“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.

California Wine and Climate Change:  An Interview with Enfield Co. Winemaker John Lockwood

California Wine and Climate Change: An Interview with Enfield Co. Winemaker John Lockwood

California Wine and Climate Change: An Interview with Enfield Co. Winemaker John Lockwood

By: Meredyth Merrow

  

The wine industry plays an important role in California’s culture and economy. As extreme weather continues to rock the nation, and temperatures continue to rise, the full extent of climate change’s impact on California wineries remains to be seen. I asked John Lockwood of Enfield Wine Co. for his personal experiences combating climate change on his California winery. Here are his responses:

 Tell me a little about yourself and Enfield Wine Company. Where are your vineyards located? How long have you been growing wine in California?

I have been in the California wine industry and involved in farming since 2004. I have worked for several well-known California Wineries including Littorai & Failla where I was the vineyard manager. Enfield Wine Co. began as a side project in 2010 making small production, fresh, natural, elegant wines that were in contrast to the high alcohol “fruit bomb” style that was popular in California at the time. In 2014, after receiving great press and seeing great response in the market I decided to grow Enfield into a full-time business. I currently farm a vineyard in Napa and purchase grapes from vineyards in Sonoma, the Sierra Foothills, and Chalone in Monterrey County.

As a winemaker, how obvious is climate change’s impact on your operations? What kind of changes have you noticed in weather/soil stability over your time in California? 

 Extremely obvious – I check the weather every day in multiple places and my entire year is driven by the climate. Certainly, last summer was the hottest I have experienced since living in CA and we had 2 of the hottest days ever on record in Napa and the hottest day in the history of San Francisco. Since 2011, which was quite cool, every summer has been on the scale from “above average temperature” to “extremely warm”.

What, if anything, have you had to do to counter-act those changes?

The most obvious effect is on the timing of the growing season and harvest. 2013, 2014, and 2015 were each, in succession, the earliest harvest picking dates in my career and for most everyone else I know as well. Grapes were picked anywhere from 2 – 4 weeks earlier on the calendar than in an average year.

Another impact, that we are just beginning to see, is which grape variety is planted where. I make a Cabernet Sauvignon from a vineyard on the Sonoma Coast – an area more known for Pinot Noir because of its cooler climate. I joke that this is my hedge against Global Warming, but the truth is that at this point I believe this site produces better wine as Cabernet then Pinot.

Have you been impacted financially by California’s changing weather?

The drought certainly had an effect lowering grape yields, which raised the price of grapes and hence wines produced. Modern farming techniques have allowed a fair amount of flexibility and kept quality generally high, but if the warming trend continues we will see many people having to replant their vineyards to different grapes – and eventually we will see a decrease in quality in wines such as Pinot Noir that cannot handle heat. Pinot Noir is probably the grape most potentially harmed by this warming trend, and it is a major economic driver in the CA wine industry.

This past year, we experienced record-high temperatures and an excess of rain. How do these extreme weather patterns disrupt wine production?

It definitely made for extremely difficult and expensive farming. Extra manual labor was required as grape vine canopies were extremely vigorous, while at the same time disease pressure was very high from the heat and humidity. Either additional sprays were necessary or loss of crop to mildew and rot.

Due to warming temperatures in California, it stands to reason that certain wine varieties will no longer be the same. How does this affect your marketing of certain wine varieties?

As I mentioned above, modern farming techniques such as irrigation and canopy management do allow a certain amount of flexibility, however they all add cost and there is a limit to their effect. Cooler climate varieties will get pushed out of warmer growing areas – Pinot Noir most prominently, but also Chardonnay and to a lesser extent Sauvignon Blanc and Cabernet Sauvignon. I won’t say it has directed my marketing as of yet – other than focusing on cooler climate areas for sourcing wine grapes, but I do expect we will see a dramatic change in what is planted where over the next 20 years. We are seeing this on a small scale now, with grapes like Tempranillo, Mourvèdre, Carignan and others starting to become more fashionable. But I expect this to accelerate.

Grape vines can physically grow in warmer conditions, but it becomes increasingly difficult to produce high quality wine. If the warming trend continues, regions in CA that are already warmer may become only suitable for bulk wine production, and cooler climate areas may begin to function more like warm climate areas and we will see a steep decline in either the planting of cooler climate varietals, or the quality.

Is there anything else you’ve noticed on your vineyards that might be relevant/useful for those that want to get an idea of how great an impact climate change has on California wineries?

  It’s a big issue that the industry has been able to mostly handle up to this point, with surprising finesse. The quality of wine made over the past 5 years including 2017 has been very high. There is a breaking point however. It is the new normal for me to begin picking grapes in August instead of September. That can’t get bumped up much earlier without having real quality effects. I do think among the younger folks in the industry we are starting to see the change more dramatically. No one I know under 40 is banking on the future of Pinot in California. It will hopefully remain viable in small pockets, but as mass production wine it seems unlikely. I think we will continue to see more focus on Southern European Varietals – and we will see more grapes planted in areas that were once considered too cool for them – such as Cabernet on the Sonoma Coast.

