Authors:Maximo Lacerca-Desrosiers Abstract: On April 30, 2020, the Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”) issued a final rule called the “Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2026 Passenger and Light Trucks” (“SAFE Rule”) to amend the Corporate Average Fuel Economy (“CAFE”) ratings. CAFE standards are regulations first enacted nearly fifty years ago to promote greater fuel efficiency in car manufacturing through a system of incentives and penalties. While the CAFE standards have been revised many times over the years, the SAFE Rule rolled back the more stringent 2012 CAFE standards that sought to align fuel efficiency with broader strategies to reduce greenhouse gas (“GHG”) emissions to address global climate change. Now that President Biden has taken office, the SAFE Rule is undergoing review, which may result in a return to more stringent standards. However, even with a regulatory fix, the use of CAFE standards to combat climate change is likely to remain problematic.This comment will explore the history of the CAFE standards and the SAFE Rule as they relate to efforts to promote fuel efficient vehicles and reduce GHG emissions. This begins with a brief overview of the CAFE standards, including the roles of the EPA and the NHTSA in administering the standards, why the CAFE standards were created, and how this relates to the regulation of GHG emissions to address climate change. Next, this comment will evaluate how past legal challenges have influenced the CAFE regulations and how the SAFE Rule fits into the resulting regulatory and legal framework. Finally, this comment will discuss how the Biden administration can respond to the SAFE Rule, and what this might mean for the future of fuel-efficient vehicles and the increasingly urgent need to reduce GHG emissions to address climate change. PubDate: Mon, 28 Jun 2021 17:16:44 PDT
Authors:Caesaria Kim Abstract: In the face of the climate crisis, people are increasingly interested in more sustainable and eco-conscious alternatives to fossil fuels. As a result, companies associated with fossil fuel industries are under pressure to conform to this trend among consumers by marketing themselves as leaders in developing sustainable alternatives. However, instead of changing their practices in an effort to mitigate climate change, some companies only promote the appearance of change by engaging in “greenwashing.” Greenwashing is defined as the “practice of misleading people to believe that a company is engaging in virtuous practices so as to cover up poor practices” or relying on appearances instead of reality; i.e., relying on good marketing instead of actual change.This comment will explore the implications of these cases with respect to a key difference between Big Oil and Big Tobacco, which is that, unlike tobacco, many aspects of our society still depend on oil and gas. Responsible advertising, like that which helped curtail the use and sales of cigarettes, may not be as effective when it comes to oil. Many people still have little personal choice as to whether to participate in the oil economy because they rely on oil for fueling cars and homes and many other uses. Therefore, in order to be effective in the fight against climate change, an injunction prohibiting Exxon’s greenwashing should be paired with government efforts to develop alternatives to petroleum products that will give consumers a real choice. Alternatives can include increasing access to greener transportation such as electric vehicles, as well as public transit and active travel.This comment begins with an overview of the deceptive advertising practices that were used by the tobacco industry and those used more recently by the oil and gas industry, focusing on Exxon in particular. It then takes a closer look at the relief sought in these cases and considers how the differences between these industries might limit the effectiveness of restricting greenwashing. Finally, the comment recommends additional government actions to enhance the impact of the current lawsuits in addressing climate change. PubDate: Mon, 28 Jun 2021 17:16:42 PDT
Authors:Sean G. Herman Abstract: The Clean Water Act has traveled a successful but tortuous path. From combustible beginnings on the Cuyahoga River; through the Lake St. Clair wetlands; to reservoirs near the Miccosukee; and eventually discharged (or “functionally” discharged) off the Maui coast. With each bend, the nearly fifty-year-old Act has proven to be not just resilient, but among our most successful environmental laws. Much of that success stems from an effective enforcement structure that focuses more on treating pollutant sources rather than just impaired waters. The text creating that structure has largely remained untouched by Congress for decades.This article begins by posing a thesis: The Clean Water Act regulates all “waters of the United States.” It then suggests a two-part antithesis: Congress violated the nondelegation and void-for-vagueness doctrines by defining the Clean Water Act only as reaching “waters of the United States.” And it resolves the conflict with a synthesis: a call for Congress to amend the Clean Water Act by providing the statute with a more stable and intelligible jurisdictional reach. Federal oversight in water quality regulation is a necessity. But to what degree is a policy decision that Congress has yet to make. PubDate: Mon, 28 Jun 2021 17:16:41 PDT
