CEQA—Admirable Goals, Bad Reputation

By: Caroline Lavenue

04/12/2018

I.   CEQA—Admirable Goals, Bad Reputation

It is no surprise that the people most calling for CEQA reform are the developers, contractors, and those whose goals are impeded by the complex CEQA process. CEQA, like any law, is in place to dissuade potentially illegal action. It is procedurally complex, demanding time and labor in order to navigate. But is the fact that it is costly or time-intensive a reason for the law to be dropped? Is the fact that potentially fraudulent companies dislike the Sarbanes-Oxley Act because of the added cost of auditors a reason to reduce compliance measures?

CEQA holds developers accountable for their actions which, whether directly or indirectly, affect us all. It has objectively good goals; it was passed in an effort to balance policy considerations. It is a preventative, information-forcing statute that informs decision makers and the public about the potentially significant environmental effects of proposed projects before those projects are approved. For this reason, it is nearly inarguably and substantively good. Ideally, one should be able to refer to CEQA as a consistent guide to environmentally-conscious development because CEQA’s inherent goal of reducing impacts is beneficial.

Procedurally, however, it is problematic. CEQA procedural requirements come from three sources: implementing regulations, case law, and statutes. All three sources have begun to recognize the need for procedural change. Some examples are the ability of the Office of Planning Resources (OPR) to change guidelines because of Court of Appeal decisions, very short statutes of limitations (either 180 or 30 days) to file suit, the lack-of-compliance-requirements for ministerial approval, and–the ultimate white flag–approval despite environmental impacts by adopting a statement of overriding consideration.

II.  Areas for Improvement

While steps have been taken to trim the headache that is CEQA, more can be done. All three procedural sources have areas for improvement.

A.  Too Many Accountability Parties and Varying Exemptions

The CEQA process requires three distinct agencies with different roles: a lead agency, a responsible agency, and a trustee agency. While this serves to enhance accountability, it also creates regulatory burdens, for each agency has different roles and responsibilities.

The Lead Agency is the public agency that has the primary responsibility for carrying out or approving a project.[1] A Responsible Agency is a public agency with some discretionary authority over the project.[2] A Trustee Agency is a State agency having jurisdiction over natural resources for the public trust.[3] The Trustee Agency and the Responsible Agency roles should be collapsed into one. This will diminish confusion—communication between agencies requires time and resources–and reduce barriers to entry for proposing, lead agencies.

An added complication comes in the form of various exemptions. In regard to agencies, there are categorical exemptions prescribed by the Secretary of Resources.[4] Further complicating the matter is that there are exceptions to the exemptions. These categorical exemptions are in addition to statutory exemptions set by the Legislature. These layers of exemptions lead to variability and confusion. For this reason, there should be one list of statutory exemptions without waverability (except in extreme circumstances), and they should all be held to the same procedural requirements. In the case of a necessary exception to an exemption, the Legislature should provide courts with a concrete protocol to decide the matter.

B.  Inconsistent Court Decisions and Two Standards of Review

Courts’ decisions are inconsistent, and there is widespread abuse of CEQA lawsuits for non-environmental purposes.[5] Courts should implement a uniform, high-threshold standard of review that would emphasize the Trustee/Regulatory Agency’s (see above) ultimate substantive authority; thus, the substantial evidence standard. Courts should only use CEQA as a way to achieve the requirements stated in statutes and guidelines. This would substantially diminish variability in the court system.

As a preventative measure, courts should impose strict sanctions on plaintiffs for bringing frivolous NIMBY lawsuits. The positive results of this will be seen as sanctions are implemented.

C.  State-Wide Regulations from the Legislature

The above-mentioned areas for improvement can be solved with increased legislation surrounding CEQA. The Legislature must carve out more exceptions to CEQA to accommodate the categorical exemptions provided by the Agencies (see above).[6] Other suggestions include: different punishment for procedural versus substantive mishap delays; a pro/con net point valuation for projects that would result in a zero-sum game overall; different requirements for entrepreneurs versus giant corporations (based on size and/or anticipated profits); and assumption of property right guarantee before project commencement. There should be tiers of CEQA compliance and exceptions with information about potential environmental degradation being the priority.

