseeable risks.  See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 351 (1928).

However, many would argue that that PG&E’s failure to maintain this explosive equipment and overgrowth of trees is definitely a foreseeable risk that could lead to a forest fire or intensify one.  California is notorious for its long drought season and October is an especially dry month.  Despite, this obvious risk PG&E the state’s last regulatory audit showed that the company was dangerously behind schedule for repairs in the electrical grid, a total 3,527 separate repair orders in Santa Rosa and Sonoma.  Jaxon Van Derbeken, State Audit Shows PG&E Had Repair Job Backlog in Sonoma, Santa Rosa, Oct. 20, 2017.  Correspondingly, PG&E does not have the best track record when it comes down to disasters it was responsible for.  Corey Law, The Corey Firm Partners with Two Other Top Bay Area Law Firms in Northern California to Represent Those Impacted by the October 2017 Northern California Fires in Santa Rosa, Napa County, Sonoma County, and Lake County, Oct. 2017.  The San Bruno Pipeline Explosion, the Hinkley Groundwater contamination, and the 2015 Butte Fire are just a few catastrophic disasters PG&E was deemed responsible for.  Id.  “Cal Fire found PG&E responsible for the 2015 Butte fire, which destroyed 549 homes and killed two people. The fire was sparked by a tree that fell into a power line … The California Public Utilities Commission fined PG&E $8.3 million for the fire.”  Paul Payne, More Sonoma County residents sue PG&E over wildfires, Nov. 1 2017.  “In 2015, regulators fined PG&E $1.6 billion for the 2010 San Bruno pipeline explosion, which killed eight people.”  Id.  This long history of past malfeasance does not aid its defense.  When continued failures occur, by a utility provider that the community relies on, minimum standards of care must be increased along with courts’ finding of fact as to what is “reasonably foreseeable.”  Colleen E.Brown, Stephanie E.Chang, & Timothy L.McDaniels, Article, Utility Provider Liability for Electrical Failure: Implications for Interdependent Critical Infrastructure, 19 The Elec. J., 69, 69 (2006).

The Harvells’ suit has triggered a “tidal wave”—as Andrew Bradt, associate professor of at UC Berkeley’s School of Law, put it—of civil cases, both state and federal on behalf of out-of-state plaintiffs who suffered damage or loss from these fires. Paul Payne & Mary Callahan, Santa Rosa couple sues PG&E over Sonoma County fires, Oct. 17, 2017.  PG&E has $800 million in liability insurance but estimates for fire damages are already ranging as high as $3 billion.  Emily DeRuy, Santa Rosa couple claims PG&E negligence led to wildfire, Oct. 18, 2017.  This has put the company’s financial stability in jeopardy and raised questions as to how victims will be compensated.  Id.

These California fires lead us to think about what other “natural” disasters big corporations could be liable for because of their malfeasance.  Perhaps more attenuated but the threats and harms still very much a reality, climate change is a disaster more and more people are looking to be compensated for.  This is an environmental issue that has been exacerbated by human nature especially through our use of fossil use.  Instead of negligence claims, suits have been brought against oil companies for nuisance.  See Comer v. Murphy Oil USA, 718 F.3d 460 (5th Cir. 2013); Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).  In Native Village of Kivalina, plaintiffs sues because their entire village was sinking due to increased water levels, necessitating them to evacuate their homes.  Id. at 849.  Plaintiffs alleged that Exxon conspired to create a false scientific debate to deceive the public creating a public nuisance.  Id. at 858.  However, these claims were preempted by the Clean Air Act which provides that the Environmental Protection Agency (EPA) regulate greenhouse gases.  Id.

Suits did not halt there, however.  This year, multiple Bay Area cities filed separate lawsuits against Chevron, ConocoPhillips, ExxonMobil, Shell, and BP all for public nuisance.  Kimberly Willis, Taking on the Fossil Fuel Industry: Why California’s Public Nuisance Lawsuits May Succeed Where Others have Failed, Oct. 16, 2017.  The cities of San Francisco and Oakland allege that these companies, which account for 7.4% of global greenhouse gas emissions, knew that their actions contributed to climate change and the resulting sea level rise.  Id.  These suits may be successfult because courts have not yet addressed whether the Clean Air Act preempts state common law public nuisance claims.  Id.

The California fires and climate change cases are still in their early stages and we will have to wait and see whether these individuals and cities can be compensated for the wrongs done by large corporations.  But we can be hopeful that those wronged can have their day and court have justice be served.

How Illegal Water Use for Growing Marijuana is Doing Untold Damage to California’s Environment and Why New Regulations May Exacerbate Rather than Eliminate the Problem

How Illegal Water Use for Growing Marijuana is Doing Untold Damage to California’s Environment and Why New Regulations May Exacerbate Rather than Eliminate the Problem

By Asha Wiegand-Shahani

One of the most egregious yet underreported environmental crimes associated with marijuana is the illicit and illegal use of water to grow the plants that form the basis of the industry.  The recent trend toward legalization of marijuana has done little to curb the unauthorized water use that is a hallmark of the field.[1]  In November 2016, Prop 64 fully legalized marijuana in the state of California, and with it came a new set of environmental regulations that went into effect in October 2017 in preparation for recreational sales of marijuana in January 2018.[2]  It is still unclear, however, how much increasing regulation is doing to stem the tide of unlawful water use.

