The California Supreme Court’s Unprecedented Focus on Environmental Law

California’s Highest Court Has Far More Environmental Cases Pending Than Ever Before in Its History

Cal Supreme CourthouseThe California Supreme Court, perhaps the most influential state supreme court in the nation, has of late become unusually and intensely focused on environmental law.  More than ever before in its history, the California Supreme Court currently has before it a large docket of environmental cases that, individually and collectively, promise to alter the legal landscape of state environmental law.

Legal Planet colleague Sean Hecht recently wrote about the Supreme Court’s acceptance of an important environmental enforcement case, People v. Rinehart, in which a miner criminally charged with violating California’s current ban on suction dredge mining in state waterways is claiming that the state law is preempted by the federal Mining Law of 1872.  But the Rinehart case is just the latest addition to the Supreme Court’s already crowded environmental docket.

Los Angeles Daily Journal environmental reporter Fiona Smith first broke the story late last year that the California Supreme Court is poised to decide an unprecedented number of cases arising under California’s single most important and heavily-litigated environmental statute, the California Environmental Quality Act (“CEQA”).   Over CEQA’s 45-year history, the Supreme Court justices have decided a number of important CEQA cases, but rarely had more than one or two CEQA cases been on the Court’s docket at any one time.  Currently, however, the Supreme Court has nine different CEQA cases pending before it–three times more than ever before.  The Court’s crowded current CEQA caseload raises some critically important issues, including the following:

  • Whether CEQA’s extensive set of statutory and regulatory exemptions should be narrowly or broadly interpreted by the courts (Berkeley Hillside Preservation v. City of Berkeley);
  • Whether an environmental impact report prepared under CEQA must include an analysis of the potential effects of climate change (e.g., sea level rise) on a proposed project or, alternatively, if CEQA analysis is properly limited to the effect of the project upon the environment (California Building Industry Assn. v. Bay Area Air Quality Management Dist.); and
  • Whether CEQA’s application to proposed new or revised railroad projects in California is preempted by federal law–specifically, the Surface Transportation Act (Friends of the Eel River v. North Coast Railroad Authority).

But the California Supreme Court’s current, extensive focus on CEQA is only part of the story. Also pending before the California justices are a number of non-CEQA environmental cases–many of them with similarly broad, potential consequences.  Among the most important (along with the above-described Rinehart case) are:

  • The California building industry’s multifaceted, constitutional challenge to the City of San Jose’s inclusionary housing ordinance, which is designed to preserve low and moderate housing opportunities in one of the nation’s most expensive real estate markets (California Building Assn. v. City of San Jose); and
  • A property rights challenge to the State of California’s efforts to undertake geologic and environmental testing on privately-owned lands in the path of California’s proposed, controversial Bay Delta Conservation Plan (a.k.a. “twin tunnels project”), which is designed to divert water around the Sacramento-San Joaquin Delta to thirsty urban and agricultural users south of the Delta (Property Reserve v. Superior Court).

All told, the California Supreme Court currently has before it 20 different environmental cases. I’ve been closely following the Supreme Court–and especially its environmental jurisprudence–for nearly 40 years.  My research reveals that the Court has never before had anywhere near as many environmental cases before it at one time as it does now.

This trend is even more remarkable when one considers the California Supreme Court’s limited bandwidth when it comes to civil litigation in general.  That’s because of the Court’s crushing criminal law caseload, which include automatic appeals to the justices from all criminal convictions in California in which the death penalty is imposed.  As a result, at any given time, fully two-thirds to three-quarters of the Supreme Court’s overall docket consists of criminal appeals.

In short, it can be persuasively argued that environmental cases currently dominate the Supreme Court’s civil caseload–again, for the first time in the Court’s history.

These developments raise two important questions.

First, how are the justices likely to rule in this unprecedented number of pending environmental cases?  Over the past 45 years–encompassing the modern environmental era–the California Supreme Court has for the most part proven to be a moderate, middle-of-the-road institution when it comes to most legal issues.  But it’s been relatively progressive in environmental cases in recent years–especially when it comes to CEQA.

That’s unlikely to change anytime soon.  To the contrary, recent changes in the Court’s membership suggest that the justices as a group are likely to steer an even more liberal course than it has in the past.  And that’s likely true with respect to the Court’s burgeoning  environmental docket as well.

