Law Commons^™

The Future Of The Safe Rule And Achieving More Climate-Friendly Cafe Regulations, Maximo Lacerca-Desrosiers

Golden Gate University Environmental Law Journal

On April 30, 2020, the Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”) issued a final rule called the “Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2026 Passenger and Light Trucks” (“SAFE Rule”) to amend the Corporate Average Fuel Economy (“CAFE”) ratings. CAFE standards are regulations first enacted nearly fifty years ago to promote greater fuel efficiency in car manufacturing through a system of incentives and penalties. While the CAFE standards have been revised many times over the years, the SAFE Rule rolled back the more stringent 2012 CAFE standards that sought to align fuel …

Is An Injunction The Right Vehicle To Combat Climate Change?: Greenwashing And The Importance Of Increasing Consumer Choice In Fossil Fuel Alternatives, Caesaria Kim

Golden Gate University Environmental Law Journal

In the face of the climate crisis, people are increasingly interested in more sustainable and eco-conscious alternatives to fossil fuels. As a result, companies associated with fossil fuel industries are under pressure to conform to this trend among consumers by marketing themselves as leaders in developing sustainable alternatives. However, instead of changing their practices in an effort to mitigate climate change, some companies only promote the appearance of change by engaging in “greenwashing.” Greenwashing is defined as the “practice of misleading people to believe that a company is engaging in virtuous practices so as to cover up poor practices” or …

A Clean Water Act, If You Can Keep It, Sean G. Herman

Golden Gate University Environmental Law Journal

The Clean Water Act has traveled a successful but tortuous path. From combustible beginnings on the Cuyahoga River; through the Lake St. Clair wetlands; to reservoirs near the Miccosukee; and eventually discharged (or “functionally” discharged) off the Maui coast. With each bend, the nearly fifty-year-old Act has proven to be not just resilient, but among our most successful environmental laws. Much of that success stems from an effective enforcement structure that focuses more on treating pollutant sources rather than just impaired waters. The text creating that structure has largely remained untouched by Congress for decades.

This article begins by posing …

Trade And Environment In Nafta’S Replacement: An Old Gas Guzzler Gets A Paint Job, Geoffrey Garver

Golden Gate University Environmental Law Journal

The North American Free Trade Agreement (NAFTA)2 is now history, and, depending on where you are, as of July 1, 2020, the Canada- United States-Mexico Agreement (CUSMA) in Canada, the United- States-Mexico-Canada (USMCA) in the United States, or the Tratado entre M´exico, Estados Unidos y Canad´a (T-MEC) is in force. The renegotiation of NAFTA fulfilled candidate Donald Trump’s promise to scrap or renegotiate NAFTA in order to protect and restore United States jobs and industrial capacity and increase economic growth, themes that consistently helped define his trade agenda politically as President. But what about the environment? When NAFTA was finalized …

Safeguarding Water Quality In Federal Licensing Decisions: California’S Response To Recent Constraints On Clean Water Act Section 401 Certification Authority, Kristin Peer, Stacy Gillespie

Golden Gate University Environmental Law Journal

Pursuant to Clean Water Act section 401, state water quality certification authority to regulate federally-licensed energy projects has been relatively well settled for decades. Long-standing precedents from the U.S. Supreme Court, other federal courts, the U.S. Environmental Protection Agency (“U.S. EPA”), and implementation of certification authority by the states, have repeatedly reinforced the cooperative federalism principle of the Clean Water Act: state section 401 certification authority is essential to preserve the states’ ability to address a wide range of pollution problems caused by federally-permitted energy facilities. In recent years, however, state section 401 certification authority has come under siege in …

Front Matter

Golden Gate University Environmental Law Journal

Front Matter includes Masthead, faculty members, administration, and Table of Contents.