Authors:Geoffrey Garver Abstract: The North American Free Trade Agreement (NAFTA)2 is now history, and, depending on where you are, as of July 1, 2020, the Canada- United States-Mexico Agreement (CUSMA) in Canada, the United- States-Mexico-Canada (USMCA) in the United States, or the Tratado entre M´exico, Estados Unidos y Canad´a (T-MEC) is in force. The renegotiation of NAFTA fulfilled candidate Donald Trump’s promise to scrap or renegotiate NAFTA in order to protect and restore United States jobs and industrial capacity and increase economic growth, themes that consistently helped define his trade agenda politically as President. But what about the environment' When NAFTA was finalized early in the Clinton Administration in 1993, North American environmental groups insisted that the agreement address their concerns that liberalized trade and investment would lead to environmental dumping, environmental backsliding, weak environmental enforcement and scale effects (i.e., more trade equals more environmental impact). The environmental provisions of NAFTA and its environmental side agreement, the North American Agreement on Environmental Cooperation (NAAEC), responded to many of those concerns, at least on paper, and set the broad contours of United States trade and environment policy ever since.In this article, I will first review, analyze and critique the key changes that NAFTA’s replacement made to the environmental provisions of NAFTA and the NAAEC. I will then explain why the environmental provisions of CUSMA-USMCA and its ancillary Environmental Cooperation Agreement (ECA), like the environmental policy approach typical of post-NAFTA trade and investment agreements, are woefully inadequate for helping to solve urgent challenges, like climate change and loss of biodiversity, that the human enterprise faces in these ecologically dire times. PubDate: Mon, 28 Jun 2021 17:16:39 PDT
Authors:Kristin Peer et al. Abstract: Pursuant to Clean Water Act section 401, state water quality certification authority to regulate federally-licensed energy projects has been relatively well settled for decades. Long-standing precedents from the U.S. Supreme Court, other federal courts, the U.S. Environmental Protection Agency (“U.S. EPA”), and implementation of certification authority by the states, have repeatedly reinforced the cooperative federalism principle of the Clean Water Act: state section 401 certification authority is essential to preserve the states’ ability to address a wide range of pollution problems caused by federally-permitted energy facilities. In recent years, however, state section 401 certification authority has come under siege in the courts, by the Federal Energy Regulatory Commission (“FERC”), and through federal rule changes.This Article examines the interrelationship of the Federal Power Act and the Clean Water Act with respect to states’ duties to protect water quality. It then explores how section 401 is being redefined by the Hoopa Valley decision and U.S. EPA’s Certification Rule, and discusses the State of California’s response to those recent events. Ultimately, it remains to be seen whether the numerous legal challenges currently underway to test the legality of the federal agency actions will succeed in re-aligning the states’ ability to regulate water quality within their borders. PubDate: Mon, 28 Jun 2021 17:16:37 PDT
Authors:Kevin Dalia Abstract: This article provides a brief historiography of legislative prejudice against marijuana to provide greater context as to why marijuana laws are strict, excessive, and improperly motivated, leading to environmental concerns that could be mitigated. The article compares waste management, packaging, and labeling regulations in the ten states that have legalized commercial marijuana. This comparison allows us to explore two sides of the same regulatory coin, showing examples of excessive and environmentally harmful regulations on one side, while highlighting regulations that should serve as exemplars for future legislation on the other. Also included are some of the industry practices and community feedback to shed light on the regulations in practice. Hopefully this article can contribute to moving the needle towards a more equitable and sustainable regulatory system of the marijuana industry. PubDate: Mon, 27 Jul 2020 11:27:39 PDT