III.  Conclusion

CEQA was enacted to protect the environment and ensure that voters are given all necessary information when casting a vote. In this way, the substantive goals and concept are simple; but bureaucracy has made the procedural process exceedingly difficult. There is work that needs to be done, but an efficient CEQA process is within sights if the legislature steps up and creates the necessary changes. All in all, California would rather have than have not, for the goals of CEQA are exceedingly important.

 

 

[1] CEQA Guidelines 15367.

[2] CEQA Guidelines 15051.

[3] CEQA Guidelines 15386.

[4] Pub. Res. Code § 21084(a).

[5] Jennifer Hernandez, California Environmental Quality Act Lawsuits and California’s Housing Crisis, Hastings Environmental Law Journal 24 (2017).

[6] CEQA Guidelines 15260-15285.

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).

Cowboy Culture & Sagebrush Rebellions: Who Should Regulate the Wild Wild West?

Cowboy Culture & Sagebrush Rebellions: Who Should Regulate the Wild Wild West?

By: Lauren Marshall

The mythos of the American cowboy, homesteading, tending to the land, and early mornings running cattle, isn’t quite as bygone as the lawless days of the wild wild west. Though a rare breed in our rapidly urbanizing culture, the American cowboy is alive and well in some small pockets of Bureau of Land Management (“BLM”) lands. Cowboy mythology as a political movement most often plays out in conflicts about grazing rights, conflicts that have now been colloquially referred to as Sagebrush Rebellions.

The pervasiveness of the cowboy mythos, as it pertains to land use regulation, is best understood through the lens of the philosophies that motivate it. Cowboy iconography promotes the idea that ranches are the best stewards of the land, taking good care of and perhaps even improving the quality of public lands.[1] It is the belief that grazing is integral to the economy of the west, and without it the west would be valuable to development and urban sprawl.[2] And perhaps the most romanticized and disillusioned component, the idea that cowboys embody everything that is great about America: hard-work, self-reliance, chivalry, and courage.[3]

None of these mythologies are in and of themselves a threat to public lands. However, the political movements they have inspired have led to violence and criminal activity. The west has now weathered three distinct Sagebrush Rebellions. These movements are motivated by similar philosophies: the belief that private or local control of western lands is preferable to federal control. Some rebels are emboldened by god himself[4] and others the belief that federal regulation of these lands is unconstitutional and contrary to framer intent.[5]

Most actions taken by Sagebrush Rebels have focused on attempts to pass statutes that transfer ownership of federal lands to states and localities.[6] These attempts have been generally unsuccessful.[7] However, these movements have also resulted in dangerous criminal activity that threatens public lands that belong to the nation as a whole. Criminal behavior has included bomb attacks on U.S. Forest Service Employees[8], bulldozing a U.S. Forest Service Road[9], and culminating in an armed standoff between the Bundy family and federal agents, resulting in the death of one activist.[10]

Though perhaps questionable in their motivations and methodologies, these political movements do pose important questions about how we have decided to regulate public lands. Would private parties who live on, care deeply for, and intimately depend on the health of the land do a better job caring for it? Can an “absentee landlord”[11] like the BLM or the U.S. Forest Service appropriately regulate a west he’s never seen or experienced? Perhaps there is a place for cowboys in modern culture.

[1] Ann Brower, John Page, Amanda Kennedy & Paul Martin, The cowboy, the southern man, and the man from the snowy river: the symbolic politics of property in Australia, the United States, and New Zealand, 21 Geo. Int’l Envtl. L. Rev. 455, 466 (2009).

[2] Id.

[3] Id.

[4] Matt Canham, Mormon Cliven Bundy says God showed him path to avoid civil war, The Salt Lake Tribune, Aug. 8, 2014

[5][5] Jaime Fuller, The long fight between the Bundys and the federal government, from 1989 to today, The Washington Post, Jan. 4, 2016.

[6] Johnathan Thompson, The first Sagebrush Rebellion: what sparked it and how it ended, High Country News (Jan. 14, 2016)

[7]Id.

[8] Timothy Egan, Court puts down rebellion over control of federal land, New York Times (Mar. 16, 1996)

[9] Id.

