Golden Gate University Environmental Law Journal
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Open Access journal
ISSN (Print) 2156-4817
Published by Golden Gate University School of Law [3 journals]
- The Damming of Nature: How China is Expanding Its Dam Infrastructure and
Potential Negative Downstream Effects on Fisheries of the
Authors: Stephanie M. Smith
Abstract: In light of the critical need to shift from fossil fuels as the primary source of energy, China continues to plan expansive hydropower generation projects on the Yaluzangbu-Brahmaputra River, one of the few remaining clean and biologically diverse river basin ecosystems in China. In March 2011, the Chinese National People’s Congress approved the Twelfth Five-Year Plan (Plan) for national development with specific themes and targets within the economic and social arenas. The Plan has a specific focus on “higher quality growth,” which is defined in the Plan as addressing the issues of renewable energy and sustainability. Specifically, the Plan addresses issues of pollution, intensive energy use, and resource depletion, with a heightened focus on reducing energy use by decreasing the use of non-fossil fuels by 2020. The Plan targets seven industries that it intends to address or improve over the course of the Plan’s life. The Plan targets new energy industries first, and energy conservation and environmental protection second. The proposed new sources of energy in the Plan do not include hydropower, but they do include nuclear, wind, and solar.In opposition to the referenced sources of renewable and sustainable energy within the Plan, China’s Premier Li Keying announced that China would build more dams. This speech reinstated his commitment to unleashing the biggest dam building spree in history, with the intent to decrease fossil fuel consumption and carbon emissions. However, the use of dams does not simply offer an alternate source of energy for a country’s energy demands, but rather, the destruction of entire downstream river ecosystems. This destruction includes erosion of river embankments and floor, destruction of sensitive fish populations, extinction and ecosystem collapse, and obliteration of entire delta regions. Additionally, this destruction leads to displacement of indigenous human populations that represent the beginning of humanity and life that has relied on rivers since the beginning of time.
PubDate: Tue, 16 Aug 2016 15:38:11 PDT
- Reducing Overdraft and Respecting Water Rights Under California's
2014 Sustainable Groundwater Management Act: A View From the Kern County
Authors: Ashley Mettler
Abstract: California groundwater is an invaluable drought reserve for agricultural farmers. With historically dry conditions affecting the annual water supply, precious groundwater has become one of the last water resources available to growers in the Central Valley. The devastating drought effects have necessitated the use of groundwater to help offset the surface water deprivation, and the increase in groundwater usage has become a source of growing conflict among water users and environmentalists across the state.In 2014, the California Legislature introduced the Sustainable Groundwater Management Act (SGMA), opening the door to a new era of water management and new challenges for California agriculture. Though the law holds great promise for managing future droughts and preserving the groundwater supply, the new policy lacks thoroughness and direction for many water users and overlying landowners. With the advancement of new monumental groundwater reform comes several much-anticipated hurdles, however, SGMA’s ambiguous language and arbitrary scope of authority will likely create more harm than good for agriculturally-rich areas such as Kern County.Part II of this Comment provides an overview of the various components contributing to California’s water crisis and illustrates the inherent flaws in today’s water management system. Part III highlights the common law water principles that are in conflict with SGMA, while summarizing California water law. Part IV argues that SGMA should not be enforced until it is reformed, because doing so would infringe California water rights and expose overlying water users to legal liability. Part V presents an economic analysis of the 2015 drought effects for California agriculture and forecasts the damaging impacts that SGMA’s water restrictions will have on the State’s economy and farming sector. Part VI concludes with a summary of how the Act can be revised and implemented in a way that is consistent with California’s traditional common law water principles.