Authors:Jude Diebold Abstract: In 2013, Aimee Stephens, an employee of six years at R.G & G.R. Harris Funeral Homes, informed her employer she is transgender, and would begin living as a woman full time. The employer disbelieved Stephens’ gender identity; they viewed Stephens as male, and in violation of their sex specific dress code for men, which requires men to wear button downs and ties, and women to wear skirts and heels. Two weeks after informing her employer of her true gender identity, Harris Funeral Homes fired Stephens, stating that her refusal to abide by the sex specific dress code as a “biological male” was the reason for termination. The employer has not denied that Ms. Stephens was fired due to her transgender identity, but rather, contends that her gender identity is not a protected by the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, among other forms. PubDate: Mon, 27 Jul 2020 11:27:35 PDT
Authors:Susan M. Bradford Abstract: This paper explores the role of general plan consistency in the context of climate change. As California’s statewide response to global warming continues to evolve, new statutory and regulatory requirements are changing the scope of local land use planning, both directly and indirectly. The San Diego case provides one example of how this changing legal framework has led to new kinds of land use conflicts over competing strategies for climate mitigation. The growing imperative for local governments to rethink land uses in response to climate change could signal a larger role for general plan consistency as a lever for enforcing compliance. PubDate: Mon, 27 Jul 2020 11:27:31 PDT
Authors:Kevin O'Brien et al. Abstract: California’s Sustainable Groundwater Management Act (“SGMA”) has been the topic of many discussions since its enactment in 2014. The overarching goal of SGMA is to achieve sustainable groundwater basins through management plans “without causing undesirable results.” Considering the importance and magnitude of this task, it comes as no surprise that SGMA was the theme for the February 2019 California Water Law Symposium, held at the University of California (“UC”), Hastings College of Law in San Francisco. For the Symposium, Golden Gate University School of Law (“GGU”) students gathered a panel of experts to explore the relationship between groundwater plans and surface water within the context of SGMA. The GGU panel focused on issues stemming from the hydrological connections — particularly the undesirable results — between surface water and groundwater, impacts on fisheries, and the public trust doctrine. PubDate: Mon, 27 Jul 2020 11:27:26 PDT
Authors:Rebecca L. Jodidio Abstract: Visiting the zoo is a beloved national pastime — American zoos attract 183 million people annually. For many Americans, zoos provide the first, and sometimes only, opportunity for individuals to be in the presence of animals outside of domesticated cats and dogs. However, for the animals themselves, zoos can cause suffering.Two philosophies support the protection of wild animals in captivity: an anthropocentric and ecocentric view. According to the former, anthropocentric view, wild animals hold an extrinsic value and when they cease to be valuable to humans, or conflict with our other values, their interests can be sacrificed. The latter, ecocentric view, holds that wild animals have intrinsic value, can be morally harmed, and how we treat them should not be judged solely by the benefit to humans of a particular course of action. This article is written from the philosophy that animals have an intrinsic value. It examines how zoos operate under the Animal Welfare Act and how it must be improved to better zoo animal welfare under the ecocentric view.Part II provides an overview of the Animal Welfare Act, under which all zoos must adhere and are licensed. Part III discusses issues with the Animal Welfare Act, focusing on the lack of enforcement, bare minimum care standards, the United States Department of Agriculture’s (“USDA”) failure to shut down non-compliant zoos, and the USDA’s secrecy regarding Animal Welfare Act violator documentation. Part IV discusses two zoo accreditation organizations that provide additional animal welfare guidance to zoos and offer membership status. Part V examines the problems with zoos, including individual animal psychological suffering in captivity and breeding programs, animal susceptibility to human diseases, exploitation of zoo animals for human entertainment, and potential harm to humans. Part VI examines suggestions for improvement to the Animal Welfare Act and the viability of these recommendations, assessing their practicality and sufficiency. This article concludes that the Animal Welfare Act should be amended with species specific guidelines, a prohibition on public contact with animals, a stricter licensing procedure, and a provision for the creation of USDA facilities to treat and house confiscated animals from non-compliant zoos. Without meaningful changes to the Animal Welfare Act, the animals will continue to suffer in sub-par conditions. PubDate: Mon, 27 Jul 2020 11:27:22 PDT
