Ecology Law Currents

Student Review of Selected Panels at the 2012 Water Law Symposium "Water and Growth: The Imperative for Sustainable Approaches to Uncertainty"

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All review authors attended the 2012 Water Law Symposium hosted at the University of California, Berkeley, School of Law on January 21, 2012. The panel reviews are based on their own observations and reflections. No citations should be attributed directly to the panelists themselves.

Aviation and Emissions Trading in the European Union: Pie in the Sky or Compatible with International Law?

Stephanie Switzer*

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In 2003, the then European Community[1] adopted Directive 2003/87/EC, establishing a scheme for trading allowances of greenhouse gas (GHG) emissions.[2] Directive 2003/87/EC mandated the establishment of an emissions trading scheme (ETS) within the European Community “to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.”[3] The preamble to Directive 2003/87/EC states that the establishment of such a scheme would contribute to the achievement of the European Community’s and its Member States’ commitments under the Kyoto Protocol.[4] In this regard, the Protocol is a mechanism enacted by the United Nations Framework Convention on Climate Change[5] to promote reductions in emissions associated with climate change. The Protocol entered into force in 2005 and requires participating Annex 1 countries—in effect, developed countries—to reduce certain GHG emissions by 2012 to at least 5 percent below 1990 levels.[6] The European Union pledged to reduce greenhouse gas emissions listed in Annex A of the Kyoto Protocol to 8 percent below 1990 levels in the period 2008 to 2012.[7]

Photo credit to shyb.

Because of the European Union’s emissions reduction pledge, the ETS is considered “a cornerstone of European policy on climate change”[8] and is the world’s largest such scheme.[9] The ETS did not initially include emissions from aviation activities; however the omission of aviation activities from the ETS eventually came to an end on January 1, 2012 when Directive 2008/101/EC, which amended Directive 2003/87/EC,[10] entered into force.[11].The extension of the ETS to aviation emissions requires aviation operators to surrender emission allowances equivalent to the total number of emissions produced the preceding year, and applies penalties to operators who do not comply with this obligation.[12] Initially, 85 percent of emission allowances will be distributed freely with the remaining 15 percent auctioned, with a reserve fund of allowances being made available to new market entrants.[13]

Seawater Desalination: Climate Change Adaptation Strategy or Contributor?

Angela Haren Kelley*

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While droughts and water supply challenges have plagued California for decades, climate change will increase the strain on California’s water management system.[1] Seawater desalination—the process of removing salt and other minerals from seawater—is often hailed as the solution to the state’s water supply challenges.[2] However, proposals to build seawater desalination plants, which demand enormous quantities of energy, could be a shortsighted fix that will ultimately exacerbate climate change due to corresponding greenhouse gas (GHG) emissions. This article explores seawater desalination and alternative strategies for California to adapt to climate change, and concludes that an effective adaptation approach will require strategies to reduce GHG emissions.

Seawater desalination plant in South Korea. Photo credit to roplant.

Student Review of Selected Panels at the Thelton E. Henderson Center for Social Justice 2010 Symposium “Empowered Partnerships: Participatory Action Research for Environmental Justice”

Anna Lund, Michelle Ben-David, and Ubaldo Fernandez*

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The following articles are student responses and observations of a selected few panels at Berkeley Law’s 2010 Symposium “Empowered Partnerships: Participatory Action Research for Environmental Justice” hosted by the Thelton E. Henderson Center for Social Justice and co-sponsored by Students for Economic and Environmental Justice at UC Berkeley School of Law; the Center on Race, Poverty & the Environment; Communities for a Better Environment; Asian Pacific Environmental Network; West Oakland Environmental Indicators Project; ¡PODER! - People Organizing to Demand Environmental & Economic Rights; California Rural Legal Assistance, Inc.; Greenaction for Health and Environmental Justice; The Pacific Institute; Environmental Studies Institute at Santa Clara University; Cal Corps at UC Berkeley; La Raza Law Students Association at UC Berkeley School of Law; Berkeley La Raza Law Journal; Ecology Law Quarterly; Central Valley Air Quality Coalition; California Law Review; California Environmental Justice Alliance; and the Women of Color Collective at UC Berkeley School of Law.

Implementing SB 375: Promises and Pitfalls

Heather Haney*

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Introduction

On September 30, 2008, California passed the Sustainable Communities and Climate Protection Act, or SB 375. The legislation was the first in the country to link land use, transportation, and housing planning with global warming. The nation’s attention was once again focused on California’s efforts to address global climate change through innovative regulation.[1] Three years before, the legislature had passed The Global Warming Solutions Act of 2006, or AB 32, which requires the state to reduce greenhouse gas (GHG) emissions to 1990 levels no later than 2020.[2] Since passenger vehicles account for approximately thirty percent of the state’s total emissions and their numbers have increased drastically from 1990 levels,[3] it was generally accepted that without improved land use and transportation policies, California would not be able to achieve the goals of AB 32.[4] The general concept is that movement away from low-density suburban “sprawl” and toward higher-density, transit-oriented development that is less dependent on the private automobile would lead to lower GHG emissions.