[10] Rick Bass, Public lands and the Bundy family’s lost cause, Chicago Tribune (May 12, 2017)

[11] William P. Pendley, The Federal Government Should Follow the Constitution and Sell Its Western Lands, National review, Jan. 19, 2016,

“Ag-Gag” Laws

“Ag-Gag” Laws

By: Kellen Miller

This past September the United States Court of Appeals for the 10th Circuit handed down a decision which has the potential to mark a shift in the trajectory of “ag-gag” laws. The term “ag-gag,” which was made popular in 2011 in an opinion piece by food journalist and former columnist for the New York Times Mark Bittman, originally referred specifically to anti-whistleblowing legislation which suppressed the work of photographers and videographers seeking to expose cruel and inhumane treatment of animals by factory farmers.[1] The American Society for the Prevention of Cruelty to Animals (ASPCA) submits that the animal-agriculture industry has been behind the introduction of “ag-gag” bills in more than half of all state legislatures across the U.S. and that eight states currently have some form of “ag-gag” on the books.[2]

Over time, however, the use of the term “ag-gag” has expanded. While many ag-gag laws make it illegal to enter factory farms for the purpose of collecting data and documenting legal violations, in other states the law is not limited simply to farms. There, the laws criminalize the collection and gathering of any data regarding environmental conditions from public lands, even if one accidentally touches private land on the way to that public land.[3] To ecologists and other life scientists, this data is invaluable. It reduces procedural uncertainty by tracking, monitoring, and evaluating the effectiveness of environmental management choices.[4] It can also pinpoint new environmental problems that require the attention of regulators, creating political or legal pressure for the implementation of new standards.[5]

The latest and perhaps most potent illustration of this conflict emerged recently in Wyoming in case entitled Western Watersheds Project v. Michael. Backed by Wyoming livestock interests, the Wyoming legislature adopted what are now known as Data Censorship Statutes (basically “ag-gag” laws), which, according to Western Watersheds Project, an environmental watchdog organization and lead plaintiff in the case, was done specifically to deter and punish persons who gather such environmental data without express authorization.[6] In reality, these laws–even after certain revisions–became so broad that the practical effect was, for example, to criminalize the behavior of recreationists taking pictures on public lands if they had crossed private lands to get there.[7]

In response, Western Watersheds, Natural Resources Defense Council, the National Press Photographers Association, and others joined together to challenge the constitutionality of the revised Wyoming Data Censorship Statutes, claiming First Amendment violations.[8]

At trial, defendants moved to dismiss on the basis that plaintiffs failed to state a claim that data collection[9] is an activity protected by the First Amendment.[10] The United States District Court for the District of Wyoming agreed, granting defendants’ motion to dismiss and concluding that even the revised versions of the statutes did not implicate protected speech because no constitutional right exists that would allow plaintiffs or other similarly situated parties to trespass upon private property to collect resource data.[11] Put simply, the District Court found that plaintiffs could not be granted free speech protections on public lands if they first illegally trespassed onto private land in order to reach that public land.

On appeal, however, the 10th Circuit reversed and remanded, holding that the revised statutes do apply specifically to the creation of speech because the creation and dissemination of information–here, collecting and circulating resource data–constitutes speech within the meaning of the First Amendment.[12] Jonathan Ratner, the lead attorney for Western Watersheds Project, hailed the ruling as “a victory for citizen science and for conservation groups who enforce environmental protection standards when agencies turn a blind eye, and a resounding defeat for the State of Wyoming’s efforts to shield special interests from public scrutiny, oversight, and accountability.”[13]

While it remains up to the District Court to determine the fate of Wyoming’s Data Censorship Statutes on remand, Western Watershed appears to illustrate that opponents can utilize the constitution–specifically the First Amendment–as a legal basis to fight “ag-gag” legislation in court. In the future, it seems likely that these disputes will be framed in the same free speech versus right to privacy debate typified by Western Watershed. If other courts calculate, as the 10th Circuit did, that plaintiffs’ first amendment rights outweigh defendants’ rights to exclude, it could spell trouble for “ag-gag” backers, possibly opening the door for the stripping away and repeal of “ag-gag” legislation.

The fun, it seems, has only just begun!

 

[1] Mark Bittman, Who Protects the Animals?, N.Y. Times (Apr. 26, 2011), https://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/.

[2] What is Ag-Gag Legislation? American Society for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-protection/public-policy/what-ag-gag-legislation#Ag-Gag%20by%20State.