Authors:Clifford T. Lee Abstract: The struggle between California’s water plentiful north and the water deficient south has marked water conflict in the state for the last century. This struggle has played out in repeated disputes over the operation of the federal Central Valley Project (“CVP”) and the California State Water Project (“SWP”), the two inter-basin water conveyance facilities that deliver water through-out the state. Commencing in the 1920’s and 30’s with the enactment of California’s area of origin statutes and extending in more recent times to federal and state environmental laws, a complex set of legal requirements constrain the CVP and the SWP’s ability to deliver water to the projects’ agricultural and municipal users.Doubts about the efficacy of these requirements to achieve their goals have been long-standing. Former California state senator Peter Behr’s remark that “[y]ou can’t contain a thirsty beast in a paper cage” reflects the skepticism held by many that the rule of law cannot effectively constrain project operations in a water-short state such as California.This article will address one sub-set of these legal requirements: the historic requirement that federal reclamation projects such as the CVP defer to state law relating to the control, appropriation, use, or distribution of water as set forth in section 8 of the federal Reclamation Act of 1902. This article will discuss: (1) the origin of the federal reclamation law principle of deference to state water law and its inclusion in the Reclamation Act of 1902, (2) the application of the deference principle in California to the CVP, (3) the rise of federal and state endangered species laws as constraints on the CVP and SWP’s use of water, and (4) the implications of the deference principle as to the question of whether California’s endangered species law applies to the CVP. PubDate: Mon, 27 Jul 2020 11:27:17 PDT
Authors:Richard A. Wilson et al. Abstract: It is time to remove governance of California’s core sustainable forest management mandate from CalFire to allow it to focus on its overwhelming fire agency obligations. In the absence of adequate and dedicated funding and resource personnel, CalFire is not satisfying California’s forest resource management goals and objectives. After decades of decline, California must renew its fundamental commitment to sustainable forest management. The governance of forest resource management requirements, as set forth in the Z’Berg Nejedly Forest Practice Act of 1973,10 should be transferred to another agency, the focus of which is resource and land conservation. California needs one dedicated and adequately funded agency with professionally trained staff who understand the complexity and interrelationships within the entire forest system, its productivity, and all of its resources. This different agency would be required and accountable to secure California’s commitment in governing forest resource management. An agency like this would be able to ensure that our forests are restored, enhanced, and maintained to protect the environmental, economic, and social resources that healthy forests provide. An independent agency dedicated to governing forest resource management and land conservation is more critical than ever as California faces and attempts to respond to the irrefutable climate crisis. Our forests must be increasingly available to provide enhanced carbon sequestration for the survival of this and future generations. Such a separation enables healthy forests and leaves CalFire to do its excellent firefighting work. PubDate: Mon, 27 Jul 2020 11:27:10 PDT
