GGU’s Prof. Ramo will post tweets on his account whenever the CUEL blog has a new post, or something exciting in environmental law is brewing. He is at greenlaw@envirolawprof.
By Alan Ramo
The Supreme Court today refused to consider a petition requesting review of the Ninth Circuit’s approval of California’s Low Carbon Fuel Standard. The court provided no reasons. See our blog on the En Banc decision upholding the standard. It is a real win for one of the state’s most important climate change policies and for a more practical approach to the dormant commerce clause. The decision should encourage the states to fashion innovative climate change policies in the absence of comprehensive federal policy, an explicit goal of the Ninth Circuit in its decision.
Paul Stanton Kibel, Professor, Golden Gate University School of Law
In California water law these days, there is increasingly talk about the reasonable use provisions of the California Constitution (Article X, Section 2) and the California Water Code (Section 275). These provisions provide that all water uses and methods of water diversion in California must be reasonable and cannot be wasteful. Due to disappointment with the effectiveness of such laws as the federal Clean Water Act and the federal Endangered Species Act in ensuring sufficient water is left for fisheries, some fishery advocates have proposed that the State Water Resources Control Board (State Water Board) rely more on California reasonable use law to maintain adequate instream flow. A new decision now supports this view. Continue reading
By Prof. Alan Ramo
The US Supreme Court in an opinion today reversed in part US EPA’s greenhouse gas PSD program for greenhouse gases. While the press and many environmentalists may bemoan the decision, on March 6, 2014, in our blog we predicted the result and argued that in fact, such a decision would be good for environmentalists because US EPA went too far in going beyond its authority and it is important that EPA stick to its statutory authority. As we said, “We are betting in this blog that the Supreme Court will find that the EPA has authority to regulate CO2 within the PSD permitting program, but may restrict EPA’s regulation of CO2 to major stationary sources already regulated under the PSD program.”
We noted that practically this result will still allow the regulation of most of the sources of greenhouse gases, as they are already in the PSD program for other reasons and the court today affirmed their regulation for greenhouse gases. Congratulations to our blogger, Joseph Lounsbury, for his analysis.
By Professor Alan Ramo
I have been reviewing the June 2, 2014, United States Environmental Protection Agency (U.S. E.P.A.) Clean Power Plan Proposed Rule for existing power plants and assessing some of the early commentary. I wanted to blog particularly on one of the options for the states provided in the rule, and particularly one aspect of that option. As was announced, the states are being given a choice of options to pursue in developing plans for carbon reduction. One of those options is market trading programs. Continue reading
By Joseph Lounsbury, GGU 2014 JD
In November 2013, Jayni Foley Hein, Executive Director for Center for Law, Energy & the Environment, wrote a blog discussing the passage of California’s first law regarding well stimulation, SB 4. In her blog, Hein discussed the limited future the California Environmental Quality Act (CEQA) may have on well stimulation. She mentions that, “[t]he new law orders the State, by July 15, 2015, to conduct an environmental impact report (EIR) pursuant to CEQA, analyzing the effects of hydraulic fracturing statewide.” However, she states that during the interim period, individual well operators, or the agency given regulatory authority in the law, may not have to comply with CEQA.[i] Continue reading
By Joseph Lounsbury, 3rd year GGU Law
On Monday, February 24, 2014, the United States Supreme Court heard oral arguments for a group of consolidated cases coined Utility Air Regulatory Group v. The Environmental Protection Agency, which will decide whether the United States Environmental Protection Agency’s (EPA) current structure for regulating stationary sources of greenhouse gases (GHG) under the Prevention of Significant Deterioration (PSD) permitting program is an acceptable use of agency deference. Specifically, the Court will rule on whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered PSD permitting requirements under the Clean Air Act (CAA) for stationary sources.
The case, beyond its crucial importance for future regulation of GHGs from large stationary sources, presents an unusual conflict between the deference normally afforded an expert administrative agency and explicit language in a statute. It puts environmentalists in a difficult position as to who to root for, as EPA is arguing that it has the right to ignore numbers in a statute because, if followed, these numbers produce absurd results. On the one hand, if EPA wins, greenhouse gases will be further reduced. On the other hand, allowing EPA to ignore specific statutory mandates might rebound against environmentalists in future litigation who challenge EPA’s statutory interpretation. Continue reading
Professors Ramo and Behles have published a new article about the Environmental Law and Justice Clinic’s case about Just Transition and the Mohave Generating Station. Follow the link here. Read about how an alliance of Sierra Club, Grand Canyon Trust and Hopi and Navajo grassroots organizations worked with the Clinic to direct an energy company’s acid rain credits to facilitate investment in renewable energy on tribal controlled land to transition communities from the impacts of the shutdown of the coal-fueled power plant.
By Joseph Lounsbury, GGU 3rd Year Law Student
As this Blog discussed in an October, 2013 posting, the recent Ninth Circuit Appeal Court Case, Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (C.A.9 (Cal.),2013), “virtually vindicated the California Air Resources Board’s (CARB) Low Carbon Fuel Standard (LCFS)” a key state global warming strategy. The Ninth Circuit panel rejected the district court’s notion that the LCFS was facially discriminatory under the doctrine of the constitutional Dormant Commerce Clause, and remanded back to the District Court to determine if in fact there was a discriminatory purpose and effect of this regulation.
The full Ninth Circuit, voting on a petition for rehearing en banc, on January 22, 2014, sustained the panel’s decision. Rocky Mt. Farmers Union v. Corey, 12-15135, 2014 WL 223797 (9th Cir. 2014)(Denial of Request for Rehearing). However, the denial was opposed by seven judges who authored a vigorous dissent. Judge Ronald M. Gould, the writer of the panel’s majority opinion, in a concurring opinion rejected the petition and characterized the dissent as “riddled with overstatements” and “alarmist rhetoric.” Notwithstanding these charges, the dissent is heated and Judge Gould conjectured that the dissent is aimed directly at getting the US Supreme Court to take the case. Continue reading
One of our SJD students, Shufan Sung, a member of both the California and Taiwanese bars, has co-written an excellent article entitled “Can Citizen Suits Help China Battle Pollution” in the January 8, 2014 Los Angeles Daily Journal about the evolution of citizen suits in China. If you think Justice Scalia at our US Supreme Court is tough on citizen suits, check out the Chinese government’s restrictions, though there is progress being made and some hope given their horrendous pollution problems. — Prof. Ramo