Departure of E.T. (the ExtraTerritorial)
The Tenth Circuit dispels extraterritoriality attacks on state renewable energy regulations.
Extraterritoriality is a weird, one might almost say alien, incursion into judicial doctrine under the dormant commerce clause doctrine. The DCC, as it's familiarly called, prohibits discrimination against interstate commerce and undue burdens on that commerce. But industry has been attacking a wide range of state renewable energy laws under a doctrine relating to extraterritoriality. Conservative opponents of renewable energy regulation argue that any regulation...
CONTINUE READINGTragedy of the Commons–California Drought-Style
State Farmers Planting New Almond Orchards Despite Critical Water Shortages
Traveling through California's drought-striken San Joaquin Valley repeatedly over the past year, I've been surprised and disheartened to see that Valley farmers continue to convert their agricultural fields to newly-planted almond orchards. (My anecdotal observations have been confirmed by various recent press accounts.) This development is a striking, current example of Garrett Hardin's Tragedy of the Commons. Hardin was an ecologist and microbiologist whose ...
CONTINUE READINGPetroglyphs? We Don’t Need No Stinkin’ Petroglyphs!
So says the House Natural Resources chairman.
Henry Ford famously said “history is bunk.” A House committee chair went him one better today, dismissing prehistoric art with the term “bull crap.” Now that I’ve got your attention, here’s a little background. President Obama today designated a new 704,000 acre Basin and Range National Monument under the Antiquities Act. This immediately set off a storm of protest in Congress. E&E News provides a priceless quote from House Natural Resources Chairman...
CONTINUE READINGSacramento Judge Halts California Regulator’s Efforts to Impose Water Cutbacks
Court Rules Water Board's Administrative Process Violates Water Users' Due Process Rights
A Sacramento judge has thrown a wrench into the California State Water Resources Control Board's efforts to impose water cutbacks on several of the state's senior water rights holders. In a July 10th order, Superior Court Judge Shelleyanne Chang ruled that the Water Board's administrative process, designed to implement drought-based water reductions, violates the due process rights of several water and irrigation districts to whom the Board issued cutback orders. Jud...
CONTINUE READINGClem Shute to be honored by California bar
Boalt alum will follow Joe Sax as second recipient of environmental law lifetime achievement award
This just in, courtesy of Shute, Mihaly & Weinberger -- Clem Shute (Boalt '64) will be honored this fall with the second Award for Lifetime Contribution to the Field of Environmental Law. (The first Award, of course, went to the late Joe Sax.) Clem richly deserves this prestigious award. He has been a major player in California environmental law and policy since the dawn of the environmental era. As an Assistant Attorney General for California, he helped build...
CONTINUE READINGCould a Riparian Conservation Network increase the ecological resilience of public lands?
A new article suggests river corridors could leverage existing policies to build habitat connectivity
As we try to protect biological diversity for the future, a perpetual challenge is ensuring that the strategies we adopt today will continue to work in the face of changing conditions. How can we design conservation approaches that will be resilient in the face of environmental challenges that will only become more severe in coming years? In a newly published article, we* ask whether our network of rivers might provide a solution. We examine the possibility that a Ri...
CONTINUE READINGA Water Rights Database For California’s Future
A proposal to modernize information for management of water resources
In April, a group of us (Richard Roos-Collins, Michael Kiparsky, Nell Green Nylen, Michael Hanemann, and Holly Doremus) wrote a document arguing for the need to develop a more complete and functional source of legal information on California’s water rights. Since then, this proposal has been circulated widely among the California water community. In the spirit of broadening the discussion of these ideas, we post the original text below. The full document contains th...
CONTINUE READINGIndustry Will Try To Keep The Clean Power Plan From Taking Effect Pending Court Decision on Its Legality
Lobbyist Spin Has Begun
It's no secret that the minute the Clean Power Plan is finalized (expected in the next couple of months), industry will sue to invalidate it. But before a court decides whether the Plan -- which is designed to cut carbon emissions from the power sector by 30 percent -- is legal under the Clean Air Act, industry will try to keep it from ever going into effect. In legal parlance, industry will seek an order from the D.C. Circuit Court of Appeal to "stay" the impleme...
CONTINUE READINGMichigan v. EPA: Policymaking in the Guise of Statutory Interpretation
In Michigan v. EPA, the majority followed its own policy views, not those in the statute.
The majority opinion by Justice Scalia has gotten most of the attention. Most notably, he wrote that "[o]ne would not say that it is even rational, never mind "appropriate", to impose billions of dollars in economic costs for a few dollars in health or environmental benefits." Indeed, "[n]o regulation is 'appropriate' if it does significantly more harm than good." Later in the opinion, Justice Scalia again faulted the agency's failure to "ensure that the costs are no...
CONTINUE READINGInjecting Earthquakes
The scientific evidence shows a clear link between injection wells and earthquakes. The legal consequences are less clear.
A recent study of injection wells and earthquakes got a lot of press, but the reports missed an important nuance. The study, published in the June 19 edition of Science, found a definite connection between well injection and earthquakes. But there was an interesting wrinkle: "The scientists found that disposal wells were 1.5 times more likely to be associated with earthquakes, although the region contains far more enhanced recovery wells. The link was strongest ...
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