[3] Wyoming Data Censorship Laws Entitled to First Amendment Review, National Press Photographers Association, https://nppa.org/news/wyoming-data-censorship-laws-entitled-review.

[4] Eric Biber, The Challenge of Collecting and Using Environmental Monitoring Data, 18 Ecology and Society, 68 (2013), https://www.ecologyandsociety.org/vol18/iss4/art68/.

[5] Id.

[6] Complaint for Declaratory and Injunctive Relief, W. Watersheds Project v. Michael, 196 F. Supp. 3d 1231 (D. Wyo. 2106) (No. 15-Dv-169).

[7] Erik Molvar, Court Smacks Down Wyoming Efforts to Suppress Science, The Hill (Sept. 9, 2017) http://thehill.com/blogs/pundits-blog/energy-environment/349863-court-smacks-down-wyoming-efforts-to-suppress-science.

[8] Complaint for Declaratory and Injunctive Relief, W. Watersheds Project v. Michael, 196 F. Supp. 3d 1231 (D. Wyo. 2106) (No. 15-Dv-169).

[9] Under the Wyoming statute, the term “collect” means: (1) “to take a sample of material” or “acquire, gather, photograph or otherwise preserve information in any form”; and (2) “recording . . . a legal description or coordinates of the location of the collection.” See Wyoming Statutes Title 6 §§ 6-3-414(e)(i); 40-27-101(h)(i).

[10] W. Watersheds Project v. Michael, 196 F. Supp. 3d 1231 (D. Wyo. 2106).

[11] W. Watersheds Project v. Michael, No. 16-8083 (10th Cir., entered September 7, 2017)

[12] Victoria Prieskop, Tenth Circuit Won’t Give Wyoming’s Ag-Gag Law a Free Pass, Courthouse News Service, https://www.courthousenews.com/tenth-circuit-wont-give-wyomings-ag-gag-law-free-pass/.

[13] Id.

“Clean Meat” Soon to be on the Table

“Clean Meat” Soon to be on the Table

By: Axl Kaminski

Is this the answer for environmentally concerned citizens, not yet ready to give up their carnivorous ways for a more eco-friendly, plant-based diet? The term “clean meat” can mean a variety of products which may be synthesized from pea-protein-derived heme (the non-protein component of hemoglobin) or grown from the cultured cells of live animals.[1] Environmentalist and animal welfare groups are touting clean meat as the next great technological innovation, however, consumer bias for conventional meat will be challenging to overcome.

In the U.S. alone, 10 billion land animals are slaughtered each year,[2] and globally 30% of the earth’s surface is devoted to raising livestock.[3] The size and scale of modern factory farming is a far cry from the rural pastoral family farm, but then again, so is meat grown in a Petri dish. The effects of the factory farming system currently in place are felt globally, but the clean meat movement’s epicenter is local, with most of the research undertaken by Silicon Valley-funded scientists.[4] Cost is key in the clean meat industry. Clean meat endeavors are competing with centuries of technological developments that have contributed to the industrialization and mechanization of the modern factory farm.

The challenges are not only monetary for the clean meat industry; the preferences of the American palate also have to be challenged. The idea of meat grown in a lab is not exactly appetizing to most Americans, and will prove to be one of the biggest obstacles to the industry. A 2014 Pew research study confirmed this sentiment, out of 1,000 people asked if they would eat meat “grown in a lab”, 80% responded no.[5] However, this has not stopped billionaires like Bill Gates and Richard Branson from supporting the industry.[6] Demand for meat is steadily rising alongside the global population, all while the finite amount of land suitable for raising animals declines. With an expected population growth of 9 billion by 2050, meeting the population’s demand for meat will require innovation.[7]

A vegetarian diet requires only 35% as much water and 40% as much energy as that of a meat based diet. The problem is that vegetarians only represent a small fraction of the population. Clean meat could help bridge the gap for the environmentally conscientious carnivore. Future clean meat eaters could tout similar number because much of the waste associated with conventionally produced meat is cause by inefficiencies in the factory farming industry.[8] Clean eating has the potential to make a huge difference in the amount of pollution and waste produced by factory farming operations.

