Environmental Law

Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA – Note by Ha Chung

Although CEQA plays an important role in protecting communities from significant adverse environmental impacts, its self-executing nature allows it also to be used as a tool to halt or impede development for the wrong reasons. While many CEQA disputes are based on legitimate environmental concerns, CEQA litigation is also used to prevent development for discriminatory or nonenvironmental reasons. CEQA litigation is an attractive vehicle for this purpose due to overly broad standing requirements, unpredictable judicial results, extreme remedies, and attorney’s fees awards. Projects impeded by CEQA litigation include multifamily residential projects, homeless housing, health clinics, youth centers, and a multitude of other quasi-public uses. Since CEQA lacks uniform standards, local governments and developers must resort to costly overcompliance and guess work when confronted with the threat of litigation. To remedy the problem of CEQA abuse and unpredictability, this Note proposes moving away from judicial enforcement of CEQA and creating a state or regional agency dedicated to regulation, enforcement, and adjudication of CEQA.

Part I of this Note reviews CEQA processes, the history of exclusionary and discriminatory land use policies, and evidence of CEQA’s misuse for discriminatory and nonenvironmental reasons. Part I of this Note explores why CEQA is such an attractive tool for people to oppose development projects for exclusionary or nonenvironmental reasons and concludes that the judicial system is unsuitable for primarily enforcing CEQA. Part II proposes a dedicated agency that would handle adjudication, enforcement, and legislation under CEQA and discusses how the agency may fit into the broader environmental review process.

The Climate Crisis Is a Human Security, Not a National Security, Issue – Postscript (Comment) by Maryam Jamshidi

This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change. While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.

Part I of this Article briefly examines calls to treat climate change as a national security issue, specifically from within the grassroots climate change movement, and canvasses the benefits of doing so. Part II explores the downsides to securitizing climate change and demonstrates how a human security approach resolves these concerns. Overall, this Article accepts the view that a security-oriented attitude towards climate change is vital to meaningful action on the issue. It takes the position, however, that this approach must both align with liberal democratic values and facilitate solutions for mitigating the climate crisis. These changes to the prevailing security paradigm are unlikely to come from the state itself, which is invested in maintaining a state-centered view of security. It must, instead, be led by civil society—particularly the climate change movement, which has the most incentive to take action on these issues.

Just Transitions – Article by Ann M. Eisenberg

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main rhetorical usages of “just transition.” I argue that legal scholars should recognize it as a term of art that evolved in the labor movement, first known as a “superfund for workers.” In the climate change context, I therefore define a just transition as the principle of easing the burden decarbonization poses to those who depend on high-carbon industries. This definition provides clarity and can help law engage with fields that already recognize just transitions as a labor concept.

Easy Come, Easy Go: A Guide to California Cap-and-Trade Spending – Note by Jonathan Kintzele

At the time of this writing, over $1.4 billion of unallocated polluter regulatory fees collect dust in a special government bank account as California agencies labor to figure out how to spend it, or more accurately, how to spend it fast enough. While state agency pockets smolder with anticipation, one inconvenience stands in their way: the cash must be used for programs or developments that reduce greenhouse gas (“GHG”) emissions. Thus, as lawmakers toil through the night to engineer new and creative spending proposals—ink dripping from the gold-embroidered parchment—the words “emission reductions” continue to get lost between nouns, verbs, exclamations points, and dollar signs.

Simply put, putting a price on carbon emissions has never been more lucrative for the State of California. Polluter fees not only fund the State’s climate change agenda, but also serve as the fiscal linchpin of the Governor’s statewide budgetary plan, from affordable housing development subsidies to the State’s herculean $64 billion bullet-train project. California has never been a state fearful of taking controversial positions on private property rights and protecting the public welfare, but with cap-and-trade, the entire world is watching.

California is the twelfth largest GHG producer in the world and the original American cap-and-trade pioneer. On January 1, 2013, the state implemented the most complex market-driven environmental regulatory scheme of its kind ever put into action. California’s cap-and-trade program was designed to be a model which not only other states in the western United States could follow, but one that could eventually be replicated in developed economies across the world in the global movement to reverse centuries of unrestrained GHG pollution. As a bona fide experimental prototype, the importance of getting the system right cannot be overstated. However, as a concept-in-progress that regulates the sixth largest economy in the world—greater than the likes of Italy, Russia, and India—understanding its contours and evolving mandates could not be more important to the businesses and industry practitioners that are subject to its control. As such, this Note will analyze the practical components of the cap-and-trade program, assess the potential legal risks of current spending trends, and ultimately recommend additional, apt, and effective appropriation vehicles for cap-and-trade revenue.

Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture – Note by Kristen L. Johns

Fish might be considered “brain food,” but there is nothing smart about the way the United States currently manages its seafood production. Although the U.S. government has long promoted the health benefits of products from the sea—even urging Americans to double their seafood intake—it has fallen far behind in developing a domestic source for this seafood. Currently, the United States relies on an almost primitive method for domestic seafood production: taking animals found naturally in the wild. However, this approach is no longer sustainable: most federally managed capture fisheries are either stable or declining, with forty-eight currently overfished, and forty subject to overfishing in 2010. What seafood the United States does not take from its own fisheries it imports; in 2011 the United States imported as much as 91 percent of its seafood supply. Fortunately, there is a way for the United States not only to ease the pressure on traditional fisheries—allowing them to recover—but also to provide a significant domestic source of seafood products: through the development and promotion of its domestic offshore aquaculture industry. However, this industry should not be allowed to expand free from regulation, as offshore aquaculture may have serious consequences for both marine and human environments.

LEEDing in the Wrong Direction: Addressing Concerns with Today’s Green Building Policy – Note by Kaleb Keller

There is a movement afoot in this country to “go green,” and part of this movement is in green building. Green building is summarized as “the practice of increasing the efficiency of buildings and their use of energy, water and materials, and reducing building impacts on human health and the environment through better siting, design, construction, operation, maintenance and removal.” So, why are we seeing a move to “go green” in building? According to a 2009 study commissioned by the U.S. Department of Energy (“DOE”), in 2006, buildings in the United States accounted for 39 percent of primary energy consumption, 72 percent of all electricity consumed, and, in 2005, over 10 percent of total water used domestically. Buildings in the United States accounted for more energy use than the entire U.S. transportation sector in 2006 and produce more greenhouse gases than “any other country in the world except China.” Any large-scale attempt to reduce U.S. energy consumption must therefore involve greening building practices.

Climate Change and Future Generations – Article by Richard L. Revesz & Matthew R. Shahabian

Efforts to reduce greenhouse gases and control climate change implicate a wide range of social, moral, economic, and political issues, none of them simple or clear. But when regulators use cost-benefit analysis to evaluate the desirability of climate change mitigation, one factor typically determines whether mitigation is justified: the discount rate, the rate at which future benefits are converted to their present value. Even low discount rates make the value of future benefits close to worthless: at a discount rate of three percent, ten million dollars five hundred years from now is worth thirty-eight cents today. Thirty-eight cents is therefore more than we would be willing to pay now to save a life in five hundred years. Discounting over very long periods, like in the context of climate change, has long perplexed economists, philosophers, and legal scholars alike. This Article evaluates the four principal justifications for intergenerational discounting, which are often conflated in the literature. It shows that none of these justifications support the prevalent approach of discounting benefits to future generations at the rate of return in financial markets and, more generally, that discounting cannot substitute for a moral theory setting forth our obligations to future generations.

The Western Climate Initiative: Cross-Border Collaboration and Constitutional Structure in the United States and Canada – Note by Jeremy Lawrence

Scientists have reached a consensus that global warming is a looming threat. A surprisingly large number of national politicians are lagging behind. The U.S. federal government, though making some strides toward reducing national greenhouse gas (“GHG”) emissions, has only addressed the problem in a piecemeal and halting fashion. In its place, the states have taken the lead. In Canada, the provinces have likewise taken the initiative in the face of federal inaction.

In light of these locally driven efforts, it was only a matter of time before states and provinces began to collaborate in their efforts. The first of these cross-border efforts originated in 2007, when the Western Climate Initiative (“WCI”), originally a GHG reduction partnership between a number of governors in the western United States, added British Columbia and Manitoba to its ranks.

But there is an apparent barrier to such cross-border collaboration. As the U.S. Supreme Court noted in its most recent case on global warming, “When a State enters the Union, it surrenders certain sovereign prerogatives. . . . [I]t cannot negotiate an emissions treaty with China or India.”