Administrative Law Acts as a Wall to Trump Administration’s Rollback of Obama-Era Environmental Regulations.

Administrative Law Acts as a Wall to Trump Administration’s Rollback of Obama-Era Environmental Regulations.

 By: Anonymous

Since the early days of his campaign, President Trump has promised to rollback Obama-era environmental regulations,[1] and the strides made by President Obama in addressing climate change. Trump’s main soundbite was how “stupid” and “job killing” the Clean Power Plan is, and how he would bring back coal mining jobs.[2] In March, Trump signed an executive order that called on Secretary Scott Pruitt of the Environmental Protection Agency (EPA) to take steps to dismantle the plan.[3] However, the rapid-fire push by the Trump administration to wipe out significant chunks of the Clean Power Plan is running into a brick wall.[4] That brick wall? Administrative law. The EPA has broad discretion to reconsider a regulation at any time, however, to do so, they must comply with the Administrative Procedure Act (APA), including its requirement for “notice and comment.”[5] Under the APA, which governs most federal regulations, agencies must follow specific procedures for changing a rule.[6] Since the Clean Power Plan is a regulation that underwent notice and comment rulemaking, the EPA has to follow the same rule-making system used to create it in order to repeal it.[7] “Any agency’s proposed rulemaking must [be] open up public comments, receive comments and evidence, then you have to justify the decision.”[8] This public comment period typically takes time, and the EPA must consider and respond to all the public comments on the proposed rule and develop a record that shows they thoughtfully considered each.[9] If the Trump administration attempts to skirt these procedural rules in revising or dismantling the Clean Power Plan, court action is inevitable.[10]

Adding to the wall, the United States Supreme Court held in FCC v. Fox[11] that if an agency wants to change a regulation already promulgated, it must defend the new rule the way it would the original rule, and defend the change as non-arbitrary.[12] The courts will invalidate a rule change that, in its substance, appears arbitrary.[13] Because the Obama Administration gathered an immense amount of scientific data to support the promulgation of the Clean Power Plan, the Trump administration cannot simply ignore the science and established administrative record in their revision of the plan, or else the new revision may be struck down as arbitrary.[14]

Finally, in adding more bricks the administrative law wall, the Trump administration may have trouble in creating a new regulation without actually acknowledging that greenhouse gasses endanger the public health and welfare.[15] Under a landmark EPA decision in 2009, known as the endangerment finding, the EPA is required to regulate greenhouse gases.[16] Because of the endangerment finding, if the Trump Administration were to promulgate a revised regulation, it would effectively accept that the federal government has a role in addressing the reduction of greenhouse gases.[17]

Because of the brick wall that is administrative law, drawn-out court battles are inevitable and it could prevent the Trump administration from rolling-back any Obama-era environmental regulations before the 2020 election.[18] Good looking out, administrative law.

[1] Lisa Friedman, Trump Takes a First Step Toward Scrapping Obama’s Global Warming Policy, N.Y. Times (Oct. 4, 2017), https://www.nytimes.com/2017/10/04/climate/trump-climate-change.html?action=click&contentCollection=Climate&module=RelatedCoverage&region=Marginalia&pgtype=article.

[2] What is the Clean Power Plan, and How Can Trump Recall It?, N.Y. Times (Oct. 10, 2017), https://www.nytimes.com/2017/10/10/climate/epa-clean-power-plan.html.

[3] Id.

[4] Eric Lipton, Courts Thwart Administration’s Effort to Rescind Obama-Era Environmental Regulations, N.Y. Times (Oct. 6, 2017), https://www.nytimes.com/2017/10/06/climate/trump-administration-environmental-regulations.html.

[5] Id.

[6] John McQuaid, Make America Wait Again: Trump Tries to Delay Regulations out of Existence, Scientific American (July 24, 2017), https://www.scientificamerican.com/article/make-america-wait-again-trump-tries-to-delay-regulations-out-of-existence/.

[7] What is the Clean Power Plan, N.Y. Times, supra note 2.

[8] McQuaid, supra note 6 (quoting Robert Routh, Attorney, Clean Air Council).

[9] Brad Plumer, If Trump Wants to Dismantle Obama’s EPA Rules, Here are all the Obstacles He’ll Face, Vox (Jan. 18, 2017), https://www.vox.com/energy-and-environment/2016/12/7/13855470/donald-trump-epa-climate-regulations.

[10] Id.

[11] FCC v. Fox TV Stations, Inc., 556 U.S. 502 (2009).

[12] Plumer, supra note 6.

[13] Id.

[14] Id.

[15] Id.

[16] Friedman, supra note 1.

[17] Id.

[18] What is the Clean Power Plan, N.Y. Times, supra note 2.

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