PubDate: Tue, 16 Aug 2016 15:38:07 PDT
- Conflicting Theories at Play: Chemical Disclosure and Trade Secrets in the
New Federal Fracking Regulation
Authors: Melanie McCormick
Abstract: Currently, there is no federal law regulating fracking. Instead, fracking is only regulated under state law. Public disclosure requirements vary widely from state-to-state. Some states have no disclosure requirements at all. Of the states that do, most have included trade secret exception provisions allowing oil and gas companies to refuse to disclose the chemicals they use in fracking. More importantly, very few state laws that have trade secret exceptions also require that the company provide any substantiation that the trade secret is legitimate. Without some kind of uniform factual substantiation requirement, what is to keep oil and gas companies from abusing trade secret exceptions?A possible solution has emerged. In March of 2015, the Department of Interior’s Bureau of Land Management (BLM) released the first important federal rules governing fracking on federal and tribal lands. The law only affects approximately 100,000 oil and gas wells in the United States, but has already caused widespread concern among its opponents. Wyoming, Colorado, North Dakota, Utah, the Ute Indian Tribe, and two oil and gas industry organizations have filed claims for review of BLM’s rules in the U.S. District Court of Wyoming. The arguments that have transpired offer a clear perspective into the controversy surrounding chemical disclosure and trade secret exceptions.Through analysis, it is apparent that BLM’s new fracking rule should be uniformly adopted as a solution to the tension between disclosure requirements and trade secrets. Part I of this Note defines hydraulic fracturing and provides a history and background of the two conflicting theories: trade secrets and environmental “right-to-know” policies. Part II introduces the BLM’s new federal regulation and examines how it has addressed conflicts between trade secrets and chemical disclosure. Part III discusses the current problems with fracking regulations, and addresses how trade secrets and chemical disclosure play a part in its controversy and why BLM’s new regulation can be a solution. This Note concludes that BLM’s new regulation is a much needed and effective compromise between the conflicting theories of trade secrets and chemical disclosure.
PubDate: Tue, 16 Aug 2016 15:37:55 PDT
- Climate Resilience Metrics – Putting Them to Work in California
Authors: Alexandra R. Leumer
Abstract: Building on climate adaptation goals defined in climate policy, this paper identifies examples of performance-based metrics to measure and track the effectiveness of climate risk reduction and resilience actions in California in order to inform developing state policy and guidance on resilience metrics. After a brief review of California’s climate goals, a set of guiding principles are proposed for metric development. An overview of the current discourse on resiliency metrics follows and the paper concludes with a set of recommendations for the state as it moves forward in the development of metrics.
PubDate: Tue, 16 Aug 2016 15:37:50 PDT
- Ten Regulatory and Cultural Principles That Improve California's
Authors: Chris Shutes
Abstract: Forty-one of the past hundred years in California have been part of multi-year drought sequences. The 2012–2015 drought was one of the worst of the last hundred years, and there are increasing concerns that climate change will increase the frequency of drought in California. This article deals with ten regulatory and cultural principles developed in the last decade that are becoming embedded in drought planning in California.
PubDate: Tue, 16 Aug 2016 15:37:44 PDT
- Sweating the Small Stuff: Managing Fisheries and Fostering Marine
Ecosystem Resilience in the Face of Climate Change
Authors: Andrea Arnold Treece
Abstract: Since 2013, thousands of emaciated California sea lion pups have washed ashore along the United States West Coast (“U.S. West Coast” or “West Coast”), leading concerned scientists and members of the public to wonder what’s happening off our shores. In March 2016, researchers concluded that California sea lions have been suffering from mass malnutrition because their main food sources, sardine and anchovy, are scarce. Why are these fish so scarce? Scientists say that the combination of unusually warm ocean conditions and fishing for sardine and anchovy has depleted the food supply for these animals. And sea lions are simply the most visible victims. The health of the entire California Current Large Marine Ecosystem (CCE), the productive swath of the Pacific Ocean that runs from southern British Columbia south along the West Coast of the United States to Baja California, Mexico, is at stake.This article explores the fundamental changes in fishery management necessary to build the resilience of forage fish populations and the ecosystem as a whole in the face of climate change. After presenting an overview of the role and vulnerability of forage fish, the article describes the current management framework for forage species in the federal Coastal Pelagic Species fishery, the current status of those species, and management responses. We then present an overview of key MSA provisions and offer recommendations for using these provisions to align forage fishery management with biology and ecology of these species, including specific recommendations for protecting forage fish populations and dependent predators, focusing on anchovy as a current, important example of the changes needed to better ensure the sustainability of the CCE.
PubDate: Tue, 16 Aug 2016 15:37:40 PDT
- In This Edition
Authors: Paul Stanton Kibel et al.