Green Garbage: A State Comparison Of Marijuana Packaging And Waste Management, Kevin Dalia

Golden Gate University Environmental Law Journal

This article provides a brief historiography of legislative prejudice against marijuana to provide greater context as to why marijuana laws are strict, excessive, and improperly motivated, leading to environmental concerns that could be mitigated. The article compares waste management, packaging, and labeling regulations in the ten states that have legalized commercial marijuana. This comparison allows us to explore two sides of the same regulatory coin, showing examples of excessive and environmentally harmful regulations on one side, while highlighting regulations that should serve as exemplars for future legislation on the other. Also included are some of the industry practices and community …

Hostile Environments: Public Health And Environmental Impacts Of The Trump Administration’S Attempted Reversal Of Sex Stereotyping As Sex Based Discrimination, Jude Diebold

Golden Gate University Environmental Law Journal

In 2013, Aimee Stephens, an employee of six years at R.G & G.R. Harris Funeral Homes, informed her employer she is transgender, and would begin living as a woman full time. The employer disbelieved Stephens’ gender identity; they viewed Stephens as male, and in violation of their sex specific dress code for men, which requires men to wear button downs and ties, and women to wear skirts and heels. Two weeks after informing her employer of her true gender identity, Harris Funeral Homes fired Stephens, stating that her refusal to abide by the sex specific dress code as a “biological …

Vertical Consistency In The Climate Change Context, Susan M. Bradford

Golden Gate University Environmental Law Journal

This paper explores the role of general plan consistency in the context of climate change. As California’s statewide response to global warming continues to evolve, new statutory and regulatory requirements are changing the scope of local land use planning, both directly and indirectly. The San Diego case provides one example of how this changing legal framework has led to new kinds of land use conflicts over competing strategies for climate mitigation. The growing imperative for local governments to rethink land uses in response to climate change could signal a larger role for general plan consistency as a lever for enforcing …

Proceedings Of The 2019 California Water Law Symposium Panel Organized By Ggu School Of Law: Sgma And Interconnected Groundwatersurface Water, Kevin O'Brien, Richard Frank, Andy Sawyer, Alletta Belin, Paul Stanton Kibel

Golden Gate University Environmental Law Journal

California’s Sustainable Groundwater Management Act (“SGMA”) has been the topic of many discussions since its enactment in 2014. The overarching goal of SGMA is to achieve sustainable groundwater basins through management plans “without causing undesirable results.” Considering the importance and magnitude of this task, it comes as no surprise that SGMA was the theme for the February 2019 California Water Law Symposium, held at the University of California (“UC”), Hastings College of Law in San Francisco. For the Symposium, Golden Gate University School of Law (“GGU”) students gathered a panel of experts to explore the relationship between groundwater plans and …

The Animal Welfare Act Is Lacking: How To Update The Federal Statute To Improve Zoo Animal Welfare, Rebecca L. Jodidio

Golden Gate University Environmental Law Journal

Visiting the zoo is a beloved national pastime — American zoos attract 183 million people annually. For many Americans, zoos provide the first, and sometimes only, opportunity for individuals to be in the presence of animals outside of domesticated cats and dogs. However, for the animals themselves, zoos can cause suffering.

Two philosophies support the protection of wild animals in captivity: an anthropocentric and ecocentric view. According to the former, anthropocentric view, wild animals hold an extrinsic value and when they cease to be valuable to humans, or conflict with our other values, their interests can be sacrificed. The latter, …

Federalism And Water: The California Experience, Clifford T. Lee

Golden Gate University Environmental Law Journal

The struggle between California’s water plentiful north and the water deficient south has marked water conflict in the state for the last century. This struggle has played out in repeated disputes over the operation of the federal Central Valley Project (“CVP”) and the California State Water Project (“SWP”), the two inter-basin water conveyance facilities that deliver water through-out the state. Commencing in the 1920’s and 30’s with the enactment of California’s area of origin statutes and extending in more recent times to federal and state environmental laws, a complex set of legal requirements constrain the CVP and the SWP’s ability …

Why It Is Time For A “Calfire Divorce”: The Case For Establishing An Independent Forest And Resource Management Agency To Secure Healthy Forests In California, Richard A. Wilson, Sharon E. Duggan

Golden Gate University Environmental Law Journal

It is time to remove governance of California’s core sustainable forest management mandate from CalFire to allow it to focus on its overwhelming fire agency obligations. In the absence of adequate and dedicated funding and resource personnel, CalFire is not satisfying California’s forest resource management goals and objectives. After decades of decline, California must renew its fundamental commitment to sustainable forest management. The governance of forest resource management requirements, as set forth in the Z’Berg Nejedly Forest Practice Act of 1973,10 should be transferred to another agency, the focus of which is resource and land conservation. California needs one dedicated …

Front Matter

Golden Gate University Environmental Law Journal

Includes Masthead, Table of Contents, School of Law Faculty, and Administration.