SB 375 has three goals: (1) to use the regional transportation planning process to help achieve the goals of AB 32; (2) to provide possible streamlining of California Environmental Quality Act (CEQA) procedures for residential projects, helping achieve the GHG emissions reduction goals; and (3) to coordinate the regional housing needs allocation process with the regional planning process. It builds upon existing regulatory structures and seeks to incentivize more compact development through project funding and process streamlining.

This Article will discuss the legislative history behind SB 375, the current language of the statute, what compromises were made in developing its final language, what potential obstacles may arise in implementing the law, and suggestions on additional legislative and administrative steps that should be taken to practically achieve its goals.

Lessons Already Learned: An Analysis of Waxman-Markey under Current WTO Case Law

Gregory E. Wannier*

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Introduction

In 2009, the House of Representatives, responding to rising concerns over anthropogenic contributions to climate change, passed the first major piece of climate legislation in U.S. history.[1] This bill, the “American Clean Energy and Security Act of 2009” (ACESA), would cap U.S. carbon emissions and establish a national carbon market where regulated parties trade carbon dioxide emissions rights.[2] However, because many in the developed world fear that carbon markets will hurt domestic industries and lead to job losses and “leakage” of carbon emissions to less-regulated markets in the developing world,[3] ACESA imposes severe quality controls on the importation of energy-intensive manufactured goods that face the highest prospective carbon reduction costs.[4] This provision could dramatically affect trade, and thus could be challenged under the World Trade Organization (WTO), an intriguing possibility given the WTO’s controversial status in the trade community.[5]

 
International shipping containers at the Port of Oakland, Oakland, California.  Photo courtesy of Nell Green Nylen.
 

This Article takes ACESA through a theoretical WTO review, ultimately finding that ACESA would probably pass WTO review with some modifications. WTO consideration of ACESA could serve as an indication of how future unilateral action can be effectively and legally taken. However, the lesson from this analysis goes further; WTO retains the ability to overturn environmental protections, and its decisions are respected (if not always appreciated or adhered to) by the international community. As countries negotiate a balance between economic fears in the developed world and economic growth in the developing world, they may find that norms established and enforced by the WTO provide useful insights.

Student Review of Selected Panels at the Berkeley Law 2010 Environmental Justice Symposium

Kara Cook, Maria Stamas, and Meredith Wilensky*

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The Role of the Environmental Justice Lawyer

PANELISTS:

Kara Brodfehrer, Attorney, California Rural Legal Assistance, Inc.;
Alegria De La Cruz, Directing Attorney, Center on Race, Poverty, and the Environment;
Helen Kang, Director, Golden Gate University, Environmental Law and Justice Clinic;
Phoebe Seaton, Attorney, California Rural Legal Assistance, Inc.

The forum discussion on February 16, entitled “The Environmental Justice Movement: History & Skills Every Lawyer Should Know,” was a great kick off to the Sixth Annual Environmental Justice Symposium. For aspiring lawyers with very little experience or background in Environmental Justice (EJ) this introductory forum was the perfect place to learn more about the movement. The forum explored the EJ attorney’s role as an advocate.

Avoiding Carbon Myopia: Three Considerations for Policy Makers Concerning Manmade Carbon Dioxide

Willie Soon* and David R. Legates**

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Towards a Global Carbon Regulatory Trading Scheme

In December 2009, lawmakers and representatives from around the world, along with scientists, numerous journalists, and various celebrities flew to Copenhagen, Denmark. For the most part, their goal was to promote a regulatory scheme aimed at controlling human carbon emissions by declaring the element a tradable commodity and establishing laws and regulations to govern the trade.

The proposed regulations were premised on the flawed notion, articulated by the United Nations Intergovernmental Panel on Climate Change (IPCC),[1] that increasing atmospheric carbon dioxide (CO₂) concentrations will change climate dramatically and thereby cause major ecological and economic damage.

While many scientists, including us, have observed some changes in climate, the hypothesized dangerous consequences of rising atmospheric CO₂ are too speculative for responsible regulatory policy. In analyzing climate policy, decision makers should be cognizant of three key considerations regarding the impact of projected rises in atmospheric CO₂: (1) policy choices likely will have no measurable effect on the occurrence of severe weather; (2) positive effects on ecosystems and biodiversity are likely and should be weighed against the negatives; and (3) carbon trading schemes (such as the one touted in Copenhagen) are unlikely to lead to a reduction in atmospheric CO₂.

Is It Really a Huge Mistake? Choosing Between Carbon Fees and Cap-and-Trade

A Commentary on “The Huge Mistake – Climate Change Solutions 2009”

Juan Arturo Iluminado C. de Castro*

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In the video, “The Huge Mistake – Climate Change Solutions 2009,”[1] Laurie Williams and Allan Zabel (two highly experienced attorneys from the Environmental Protection Agency) appeal to both emotion and reason to convince viewers that the cap-and-trade program, embodied in the Waxman-Markey climate change bill,[2] is a huge mistake, and that carbon fees are the way to go.

