California Reasonable Use Law, Frost Protection Diversions and Stranded Salmon

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

Posted in Work on Water

CUEL Blog Predicts Accurately Supremes 5-4 decision in Greenhouse Gas case.

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.

Posted in Air and Environmental Justice, Climate Change

Initial Analyis of EPA’s New Carbon Rule

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

Posted in Air and Environmental Justice, Climate Change

The California Fracking Law: Ignoring all Impacts until January 1, 2015

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

Posted in Air and Environmental Justice, Land Use

Supreme Court Hears Oral Arguments for EPA’s Carbon Dioxide Regulation: An Uncertain Future for PSD Program.

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

Posted in Air and Environmental Justice, Climate Change

Behles and Ramo article on Mohave Generating Case

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.

Posted in Air and Environmental Justice, Climate Change

Divided Ninth Circuit Denies Rehearing En Banc in Cal. Low Carbon Fuel Standard Case — A Closer Look at Dormant Commerce Clause and Carbon Regulation

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

Posted in Climate Change

Environmental Citizen Suits in China?

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

Posted in Air and Environmental Justice

A First: Critical Habitat Designated in San Francisco for Endangered Franciscan Manzanita

By Laura Horton, GGU Law Grad (2012), Wild Equity Institute Staff Attorney

[Note, on occasion we like to let alumni post about interesting topics as they are working on several interesting environmental law issues and it shows the diversity of their practices]

In October 2011, CUEL published a blog post about the plight of the Franciscan Manzanita, an evergreen shrub endemic to San Francisco that was once thought to be extinct in the wild. As the post described, a single Franciscan Manzanita plant was discovered in the Presidio in 2009, and native plant advocates rushed to secure protections for the plant. Later that year, environmentalists petitioned the U.S. Fish and Wildlife Service (“Service”) to list the Franciscan Manzanita as an endangered species. After the environmentalists sued over the Service’s delay in responding to the petition, the Service conducted a review and eventually added the plant to the endangered species list in September 2012. 77 Fed. Reg. 54434 (Sept. 5, 2012). Continue reading

Posted in Land Use, Urban Greenspace

Prof. Ramo Op-Ed in LA Times on Offsets and Cap-And-Trade

My students and I have blogged about the problems and litigation involved with California’s cap-and-trade program, and in particular, the problem with offsets, most recently here.  On November 14, the Los Angeles Times published an op-ed on the offset issues written by me and the ace analyst/organizer Janet Redmond from the Institute for Policy Studies, which can be retrieved here.

Posted in Climate Change