Uma Valeti, Co-founder and CEO of Memphis Meats (a leader in the clean meat market), said in an interview with Modernfarmer.com that his company’s methods of producing animal protein would require less than a tenth of the land and water, and half of the energy needed for conventionally produced meat.[9] Although, the cost of producing clean meat is prohibitively high at this time, Valeti believes that in four-years clean meat production will be cost effective enough to bring the product to market, and that it will eventually be cheaper to produce than conventional meat.

With technology developing so rapidly and the big financiers finally behind clean meat, it won’t be long before meat grown in a lab is on the shelf at your local supermarket. Therefore, it is critical that the clean meat industry provide consumer education to expand awareness and demystify clean meat. This is a product that could truly revolutionize the way we eat and help save our planet—one bite at a time.

 

[1] James McWilliams, Meat, Without All of the Blood and Guts, Pacific Standard (Nov. 6 2017), https://psmag.com/environment/meat-without-all-of-the-blood-and-guts.

[2] Id.

[3] Olive Heffernan, A Meaty Issue, 544 Nature 18 (2017).

[4] McWilliams, see supra note 1.

[5] Aaron Smith, U.S. views of Technology and the Future, Science in the Next 50 Years, Pew Research Center (April 17 2014), http://www.pewinternet.org/2014/04/17/us-views-of-technology-and-the-future/.

[6] Dave Sjeklocha, Clean Meat? It’s not that simple, Beef Magazine (Oct. 30 2017), http://www.beefmagazine.com/beef-quality/clean-meat-its-not-simple.

[7] Patrick Gerland, et al., World Population Stabilization Unlikely This Century, 346 Science 234 (2014).

[8] Harold Marlow, Diet and the Environment: Does What You Eat Matter, 89 Am. J. Clin. Nutr. 1699 (2009).

[9] Andrew Amelinckx, Would You Eat Chicken Grown in a Lab?, Modern Farmer (Mar. 21 2017), https://modernfarmer.com/2017/03/eat-chicken-grown-lab/.

 

Climate Change Refugees: Regional Agreements Can Better Fill the Gap in Legal Protection

Climate Change Refugees: Regional Agreements Can Better Fill the Gap in Legal Protection

By: Kelsey Moe

Current estimates suggest that climate change could cause over 200 million people to be displaced by 2050.[1] In a report introduced by the UNHCR, it found that “climate change exposes people to increased vulnerability and creates impetus in driving them into areas of conflict and ultimately across borders into exile.”[2] Climate change displacement is a reality, and it will cause an increased flow of migrants, due to its accelerated affects.[3] The effects of climate change are already contributing to migration and the displacement of people.[4] Climate change effects can be linked to impacts on agriculture, the economy, food shortages, extreme weather events, and access to water.[5] Parts of the world will no longer be habitable, able to support agriculture, or produce clean water, and people will be forced to relocate in order to survive.

This is a major problem primarily because of the lack of legal framework and protection for individuals vulnerable to climate change displacement. The 1951 Refugee Convention, and 1967 Protocol defines a refugee as, “person who is outside his or her country of nationality or habitual residence; has a well-founded fear of persecution because of his or her race, religion, nationality, or membership in a particular social group or political opinion; and is unable or unwilling to avail himself or herself of the protection of that country, or to return there, for fear of persecution.”[6] The 1951 Convention definition does not cover individuals displaced by climate change, which leaves a gap in the legal protection for climate change refugees.[7]

Many solutions have been suggested to address the lack of protection for climate change refugees. One solution is the development of a new international treaty, specifically to address climate refugees. In the Harvard Environmental Law Review, authors Tyler Giannini and Bonnie Docherty propose the idea of a new independent international convention.[8] The authors believe current legal instruments are unable to protect climate change refugees, and that a new international treaty is the only adequate solution.[9] Another argument is the proposal for a regional treaty to protect climate change refugees.[10] The author suggests the development of a regional treaty over a new international treaty, because a new global agreement would be problematic.[11] Williams concludes that efforts could be better coordinated through regional agreements under the international umbrella of the Kyoto Protocol and the UNFCCC.[12]