The Right To Flourish, Regenerate, And Evolve: Towards Juridical Personhood For An Ecosystem, Nicholas Bilof

Golden Gate University Environmental Law Journal

This article will examine two at-risk American rivers through a comparison of the different legal approaches brought by the citizens and conservation groups fighting to protect them. Through analysis of the two lawsuits, this article will highlight the flaws of the traditional approach, and introduce a novel proposal for a shift in the lens under which nature is considered in American jurisprudence.

Part I will survey the Suwannee River and a citizen suit against a poultry-packing plant accused of illegally fouling its waters through repeated violations of an EPA-issued permit governing wastewater discharges. This suit represents the congressionally-created traditional avenue …

Taking A Breath: Lessons For The Port Of Oakland From The Clean Trucks Program At The Ports Of Los Angeles And Long Beach, Julia Chernova

Golden Gate University Environmental Law Journal

This article first discusses and explains the laws that govern air quality at the major California ports. Then, it explores the Clean Truck Program (CTP) implemented by the ports of Los Angeles and Long Beach to improve port-related air quality and address public health issues in low-income areas caused by drayage trucks emissions. Next, it discusses a comparison of truck air pollution regulations at the ports of Los Angeles, Long Beach, and Oakland. Finally, this article argues that it is necessary for the port of Oakland to adopt measures used by the ports of Los Angeles and Long Beach to …

Powering Mary Jane: Marijuana And Electric Public Utilities, Ryan Dadgari

Golden Gate University Environmental Law Journal

The discourse surrounding legalizing marijuana use and cultivation is full of political, legal, and economic voices. While some discussions address the high electricity consumption of marijuana grow operations and their effects on the energy grid, few—if any—discuss whether or not public utilities could be held federally liable for supplying power to marijuana grows and incentivizing growers to use more energy efficient methods. Just as banks, doctors and lawyers could be at risk for providing their services to this emerging industry, so too could public utilities. In some cases, utilities that refuse to provide service to state-legal marijuana grow operations experience …

A Battle Over Oysters: Drakes Bay Oyster Co. V. Jewell And Its Aftermath, Elena Idell

Golden Gate University Environmental Law Journal

This comment summarizes the saga of Drakes Bay Oyster Company (DBOC), located in Point Reyes National Seashore (Seashore) in Marin County, California, just north of San Francisco. Owned and operated by the Lunny family, DBOC battled the National Park Service (NPS) in an attempt to compel the NPS to renew its special use permit (SUP). The SUP allowed DBOC to operate within Point Reyes National Seashore. This conflict pitted environmentalists against each other. Supporters of local, sustainable agriculture were on one side of the environmental debate. Traditional environmentalists, representing the other side, advocated for returning uninhabited areas to an untouched …

Cherishing The Coast: California Goes Long, Ariel Rubissow Okamoto, Nate Seltenrich, Lisa Owens Viani, Jonathon Gurish

Golden Gate University Environmental Law Journal

This article focuses on the California Coastal Conservancy. It explores the Conservancy’s uniquely proactive approach to coastal zone management through both oral history (collected via telephone interviews) and literature research. In general, being proactive has involved the Conservancy in activities such as identifying coastal areas or wildlife habitats in need of protection; developing plans and priorities for acquisition or restoration; assembling and supporting local stewards and partners; leading and shepherding collaborative projects to fruition; and often providing significant funding.

Front Matter

Golden Gate University Environmental Law Journal

Front Matter includes Masthead, list of faculty and staff, and Table of Contents.

The Damming Of Nature: How China Is Expanding Its Dam Infrastructure And Potential Negative Downstream Effects On Fisheries Of The Yaluzangbu-Brahmaputra River, Stephanie M. Smith

Golden Gate University Environmental Law Journal

In light of the critical need to shift from fossil fuels as the primary source of energy, China continues to plan expansive hydropower generation projects on the Yaluzangbu-Brahmaputra River, one of the few remaining clean and biologically diverse river basin ecosystems in China. In March 2011, the Chinese National People’s Congress approved the Twelfth Five-Year Plan (Plan) for national development with specific themes and targets within the economic and social arenas. The Plan has a specific focus on “higher quality growth,” which is defined in the Plan as addressing the issues of renewable energy and sustainability. Specifically, the Plan addresses …

Reducing Overdraft And Respecting Water Rights Under California's 2014 Sustainable Groundwater Management Act: A View From The Kern County Farming Sector, Ashley Mettler

Golden Gate University Environmental Law Journal

California groundwater is an invaluable drought reserve for agricultural farmers. With historically dry conditions affecting the annual water supply, precious groundwater has become one of the last water resources available to growers in the Central Valley. The devastating drought effects have necessitated the use of groundwater to help offset the surface water deprivation, and the increase in groundwater usage has become a source of growing conflict among water users and environmentalists across the state.

