By Collin McCarthy, GGU 3rd Year Law Student
On January 26,2015, the Ninth Circuit issued a ruling on a question of first impression for the court: whether a party may recover fees under the Surface Mining Control and Reclamation Act
(SMCRA) when its administrative challenge to a permit is declared moot as a result of a co-party’s success on a substantially similar motion for summary judgment. While the issue was not resolved in its entirety, the court concluded that such parties may be eligible to recover their fees and costs, provided they achieved some degree of success on the merits and made a substantial contribution to a full and fair determination of the issues. Significantly, although it remains uncertain exactly what amounts to a “substantial contribution” to a determination, it is clear that achieving “success on the merits” is not determined solely based on the captions and docket number attached to the motion granted. Continue reading
By GGU Assoc. Prof. Deborah Behles
The California Public Utilities Commission (CPUC) has an unusual way of doing business. Most state and federal regulatory agencies prohibit private, closed-door discussions with interested parties about contested matters (ex parte communications). The CPUC largely does not even though it makes decisions affecting the welfare of Californians and the disposition of billions of dollars. To the contrary, most commissioners and their advisors encourage such private meetings in all but the most judicial, “adjudicatory” cases. These ex parte conversations occur in proceedings that may have had many elements of a traditional judicial process including formal testimony, discovery, evidentiary hearings, and pleadings. The agency’s procedures and process is intended to ensure fair treatment for all effected parties, and the ultimate decision is required to be based solely on the public record in the proceeding. Nonetheless, interested parties communicate with decision-makers by phone and email, and socialize with those same decision-makers conferences and retreats.
This way of doing business has become awkward for the agency in the last few months, as stories have surfaced about various discussions of substantive issues in pending proceedings. In some instances, even the existing rules would have prohibited the conversations. In others, the rules allow them, but public notice should have been provided. As the revelations continue to mount, state and federal law enforcement agencies are investigating, legislation is being considered, and the CPUC is trying to figure out what changes in its protocols are in order. Continue reading
My new article on the Okinawa controversy over a US Marine base relocation that has stirred a new battle in San Francisco Federal District Court, and transformed Okinawa politics, is now available on Westlaw. The full cite is: Alan Ramo, GGU Professor of Law, U.S. Military Accountability For Extraterritorial Environmental Impacts: An Examination Of Okinawa, Environmental Justice, And Judicial Militarism, 28 Tul. Envtl. L.J. 53 (2014). Here is the extract:
Local resistance to the relocation of a U.S. military base to a bay threatening an endangered sea mammal off the coast of the island of Okinawa raises important issues regarding the extraterritoriality of U.S. environmental laws, the role of the courts in reviewing military operations, and ultimately environmental justice. These issues are being played out in an island community that for centuries has tried to survive by balancing the great powers of China, Japan, and the United States. Okinawans now find themselves a minority subject to discrimination in Japan and still suffering from the impacts of the legacy of U.S. occupation and continued use of U.S. bases on their culture, economy, and environment.
Federal courts continue to inconsistently sort out the extraterritoriality of U.S. laws, including environmental laws. Already one federal court has applied the National Historical Preservation Act to this controversy in Okinawa. Strong arguments remain that the National Environmental Policy Act and the Endangered Species Act should also apply to the U.S. military’s actions in Okinawa. Although the modern United States Supreme Court has reversed earlier cases and given great deference to military operations, a form of judicial militarism, environmental justice demands and case law allows these environmental laws to shape U.S. military conduct on Okinawa and protect its environment.
By GGU Prof. Alan Ramo
A report of the October 1st meeting of the US Environmental Protection Agency’s National Environmental Justice Advisory Committee in Environment and Energy Publishing’s website caught my attention for two reasons. First, in the October 2nd, 2014, article written by E&E reporter Robin Bravender, “Top brass on defense as environmental justice advocates slam climate rule”, EPA Chief Gina McCarthy reportedly acted “surprised” when a NEJAC member criticized the new EPA greenhouse gas power plant rule. McCarthy apparently was not aware that her Environmental Justice office widely advertised a July 21, 2014, webinar entitled, “What’s at Stake: Environmental Justice and the EPA’s Clean Power Plan.” That webinar, sponsored by WEACT, featured a number of environmental justice advocates, including Brent Newell of the Center on Race, Poverty & the Environment, who roundly criticized aspects of the proposal. (For webinar, go to http://www.weact.org/ejcleanair/resources/index.html and scroll down to “webinar.”) Continue reading
In Spring 2014 GGU, under the direction of Associate Professor Kathleen Morris, hosted a groundbreaking collaboration between cities seeking law and policy advice and GGU law students. In response to client questions, over several months our students produced wonderful law and policy papers that will be put to use in the real world.
One paper in particular caught our attention at CUEL as it fits within one of our themes of “Urban Greenspace.” The paper is entitled, “Progressive Cities: Models for Using Public Land for Community Gardens”, by Lynne Rose Maylath, and can be accessed on our Greenspace page here. A related blog page from a few years ago on San Francisco’s efforts can be accessed here.
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