Current international and domestic laws are unlikely to provide the needed legal protection for climate change refugees. Regional agreements can better fill the gap in legal protection for climate refugees because of similar cultural, geographical, and family ties within regions, adaptation capabilities of countries, and the likelihood of internal and migration to nearby countries.[13] Cultural norms vary widely across countries, regions, and social groups; and regional agreements help countries communicate how they want to be perceived both in terms of climate change and with migration and displacement. International movement in the context of climate change is “conceived of differently because of particular geographical, demographic, cultural, and political circumstances, and it may be that localized or regional responses are better able to respond to their needs.”[14] Ultimately, regional agreements focus attention on culturally-sensitive outcomes for people in particular contexts, and respond to the nature, timing and location of predicted movement within, from, and to particular countries, and their views on how they want to be perceived.[15]

Regional agreements are also better for adaptation because they can take into account commonalties between countries, and their specific capabilities and priorities regionally. Regional agreements can appeal to both host and home countries, because they consider the different aspects of the affected communities, and how and when people should migrate.[16] Certain countries may wish to remain in their home countries as long as possible, while others are concerned with immediate relocation, or gradual migration over time. Countries have different priorities for climate change and displacement. This is the case in Tuvalu and Kiribati.[17] Kiribati is interested in including an international agreement for relocation, while Tuvalu is against it, because of their fear of the power of industrialized nations to force relocation.[18]

For example, the country of Kiribati is concerned with unemployment and sanitation issues.[19] The President of Kiribati is responding to climate change displacement by prioritizing options for labor migration in New Zealand and Australia.[20] Tuvalu is concerned with unemployment as well, but is also dealing with pollution and a lack of resources.[21] When formulating policy on climate change and displacement, different relocation priorities may depend on these issues, and concerns like the right to work, access to public services, and the right to citizenship or territory in host countries. Migration will also depend on unknown factors such as when people are forced to migrate, if migration is an accepted adaptation strategy, and other types of assistance available in particular communities. Regional agreements are better for adaptation because they can take into account these different capabilities and priorities.

Regional agreements are also preferred because of the likelihood of internal migration, and migration to neighboring countries. International treaties may be inappropriate because current evidence shows that most movement from climate change will be internal and gradual.[22] The basis of an international treaty is international movement and regional responses are a better platform for more community specific responses.[23] They are also preferable because of the likelihood of family or friends living in nearby countries within the region. Regional agreements also benefit from proximity, and the likelihood of shared interests regionally, because the majority of migration will be internal or to nearby countries.

Lastly, regional agreements are more effective because of their ability to influence behavior and ensure compliance differently than international systems.[24] Regional agreements benefit from the proximity of nearby countries, and can complement existing international frameworks. They are also preferable for enforcement because they resonate with local conditions better than a global system can.[25] For example, a more judicial approach to enforcement may be appropriate in some regions, while a non-judicial approach like commissions or peer review may be more appropriate in others. In general, regional agreements are a better platform for listening to the concerns of different countries, and formulating solutions based on each country’s priorities.

[1] Oli Brown, Climate change and forced migration: Observations, projections and implications, Human Development Report Office, (2007).

[2] UN High Commissioner for Refugees (UNHCR), Climate Change, Vulnerability and Human Mobility: Perspectives of Refugees from the East and Horn of Africa, (June 2012), www. unhcr.org.

[3] UN High Commissioner for Refugees (UNHCR), Frequently asked questions on climate change and disaster displacement, (Nov. 2016), www.unhcr.org.

[4] UN High Commissioner for Refugees (UNHCR), Summary of Deliberations on Climate Change and Displacement, (Apr. 2011), www.unhcr.org.

[5] Id.

[6] UN General Assembly, Convention Relating to the Status of Refugees, (July 28, 1951), 189 U.N.T.S. 137., www.unhcr.org.

[7] Id.

[8] Tyler Giannini and Bonnie Docherty, Confronting a Rise Tide: A Proposal for a Convention of Climate Change Refugees, 33 Harv. Envtl. L. Rev. 349, (2009).

[9] Id.

[10] Angela Williams, Turning the Tide: Recognizing Climate Change Refugees in International Law, 30, Law Policy (2008).

[11] Id.

[12] Id.

[13] Jane McAdam, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer, 23 International Journal of Refugee Law No. 1 p. 2–27, (2011).

[14] Jane McAdam, Climate Change, Forced Migration, and International Law, Oxford University Press, (2012).

[15] Jane McAdam, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer, 23 International Journal of Refugee Law No. 1 p. 2–27, (2011).

[16] McAdam at 4.