Marijuana does not thrive in the wild in California due to the fact that its water needs are diametrically opposed to the wet-dry cycles of California’s Mediterranean climate.[3]  California gets more than ninety percent of its rainfall between October and April every year, meaning that the summers are the dry season in California.[4]  Marijuana, especially when it is cultivated outdoors, requires the most water between the months of May and October, when California’s climate is at its driest.[5]  This is highly problematic when a crop as water reliant as marijuana becomes widely cultivated.  Since marijuana necessitates access to a high volume of water, and until recently marijuana farmers have needed to remain as mobile in their operations as possible to avoid detection by authorities, marijuana farmers typically obtain the water they need to support their crop by directly diverting surface water from the source.[6]  Marijuana is cultivated in large quantities in Northern California, and as a result, the aggregate effects of these direct diversions are staggering.

The majority of these diversions take place in the summer when rainfall and water flow are at their lowest, which means these diversions by marijuana farmers cause more damage than they would if they were taking place during the winter months, when rainfall is much more plentiful.[7]  Multiple studies have noted that illegal water diversions used to cultivate marijuana in several watersheds in Humboldt and Mendocino Counties use between 33% and 100% of the natural water flow in those areas.[8]  This means that marijuana cultivation alone in those watersheds is sometimes enough to use all of the surface water available in that area and completely dewater the lakes, rivers, and streams on which entire ecosystems depend.[9]

The result of these illegal diversions is untold environmental damage.  Plants and trees—including old growth redwood forests such as Redwood National Park—are threatened by a lack of water and may die out if these diversions are not controlled.[10]  The Coho Salmon, listed as a threatened species under the Endangered Species Act has lost seventy percent of its population since the 1960’s.[11]  These salmon, and all other fish species native to Northern California watersheds, are effected by these diversions not only by the lowering of surface water runoff, but also by an increase in the sediment content and temperature of the runoff that does remain in the watershed.[12]  The lack of cool, clear water due to illegal water diversions has especially harmed the Coho salmon and other salmonoid fish which require a regular flow of such water to thrive.[13]  The warmer, murkier water left in streams and rivers has reduced fish habitat, decreased the food supply, and increased competition and disease among salmonoid fishes.[14]  If current water use trends continue, seventy eight percent of California’s native salmonoid fish species are expected to die off or move to more favorable watersheds by 2115.[15]  Illegal water diversions also harm amphibians such as the coastal tailed frog, but it is unclear exactly how these extreme reductions in essential water flow are affecting the amphibians native to Northern California.[16]

The expense of paying the consumer rate for water, the difficulty and cost of obtaining water rights in the state of California, the criminal penalties for stealing from utility companies, and the legal conflicts between state and federal laws are all powerful incentives for marijuana farmers to illegally divert sources of surface water.  This is especially true in Northern California—where the landscape is heavily forested, the population is less dense, and where most of California’s fresh surface water is located—making it easier for marijuana farmers to directly access surface water and diminishing the chances they will get caught.[17]  Illegal surface water diversions by marijuana farmers have done staggering amounts of environmental damage in the years since Congress passed the Comprehensive Drug Abuse Prevention and Control Act in 1970.[18]  The act classified marijuana as a Schedule 1 drug, defined as a substance with “with no currently accepted medical use and a high potential for abuse” and instituted a federal prohibition on growing, possessing, selling, or using, marijuana for any purpose at a federal level.[19]  In spite of the 1970 Comprehensive Drug Abuse Prevention and Control Act’s total prohibition of marijuana, since 1996 there has been an increasing trend toward states legalizing first the medical use, and then recreational use of marijuana within their jurisdictions.[20]

In November 2016, California legalized recreational use of marijuana for adults over the age of twenty one with the passage of the Adult Use of Marijuana Act, commonly known as Prop 64.[21]  While Prop 64 included new environmental regulations aimed at stopping the environmental damage done by marijuana farmers and taxes meant to help restore the damage already done, it is unclear whether these laws will be enough to prevent marijuana farmers from using enough illegal water to hang the state out to dry along with their crop.  Marijuana farmers may continue to illegally divert water to support their endeavors due to a desire to maximize their profit margins and the very real challenges they face when trying to comply with water use and other environmental regulations, unless they are sufficiently encouraged to comply with those regulations.  It is up to the state of California to create the incentives marijuana farmers require before it is too late.

———

[1] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Alastair Bland, How Changing Marijuana Laws May Affect California’s Water and Wildlife, Water Deeply, March 2017, https://www.newsdeeply.com/water/articles/2017/03/22/how-changing-marijuana-laws-may-affect-californias-water-and-wildlife.

[2] Adult Use of Marijuana Act 2016, SB 94 (2017) and California Water Resources Control Board, Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation, (2017) https://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2017/final_cannabis_policy_with_att_a.pdf.

[3] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016

[4] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016

[5] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374.

[6] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and US Department of Justice National Drug Intelligence Center, Domestic Cannabis Cultivation Assessment 2007, 7, (Feb. 2007)  https://www.justice.gov/archive/ndic/pubs22/22486/22486p.pdf.

[7] California Water Resources Control Board, Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation, 10, (2017) https://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2017/final_cannabis_policy_with_att_a.pdf and Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374.

[8]Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374.

[9] Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[10] Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[11] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[12] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[13] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[14] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[15] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[16] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[17] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[18] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 513, 91st Cong. (1970).

[19] Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 513, 91st Cong. (1970) and Drug Enforcement Agency, Section on Drug Information, Drug Scheduling, https://www.dea.gov/druginfo/ds.shtml (last visited October 27, 2017).

[20] Peter Hecht, California takes new approach on water regulation for pot farms, The Sacramento Bee, Aug. 29, 2015,

http://www.sacbee.com/news/state/california/water-and-drought/article32762289.html.

[21]A.B. 64, 2016-2017 Session, (CA 2016).

Skip to toolbar