Abstract: Over the past two decades, considerable attention has been given to the subject of climate mitigation, of the development of laws and policies to reduce the amount of greenhouse gas emissions that are contributing to global warming. More recently, in addition to climate mitigation, attention has turned to the question of climate adaptation, of the development of law and policies that respond to the environmental consequences of climate change. In this Pacific Region Edition of the Golden Gate University Environmental Law Journal, titled Climate Resiliency – California Prepares for an Altered Environment, we develop this theme of climate adaptation. Our edition features six articles, three from professionals in the legal field and three from students at Golden Gate University.
PubDate: Tue, 16 Aug 2016 15:37:32 PDT
- The Golden Rule* of Water Management
Authors: Russell M. McGlothlin et al.
Abstract: California follows a “Golden Rule” of water management, which requires management of the state’s water for maximum beneficial use. This principle is codified at Article X, Section 2 of California’s Constitution. However, the Golden Rule has a qualifier—an asterisk—which requires that water management “preserve water right priorities to the extent those priorities do not lead to unreasonable use.” We call this qualifier the Mojave Rule, named after the California Supreme Court’s decision in City of Barstow v. Mojave Water Agency. The Golden Rule* is the foundation of water management in California and the Mojave Rule is the key qualifier.This article explores the Golden Rule* as a lens to analyze perplexing water management issues and controversies, including the tension between “public” and “private” interests affected by water management; balancing the countervailing interests of adaptable water management on the one hand, and water supply reliability and legal certainty on the other; the demarcation between reasonable water regulations and a taking of a water right; and the dual roles of the courts to both adjudicate the rights of the litigants and advance implicated social welfare interests affected by water management.These issues are analyzed here in two parts. Part II explains the overarching constitutional obligation on public agencies and the courts to manage water resources for maximum beneficial use in a manner that reasonably preserves common law water rights. This part discusses the underlying nature of a water right and water right priorities in California and how the Golden Rule* balances the tensions that underlie water management. Part III discusses application of the Golden Rule*. This part explains how the rule may be used to assess whether a water management regulation will sustain legal challenge, the courts’ duty to apply the Golden Rule* in water management conflicts, operation of the Golden Rule* in the recently enacted Sustainable Groundwater Management Act (SGMA), projections concerning the Golden Rule* in future groundwater basin adjudications, and how the rule may apply to conflicts concerning the use of subterranean storage space for groundwater storage and conjunctive use programs. A postscript provides an update on recent California legislation enacted to streamline the judicial procedures applicable to groundwater adjudications and to ensure that future groundwater adjudications are managed consistent with SGMA.
PubDate: Thu, 28 Jan 2016 09:42:26 PST
- Not All Water Stored Underground is Groundwater: Aquifer Privatization and
California's 2014 Groundwater Sustainable Management Act
Authors: Adam Keats et al.
Abstract: California’s Sustainable Groundwater Management Act of 2014 (“Act”) has been heralded as a “once-in-a-century achievement.” While some have criticized the Act’s relatively modest regulatory goals, long compliance deadlines, and weak enforcement powers, others have hailed the mere accomplishment of the state passing some form of groundwater legislation and celebrated the Act’s stated goals of protecting existing water rights and local control of groundwater supplies. Some groundwater basins may prove to be well-suited for the regulatory scheme imposed by the Act, but equitable regulation of other groundwater basins may be challenged by current and future efforts to privatize these groundwater resources. Specifically, several major basins, including the Paso Robles and the Kern, are threatened by the development of water banking operations which function to replace groundwater resources with privatized, banked water that would undermine the public interest – a threat that the Sustainable Groundwater Management Act may be promoting.