[17] Jane McAdam and Maryanne Loughry, We Aren’t Refugees, (June 30, 2009).

[18] We Aren’t Refugees, (June 30, 2009).

[19] We Aren’t Refugees, (June 30, 2009).

[20] Id.

[21] Id.

[22] Jane McAdam, Swimming Against the Tide (2011).

[23] Jane McAdam, Swimming Against the Tide, at 8, (2011).

[24] Christof Heyns, David Padilla, and Leo Zwaak, Schematic Comparison of Regional Human Rights Systems: an update, Sur, Rev. int. direitos human. vol.3 no.4 São Paulo, (June 2006).

[25] Id.

Investor-Owned Utilities Strategic Investments to Preempt Grid Defection and the “Utility Death Spiral”

Investor-Owned Utilities Strategic Investments to Preempt Grid Defection and the “Utility Death Spiral”

By Micaela Harms       

“Utility companies and policy makers must take the potential for grid defection seriously when evaluating energy supply strategies.”[1] Utility companies will face increased competition from off-the-grid systems as technological advancements and cost reductions make these systems ever more viable for households.[2]

In California, Southern California Edison (SCE) is trying to get ahead of the competition. The investor-owned utility recently pitched a roadmap for reducing greenhouse gas (GHG) emissions to California’s policymakers in an effort to align the state’s GHG emission reduction goals with a prosperous future for investor-owned utilities (IOU).[3] As the bulk of IOUs’ profits comes from investments in infrastructure, SCE’s suggestion to “electrify everything” could result in a windfall for IOUs that build out the power lines and other infrastructure required to support increased electricity demand from electrified cars and heating systems.[4] “The plan would be good for Edison’s bottom line, but it would also benefit California as a whole” as it would support the state’s mandate to reduce GHG emissions to 40% below 1990 levels by 2030.[5]

SCE’s proposal is not the utility’s first strategic action, as it is already investing millions ($22 million to be exact) building out electric vehicle charging infrastructure.[6] San Diego Gas and Electric (SDGE) and Pacific Gas and Electric (PGE)—California’s two other largest IOUs—are respectively investing $45 million and $130 million in electric vehicle charging infrastructure.[7] The chargers that SCE are building are host-owned, while SDGE chargers are utility-owned and PGE’s chargers are owned by a utility-private investor partnership.[8]

Yet, should utilities be able to build out the infrastructure required to support California’s GHG emissions reduction goals under their monopoly power?[9] How much of the requisite infrastructure should be privately owned versus publicly owned? And how much infrastructure is really necessary when grid defection via small-scale distributed energy resources (think solar panels and batteries) could potentially provide customers with lower cost and more reliable energy solutions?[10] Could the IOUs investment backfire, as they shift costs to consumers and inspire additional grid defection?

On the one hand, IOU infrastructure investments may hasten the decarbonization of the electricity and transportation sectors and help California meet its GHG reduction goals on time. On the other hand, these investments could reduce the incentive for others to innovate and they may spread costs of infrastructure among those who directly benefit and those who do not (i.e. someone who cannot afford an electric vehicle may pay to build the charging infrastructure). Further, because IOUs make money for their shareholders through infrastructure investments, they may bake additional and unnecessary infrastructure expenditures into their proposals to policymakers and avoid mention of potentially more cost effective solutions.[11]

 

 

[1] Abhilash Kantamneni, et al., Emerging Economic Viability of Grid Defection in a Northern Climate Using Solar Hybrid Systems, 2016.

[2] Id.

[3] Southern California Edison, The Clean Power and Electrification Pathway, Nov. 2017.

[4] Id.; Sammy Roth, SoCal Edison’s plan to ‘electrify everything’ could help the climate – and SCE’s profits, Nov. 16, 2017.

[5] Id.

[6] California Energy Commission, Zero-Emission Vehicles and Infrastructure, July 5, 2017.

[7] Id.

[8] Travis Hoium, Investing in EV Infrastructure: Where the Money is Going, Mar. 15, 2017.

[9] Id.

[10] Sam Mintz, Could Rick Perry’s grid plan spur ‘utility death spiral’?, Nov. 17, 2017.

[11] Sammy Roth, SoCal Edison’s plan to ‘electrify everything’ could help the climate – and SCE’s profits, Nov. 16, 2017.

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