The reason is that Democratic Governor Jerry Brown has recently made three appointments to the seven-member Supreme Court: former law professors Goodwin Liu and Mariano-Florentino Cuellar (from Berkeley Law and Stanford Law School, respectively) and former U.S. Department of Justice senior official and advocate Leondra Kruger.  (Governor Brown’s successive appointment to the Supreme Court of three indisputably bright and talented individuals with no previous judicial experience has produced considerable grumbling from many of the state’s sitting lower court judges, but that’s another story.)  While none of the new appointees have come to the Supreme Court with any discernible environmental record or philosophy, my sense is that all three are likely to be somewhat more progressive on environmental issues than the moderate justices they replaced.

The second, key question is: what’s the reason for the Court’s sudden love affair with environmental law?  My only response is that your guess is as good as mine.

The one thing about which I’m certain is that the California Supreme Court’s environmental decision-making in the near future promises to be both prodigious and consequential.  It will be a judicial show well worth watching.

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Reader Comments

3 Replies to “The California Supreme Court’s Unprecedented Focus on Environmental Law”

  1. Rick, this is an informative and insightful article. Thank you for writing and sharing it!

  2. One minor problem with the Brandon Rinehart Case- he has never had a trial or a chance to defend himself. His case is going to the Supreme Court and he has not yet had his day in court. I’m not an attorney, but since when does the supreme court decide on a trial that has never occurred? I posted this response from an article from the Western Mining Alliance on another article on your site, but I am not sure I can find it, so here it is:

    “The Rinehart case has been the most important mining case,
    and continues to be. On January 21st the California Supreme Court
    agreed to review the Appeals Court decision which overturned his
    conviction for dredging without a permit.

    What’s curious about the Supreme Court decision is the
    complete lack of a trial for Rinehart. He was convicted without
    being able to present his defense, which was federal law preempted
    the dredging ban and he had a right to dredge on his mining claim.
    The appeals court merely agreed. They didn’t decide the issue
    of preemption but merely returned the case to the trial court for a
    new trial: a trial in which Rinehart could present his defense.
    This trial hasn’t happened. The State pushed for a review of the
    Appeals Court decision and the Supreme Court accepted the case for

    To those inclined towards conspiracies, is this case shouldn’t be
    going to the Supreme Court; it should be going to the lower court,
    not the higher.

    Let’s boil down the legal arguments here and see if you can
    follow why we’re doing a bit of head scratching.

    Brandon Rinehart, a young miner from Antioch, California, was
    convicted in February 2013 of dredging without a permit in a
    Plumas County court. He, and his attorney, James Buchal, argued
    they should be able to present their defense, which was federal law
    preempted the state dredging ban.

    The judge in Plumas County refused to allow the Rinehart to
    present his defense and convicted him. Rinehart appealed and the
    appeals court agreed he should have been allowed to present a
    defense. Rather than allowing a trial, the State then moved to have
    the Supreme Court overturn a decision which essentially says
    Rinehart should have a fair trial.

    Follow? OK, one more time, the State is arguing they have the
    authority to deny Rinehart a fair trial, and by not allowing the case
    to go back to the trial court they have denied him this.

    The Supreme Court isn’t a trial court. No defense has been
    presented, no experts called, no arguments heard as a matter of law.
    We’re looking at a very peculiar case. The Rinehart case scares the
    hell out of the State.

    It scares them for a lot of reasons, but perhaps the most
    important is they can’t allow a 30 years kid from Antioch to take on
    the State and win. If he wins he has overturned not just one law, but
    three laws duly passed by the elected representatives. He is not just
    hand slapping the State, he’s slapping back forty years of unchecked
    regulatory zeal.

    What’s peculiar about the Rinehart case is all seven justices
    agreed to hear the case. Why is that peculiar? Rinehart never got his
    trial. Typically for a case to go the state Supreme Court there is a
    trial record. Rinehart was never allowed to present his defense,
    experts weren’t called, testimony wasn’t taken.”

    Is it unusual for the Supreme Court to rule on a case that has NEVER BEEN TRIED?
    Brandon Rinehart has not had his day in court, so why is the Supreme Court interested at this
    point in the process? I am curious what your response is? Enlighten me.

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About Richard

Richard Frank is Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center. From 2006-2010, …

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About Richard

Richard Frank is Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center. From 2006-2010, …

READ more

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