PubDate: Thu, 28 Jan 2016 09:42:24 PST
- A Vineyardist's View on Reasonable Use and Frost Protection
Diversions Under California Water Law
Authors: Nicholas Jacobs
Abstract: This Article will discuss the Light case from the perspective of my firm’s vineyardist clients—including our understanding of the Reasonable Use Doctrine and its application to the frost protection regulation.The underlying premise of the frost protection regulation is the theory that reductions in streamflow caused by frost protection diversions cause or contribute to stranding of juvenile salmonids in the exposed gravel banks of the rivers and streams in the Russian River watershed. One of the key issues in Light was whether good science supports this theory. From the perspective of my vineyardist clients, the State Board relied on very weak science in support of this theory. As always, perspective is crucial in determining what level of science is necessary to support a regulation that will impose major costs on vineyardists in Mendocino and Sonoma Counties. From the perspective of my clients, there ought to be sound science underlying the relationship between frost diversions and salmonid strandings before imposing any water use regulation. In contrast, members of the environmental and academic community seem less interested in examining the science and more inclined to accept the State Board’s conclusion tying frost diversions to salmonid strandings—at least in my conversations with these folks.The Background section presents information on frost protection and the fisheries issues that led to enactment of section 862 of title 23 of the California Code of Regulations (“Section 862”). Part III describes Section 862, and Part IV summarizes the law of reasonable use. Part V describes the arguments asserted by the plaintiffs challenging Section 862 and the rulings by the trial court and court of appeal. Part VI describes Light and discusses the implications of the court’s ruling.
PubDate: Thu, 28 Jan 2016 09:42:22 PST
- Reasonable Use on the Russian River: A Brief History of the Frost
Authors: Brian J. Johnson
Abstract: The Russian River Frost Protection Regulation (“Frost Protection Rule”) states that “any diversion of water from the Russian River stream system, including the pumping of hydraulically connected groundwater, for purposes of frost protection” must be diverted in accordance with an approved “water demand management program” (WDMP), or the diversion “is an unreasonable method of diversion and use and a violation of Water Code section 100.” The California State Water Resources Control Board (“State Water Board”) adopted the Frost Protection Rule on September 20, 2011.Litigation over the rule culminated in the decision in Light et al. v. State Water Res. Control Bd., 226 Cal. App. 4th 1463 (2014), which confirmed that the State Water Board has authority to adopt quasi-legislative rules for the reasonable use and reasonable manner of water diversion. The court also reiterated that the reasonable use doctrine applies to all water rights—including riparian and pre-1914 appropriators. Finally, the court approved the State Water Board’s reliance on industry-led consortiums of water right holders to assist in the management of the frost protection program through the adoption of the WDMPs.Readers of the Light decision could be forgiven for assuming that the case presented a classic conflict between heavy-handed regulators, environmental interests, and farmers. As the rule-making proceeded, there were moments of conflict and some grape growers eventually filed a lawsuit. However, there was also a great deal of common ground between others in the winegrape industry, State Water Board members, and the conservation community. One of the Frost Protection Rule’s untold stories is the tremendous amount of progress that was made “on the ground” while the rule was in development and delayed by litigation. The winegrape industry deserves credit for its actions, and the State Water Board and wildlife agencies deserve credit for bringing the issue forward. The progress that has happened on the ground augurs well for the future of the effort, and begs the question whether the Frost Protection Rule is already a success.
PubDate: Thu, 28 Jan 2016 09:42:21 PST
- Desperate Times Call for Sensible Measures: The Making of the California
Sustainable Groundwater Management Act
Authors: Tina Cannon Leahy
Abstract: The story of how California passed the Sustainable Groundwater Management Act (SGMA)—popularly pronounced as “Sigma”—is an example of how what occurs “overnight” can be a century in the making.California is frequently the United States’ leader in sustainability and progressive regulation. Sections of the State’s Porter-Cologne Water Quality Control Act were models for the modern federal Clean Water Act. The federal Clean Air Act provided California a preemption waiver that not only allowed it to set its own automobile emissions standards but empowered other states to choose between the stricter California standard and the federal standard. With a market share of over 8% of the total United States population, the State’s 2003 ban on brominated flame-retardants was effectively a nationwide ban. And in 2006, California took legislative action on climate change while congressional leaders were still nattering about whether global warming was related to human activities. Nonetheless, California was the last State in the nation to adopt a statewide system for groundwater regulation.
PubDate: Thu, 28 Jan 2016 09:42:20 PST
- In This Edition
Authors: Phoebe Moshfegh et al.