Student Review of Selected Panels at the California State Bar’s 2009 Environmental Law Conference at Yosemite

 

 

Jessica Intrator, Lala Wu, Holly Wagenet, Sarah Barker-Ball,

Camille Pannu, & Emily Jeffers*

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Weed in the Wild: Environmental Consequences of Marijuana Cultivation on Public Lands
Speaker: Chief Ranger Steve Shackelton, Yosemite National Park

Yosemite Chief Ranger Steve Shackelton has a lot on his plate. Together with only sixty rangers to cover Yosemite’s nearly 1200 square miles,[1] he oversees the safety of more than 3.5 million visitors annually.[2] Yet, an unprecedented problem threatens Chief Shackelton’s ability to meet his goals: illegal cultivation of marijuana within the park has recently turned his team of safety rangers into drug enforcement agents and taken them away from their other duties.

Why 350? Climate Policy Must Aim to Stabilize Greenhouse Gases at the Level Necessary to Minimize the Risk of Catastrophic Outcomes

Matt Vespa *

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Introduction

After years of inaction, the possibility of substantive federal and international climate policy is finally in sight. With so much time already squandered, insufficient action today will foreclose the ability to prevent catastrophe tomorrow. If we are to avoid saddling future generations with extreme economic and environmental hardships, emerging climate policy must ensure a high probability of keeping future warming below dangerous levels.

The First One Hundred Days: Ten Things President-Elect Obama Should Do to Confront the Climate Crisis

Patrick Parenteau *

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In a recent speech, former Vice President and Nobel laureate Al Gore challenged the nation to produce 100 percent of its electricity from non-carbon sources within ten years.[1] Linking the issues of climate, energy, economy and national security, Mr. Gore stated: “We’re borrowing money from China to buy oil from the Persian Gulf to burn it in ways that destroy the planet. Every bit of that’s got to change.”

Trains Deliver the Goods

Lawrence B. Landman *

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Trucks Pollute, Trains Don’t

Trains carry goods 94 percent more efficiently than do trucks. California should therefore encourage firms to ship goods on trains, not trucks. Yet the California Air Resources Board (CARB), in its draft Scoping Plan, ignores the huge gains the state could enjoy if it simply used more trains.[1]

Land Use and Climate Change: Is it Time for a National Land Use Policy?

Catherine J. LaCroix *

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The immediate and short answer to the question in the title is no. It will never be time for an articulated federal land use policy; the tradition of local control of land use is simply too strong. But consider, for a moment, what this local control policy has produced: a legacy of massive, auto-dependent suburban sprawl nationwide. When we consider that more than one-third of greenhouse gas emissions in the United States come from transportation[1] and that land use patterns perpetuate auto-dependency,[2] we may find that it is time to raise the question: might there be value in a federal land use policy, set by Congress, to attempt to turn the tide of sprawl? The idea deserves consideration.

Global Warming Tort Litigation: The Real “Public Nuisance”

Theodore J. Boutrous, Jr. and Dominic Lanza *

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Climate change litigation is booming. The past five years have witnessed a proliferation of global warming lawsuits brought under an array of novel legal theories.

This article focuses on the subset of global warming cases involving “public nuisance” claims. In those cases, various plaintiffs (including state governments, environmental groups, Mississippi landowners, New Yorkers, and Alaskan villagers) have brought tort claims against members of the oil, automobile, and electric utility industries under the theory that the targeted defendants’ carbon dioxide (“CO2”) emissions contribute to the public nuisance of global warming. To date, these lawsuits have proved uniformly unsuccessful. Four federal district courts have entertained such claims, and all four courts have dismissed for lack of justiciability.

Relative Risk: Global Warming and Imported Fossil Fuels vs. Nuclear Power

California State Assemblyman Chuck DeVore *

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Understanding relative risk is at the heart of America’s current debate over a revival of nuclear power. “Nuclear power is dangerous,” say the critics. “Dangerous compared to what?” should be the reply.

Commenting in early 2007, the president of Stanford University, John Hennessy, said, “Nuclear power has to be part of the solution [to global warming]. Can we really understand the notion of risk? Nuclear plants versus carbon emissions – which will kill and has killed more people?”[1] To this we should append a question about the relative risk of nuclear power versus America’s reliance on fossil fuels. Imported oil and natural gas can fluctuate wildly in cost or may be embargoed by hostile nations while domestic coal remains far from clean and burning any type of fossil fuel contributes to greenhouse gas emissions.

Greenhouse Gas Emissions under CEQA – Costs and Opportunities

Peter V. Allen *

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The recent enactment of SB 97[1] has codified the California Attorney General’s argument that increased greenhouse gas emissions and their effects constitute an environmental impact that must be considered by a permitting agency under the California Environmental Quality Act (CEQA).

This new measure will make many CEQA reviews more complex, and will require more costly mitigation measures for many projects, but it also provides some potential opportunities, particularly for renewable energy developers. This Article looks at the implementation of SB 97 and some of its possible ramifications.