Authors:Nicholas Bilof Abstract: This article will examine two at-risk American rivers through a comparison of the different legal approaches brought by the citizens and conservation groups fighting to protect them. Through analysis of the two lawsuits, this article will highlight the flaws of the traditional approach, and introduce a novel proposal for a shift in the lens under which nature is considered in American jurisprudence.Part I will survey the Suwannee River and a citizen suit against a poultry-packing plant accused of illegally fouling its waters through repeated violations of an EPA-issued permit governing wastewater discharges. This suit represents the congressionally-created traditional avenue to protecting a natural object when government agencies are unable or unwilling to enforce environmental regulations.Part II will present the Colorado River and a unique suit, which builds upon dusty law review pages and an old Supreme Court Justice’s dissent in an attempt to establish juridical personhood for a river ecosystem. This case of first impression aims to establish a new legal doctrine that would significantly loosen the standing requirements for citizens seeking to sue for the protection of inanimate, natural objects—by allowing the suit to be brought in the name of the aggrieved ecosystem itself. The court’s declaration of the ecosystem as a legal person is the necessary first step towards the recognition of the ecosystem’s fundamental rights, and an ultimate remedy against the state and governor for the violation of those rights.Part III will consummate the comparison of approaches brought by the two suits through argument positing why an evolution in the consciousness of American jurisprudence is necessary and desirable. Because the governments and laws of the United States have failed to protect the ecosystems within its jurisdiction, Nature needs a voice to litigate for its own preservation. PubDate: Thu, 10 May 2018 20:10:36 PDT
Authors:Julia Chernova Abstract: This article first discusses and explains the laws that govern air quality at the major California ports. Then, it explores the Clean Truck Program (CTP) implemented by the ports of Los Angeles and Long Beach to improve port-related air quality and address public health issues in low-income areas caused by drayage trucks emissions. Next, it discusses a comparison of truck air pollution regulations at the ports of Los Angeles, Long Beach, and Oakland. Finally, this article argues that it is necessary for the port of Oakland to adopt measures used by the ports of Los Angeles and Long Beach to improve air quality in the neighborhood. PubDate: Thu, 10 May 2018 20:10:23 PDT
Authors:Ryan Dadgari Abstract: The discourse surrounding legalizing marijuana use and cultivation is full of political, legal, and economic voices. While some discussions address the high electricity consumption of marijuana grow operations and their effects on the energy grid, few—if any—discuss whether or not public utilities could be held federally liable for supplying power to marijuana grows and incentivizing growers to use more energy efficient methods. Just as banks, doctors and lawyers could be at risk for providing their services to this emerging industry, so too could public utilities. In some cases, utilities that refuse to provide service to state-legal marijuana grow operations experience theft of electricity. This occurs in states where marijuana cultivation is both legal and prohibited. Until Congress intervenes, public utilities must continue to operate in legal limbo if they supply power and incentives to marijuana grows. Legitimate state-legal marijuana businesses face a persistent dearth of resources that other legitimate businesses receive, and high energy consumption will increasingly strain our overburdened power grids. These issues could be addressed through a Federal Energy Regulatory Commission order, Congressional action, or Supreme Court rule. PubDate: Thu, 10 May 2018 20:10:15 PDT
Authors:Elena Idell Abstract: This comment summarizes the saga of Drakes Bay Oyster Company (DBOC), located in Point Reyes National Seashore (Seashore) in Marin County, California, just north of San Francisco. Owned and operated by the Lunny family, DBOC battled the National Park Service (NPS) in an attempt to compel the NPS to renew its special use permit (SUP). The SUP allowed DBOC to operate within Point Reyes National Seashore. This conflict pitted environmentalists against each other. Supporters of local, sustainable agriculture were on one side of the environmental debate. Traditional environmentalists, representing the other side, advocated for returning uninhabited areas to an untouched state. PubDate: Thu, 10 May 2018 20:10:04 PDT
Authors:Ariel Rubissow Okamoto et al. Abstract: This article focuses on the California Coastal Conservancy. It explores the Conservancy’s uniquely proactive approach to coastal zone management through both oral history (collected via telephone interviews) and literature research. In general, being proactive has involved the Conservancy in activities such as identifying coastal areas or wildlife habitats in need of protection; developing plans and priorities for acquisition or restoration; assembling and supporting local stewards and partners; leading and shepherding collaborative projects to fruition; and often providing significant funding. PubDate: Thu, 10 May 2018 20:09:50 PDT