In 2014, the California Legislature introduced the Sustainable Groundwater Management Act (SGMA), opening the door to a new era of water management and new challenges for …

Conflicting Theories At Play: Chemical Disclosure And Trade Secrets In The New Federal Fracking Regulation, Melanie Mccormick

Golden Gate University Environmental Law Journal

Currently, there is no federal law regulating fracking. Instead, fracking is only regulated under state law. Public disclosure requirements vary widely from state-to-state. Some states have no disclosure requirements at all. Of the states that do, most have included trade secret exception provisions allowing oil and gas companies to refuse to disclose the chemicals they use in fracking. More importantly, very few state laws that have trade secret exceptions also require that the company provide any substantiation that the trade secret is legitimate. Without some kind of uniform factual substantiation requirement, what is to keep oil and gas companies from …

Climate Resilience Metrics – Putting Them To Work In California, Alexandra R. Leumer

Golden Gate University Environmental Law Journal

Building on climate adaptation goals defined in climate policy, this paper identifies examples of performance-based metrics to measure and track the effectiveness of climate risk reduction and resilience actions in California in order to inform developing state policy and guidance on resilience metrics. After a brief review of California’s climate goals, a set of guiding principles are proposed for metric development. An overview of the current discourse on resiliency metrics follows and the paper concludes with a set of recommendations for the state as it moves forward in the development of metrics.

Ten Regulatory And Cultural Principles That Improve California's Drought Planning, Chris Shutes

Golden Gate University Environmental Law Journal

Forty-one of the past hundred years in California have been part of multi-year drought sequences. The 2012–2015 drought was one of the worst of the last hundred years, and there are increasing concerns that climate change will increase the frequency of drought in California. This article deals with ten regulatory and cultural principles developed in the last decade that are becoming embedded in drought planning in California.

Sweating The Small Stuff: Managing Fisheries And Fostering Marine Ecosystem Resilience In The Face Of Climate Change, Andrea Arnold Treece

Golden Gate University Environmental Law Journal

Since 2013, thousands of emaciated California sea lion pups have washed ashore along the United States West Coast (“U.S. West Coast” or “West Coast”), leading concerned scientists and members of the public to wonder what’s happening off our shores. In March 2016, researchers concluded that California sea lions have been suffering from mass malnutrition because their main food sources, sardine and anchovy, are scarce. Why are these fish so scarce? Scientists say that the combination of unusually warm ocean conditions and fishing for sardine and anchovy has depleted the food supply for these animals. And sea lions are simply the …

In This Edition, Paul Stanton Kibel, Phoebe Moshfegh

Golden Gate University Environmental Law Journal

Over the past two decades, considerable attention has been given to the subject of climate mitigation, of the development of laws and policies to reduce the amount of greenhouse gas emissions that are contributing to global warming. More recently, in addition to climate mitigation, attention has turned to the question of climate adaptation, of the development of law and policies that respond to the environmental consequences of climate change. In this Pacific Region Edition of the Golden Gate University Environmental Law Journal, titled Climate Resiliency – California Prepares for an Altered Environment, we develop this theme of climate adaptation. Our …

Table Of Contents

Golden Gate University Environmental Law Journal

No abstract provided.

Masthead

Golden Gate University Environmental Law Journal

No abstract provided.

The Golden Rule* Of Water Management, Russell M. Mcglothlin, Jena Shoaf Acos

Golden Gate University Environmental Law Journal

California follows a “Golden Rule” of water management, which requires management of the state’s water for maximum beneficial use. This principle is codified at Article X, Section 2 of California’s Constitution. However, the Golden Rule has a qualifier—an asterisk—which requires that water management “preserve water right priorities to the extent those priorities do not lead to unreasonable use.” We call this qualifier the Mojave Rule, named after the California Supreme Court’s decision in City of Barstow v. Mojave Water Agency. The Golden Rule* is the foundation of water management in California and the Mojave Rule is the key qualifier. …