PubDate: Thu, 28 Jan 2016 09:42:18 PST
- Environmental Tax Incentives: What the United States Can Learn From the
Netherlands and Japan
Authors: Kali Waller
Abstract: This Comment explores policy developments in the United States, Netherlands, and Japan, and identifies elements possessed by the most successful environmental tax schemes: simplicity, cost-effectiveness, and culture-specificity. These countries offer a diverse view of Western and Eastern culture and tax paradigms. Each country has a distinct way of managing taxes while implementing programs that encourage environmental reform. Additionally, the culture in each country is unique, making tax implementations and management particular to each.In Part II, this Comment addresses the historical development of Green Building and Energy efficiency globally and in the United States, the Netherlands, and Japan. Part III analyzes the impact of cost, complexity, and culture on environmental tax incentives. The cost of a program is one of the most important elements in an environmental tax regime. The cost of the program must not be too high because the government should feel comfortable having the program last indefinitely without stifling the economy. The complexity of the program must also be minimal so that any consumer or corporation can participate. Finally, participation depends on citizens' attitude toward tax implementation, which is in part a product of the characteristics of their particular culture. To be successful in the United States capitalistic culture, ideal tax incentive schemes must reflect low government and consumer costs, and seamlessly integrate a straightforward administrative process.
PubDate: Mon, 28 Sep 2015 10:36:29 PDT
- Taming the West: Senate Bill 4 and California's Struggle to Regulate
Authors: Justin Hedemark
Abstract: This Comment begins with a history of fracking, the current impact of the practice, and why it has become such a highly contested issue. It will explain how fracking is being done in California and present the current landscape of federal and state regulations. Specifically, California fracking regulations are currently in a state of flux due to the recent enactment of California State Senate Bill 4 ("SB 4"). The Argument section of this Comment posits that SB 4 may have some beneficial effects regarding increased environmental protection and regulatory oversight, but there remain weak spots in the current regulations that put human health and the environment at risk. Although not perfect, SB 4 is a sign of progress, and this Comment explains how the new regulations can be further improved to protect the health, welfare, and natural environment of California. Such improvements include limiting trade secret exemptions for fracking liquid, increased notice requirements, adequate funding for state agencies charged with implementing new regulations, and proper procedural oversight of new agency practices. If these improvements are implemented, they will make SB 4 a model for other jurisdictions seeking to adopt similar environmental protections.
PubDate: Mon, 28 Sep 2015 10:36:28 PDT
- An Unfulfilled Promise: How National Security Deference Erodes
Authors: McCall Baugh
Abstract: This Comment focuses on two main issues: environmental justice's procedural limitations following Alexander v. Sandoval, and the loopholes within existing environmental legislation as they apply to military activities. In this respect, Richard Armour's famous idiom "hindsight is 20/20" is telling. As long as the military has carte blanche to ignore environmental laws, environmental justice will continue to remain a legal mirage beholden to the government's pecking order of judicial deference. Vague notions of national security and deference to the military wrinkle the fabric of environmental laws that are intended to create safe and healthy communities. Legislators must close loopholes in environmental laws, codify the Order, and explicitly create a private cause of action for disparate-impact plaintiffs so that environmental justice can finally be achieved.Subpart A of the Argument describes existing military exceptions from environmental laws. Of particular concern is the military's invocation of "national security" to opt out of environmental laws. Despite congressional intent to limit national security waivers to exceptional and emergency contexts, courts interpret security needs broadly. Subpart A also highlights the concern for environmental justice proponents when faced with national security waivers. Subpart B examines the procedural limitations that environmental justice advocates experience through the National Environmental Policy Act (NEPA). Then, Subpart C discusses why super-deference to the military under the Administrative Procedure Act (APA) is of particular concern to environmental justice proponents. Subpart D focuses on Alexander v. Sandoval, a Supreme Court case that limited private causes of action for disparate-impact claims. Following Alexander v. Sandoval, there are three ways for communities to fight environmental justice. First, communities facing disproportionate environmental hazards must prove that the government intentionally discriminated against them. Second, claimants may seek redress through Title VI's administrative review process. However, because intentional discrimination is so difficult to prove and Title VI's administrative review process rarely results in a finding for the claimants, these options are inadequate. Third, claimants may seek alternatives to the court and administrative systems to combat disparate impacts of environmental hazards facing their communities. Finally, Subpart E discusses these alternatives, which include avoiding "lawyer-centered" models by advocating grassroots activism and community partnerships with the military.
PubDate: Mon, 28 Sep 2015 10:36:27 PDT