Ecology Law Currents

The Obsolescence of Environmental Common Law

by R. Trent Taylor*

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Obsolescence, the process of becoming obsolete, is a staple of our lives in the twenty-first century. As new and better technologies develop at a faster and faster pace, our existing technologies—smartphones, televisions, computers—become obsolete almost as soon as they are released to the public. Entire technologies, like the fax machine, emerge rapidly and then disappear just as quickly with the advent of a faster and easier alternative. With respect to technology, we have come to expect, even welcome, obsolescence, as it carries with it better alternatives.

Photo credit to umjanedoan.

The law, however, is another matter. By its very design, it is meant to change slowly. Justice Benjamin N. Cardozo once said, “the encroachments [to the established common law] are so gradual that their significance is at first obscured.”[1] As a result, obsolescence is rare in the law. Once the law incorporates a particular doctrine, it is slow to discard it. Indeed, legal treatises of tort law published recently and those published hundreds of years ago show many similarities.

Surprisingly, one of the oldest and most utilized areas of our legal system, environmental common law, is currently on the verge of obsolescence. Environmental common law dates back to the seventeenth century.[2] It survived the passage of seemingly comprehensive environmental statutes four decades ago.[3] Now, however, a series of court decisions from the past three years hold that environmental common law actions, regardless of whether they are seeking injunctive relief or monetary damages, are preempted and displaced by federal statutes and regulations.

Sulfuric Acid Mist: Regulating Uncertainties

Matthew Thurlow*

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<<< See Update, January 2, 2013, below >>>

Sulfuric acid mist, also known as H₂SO₄ or SO₃,[1] is one of the least publicized air pollutants associated with emissions from coal-fired power plants. Long overshadowed by nitrogen oxides, sulfur dioxide, and carbon dioxide, sulfuric acid mist is typically not emitted in the boundary-crossing and globe-altering quantities of the more frequently discussed air pollutants. In the whirlwind of the United States Environmental Protection Agency’s (EPA) recent air regulations of coal-fired power plants including the Mercury and Air Toxic Standards for power plants (MATS), the New Source Performance Standards and the Tailoring Rule for greenhouse gases, and the recently vacated Cross-State Air Pollution Rule, sulfuric acid mist has remained relatively untouched.[2] But EPA’s regulations, which have imposed dramatic new emission limits on sulfur dioxide, nitrogen oxides, greenhouse gases, mercury, and hydrochloric acid, are likely to have a significant impact on sulfuric acid mist emission control strategies at coal-fired power plants.[3]

Sulfuric acid mist emissions from coal-fired power plants, which creates tell-tale blue plumes (not pictured here), has increasingly been under scrutiny by the EPA over the past decade. Photo credit to ribarnica.

Geographic Indications as a Tool to Promote Sustainability? Café de Colombia and Tequila Compared

Jennifer Barnette*

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Geographical indications (GIs) are a type of intellectual property right associated with place-based names. GIs are used to identify products that come from certain regions and have particular characteristics that indicate the product’s quality or reputation (e.g. “Champagne,” “Roquefort”).[1] While GIs are protected by various legal principles and statutes—including sui generis GI laws, trademarks, certification marks, and collective marks—all GIs function to certify that a product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation due to its geographical origin.[2] While the oldest and most developed systems of GI protection are found in Europe, other developing countries have recently begun implementing GI legislation domestically and seeking protection in international trade agreements, with the goals of promoting rural development and protecting local heritage and the natural environment.[3]

Geographic indications, when managed to support the interests of local farmers, can bring sustainable economic development to developing countries. However, benefits to farmers are eroded when the focus shifts from regional uniqueness to corporate profits. Photo credit to krembo1.

As technological advances in communication and transportation continue to foster international economic transactions, the global distribution of agricultural products has increased competition among developing countries. In our globalized world of industrial agriculture, where large-scale producers from developed countries often benefit from government subsidies, agricultural producers in emerging economies are forced to achieve greater product differentiation to stand out from competitors and position themselves on more profitable market segments.[4] As part of a comprehensive strategy to increase product differentiation and charge higher prices in the international market, GIs offer a promising avenue for enhancing the value of local products.[5] Indeed, GI products tend to have a reputation for higher quality and therefore command a higher price than similar products that lack unique place-based characteristics.[6]

Will the Wilderness Act Be Diluted in Drakes Estero?

Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles,
Dan Carlin, Brynn Cook, and Sage Adams*

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<<< See Update 1, November 29, 2012, Below >>>
<<< See Update 2, December 10, 2012, Below >>>

Introduction and Background

Drakes Bay Oyster Company (DBOC)[1] runs a commercial shellfish farming operation in Drakes Estero, a 2,500-acre network of five finger-like bays that extend into the Point Reyes Peninsula, north of San Francisco, California.[2] In 1976, Congress designated more than 25,000 acres of wilderness and 8,003 acres (including the Estero) of potential wilderness within the Point Reyes National Seashore.[3] This marked the first time Congress used the “potential wilderness” designation, creating a new category for areas that would become full wilderness without further legislative action once temporary uses inconsistent with wilderness values ceased.[4] Since that time, Congress has designated more than 250,000 acres of potential wilderness—referred to in this Article as “congressionally designated potential wilderness areas” (CDPWAs)—associated with twenty-nine different wildernesses in thirteen states.[5] DBOC’s aquaculture business remains the sole nonconforming use preventing Drakes Estero from converting to full wilderness.[6] Its authorization to operate is set to expire before the end of 2012.[7]

Part of the onshore operations of Drakes Bay Oyster Company, which farms nonnative shellfish in Drakes Estero, an area Congress has designated as potential wilderness. Photo credit to Nell Green Nylen.

Hydraulic Fracturing and Groundwater Contamination: Can Disclosure Rules Clarify What’s In Our Groundwater?

Rachel Degenhardt*

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Hydraulic fracturing is a process whereby chemical additives, sand, and water are pumped into underground source rocks at high pressures in order to release natural gas and oil for fuel production.[1] There are a number of potential environmental impacts associated with this process, including risks of groundwater contamination, the mishandling of wastewater, and the potential migration of gases and hydraulic fracturing chemicals to the surface.[2] Despite these concerns, the Safe Water Drinking Act currently provides an exemption for the oil and natural gas industry and excludes the process known as hydraulic fracturing from regulatory efforts of underground injection controls.[3] This lack of regulation, coupled with the recent rise in domestic oil and natural gas production in the United States, has led to intense debate surrounding this controversial extraction process.[4]

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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Click here for videos of all sessions or on each session for its video.

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.

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.

Acceptability of the Deschutes Groundwater Mitigation Program

Eva Lieberherr*

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“We can’t create water or increase the supply. We can only hold back and redistribute what there is.”[1]

In the last decade, the Deschutes River Basin in Central Oregon has faced growing urbanization, shifting water uses, and increasing ecosystem health concerns. This has led the Oregon Water Resources Department to experiment with a voluntary market-based approach to water management. To meet groundwater demands while maintaining instream flows and upholding prior water allocations, the Oregon Water Resources Department developed the Groundwater Mitigation Program in 2002. A program will be more effective and viable if it is deemed acceptable by its participants. As such, this research focuses on how acceptable the Groundwater Mitigation Program is to its participants.[2] Comparing two hypothetical alternative scenarios to the Groundwater Mitigation Program, I determine acceptability by the following criteria: usability, accountability, enforcement, equity, information dissemination, cost-effectiveness, and utility. The research incorporates a mixed-method approach, conducting interviews and surveys of program participants. Results indicate that although the Groundwater Mitigation Program is more acceptable than the proposed alternatives, a lengthy groundwater permitting process, passive enforcement, and a lack of information nonetheless make the program unfavorable to its participants. Increased awareness could promote acceptance of the Groundwater Mitigation Program, and at the same time, contribute to the effectiveness of the program.

The Deschutes River near Bend, Oregon. Photo credit to MonkeyBoy22.

BP’s Well Evaded Environmental Review: Categorical Exclusion Policy Remains Unchanged

Jaclyn Lopez*

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Introduction

Sea snot, tar balls, and designated oiled carcass holding locations are just a few of the many appalling and lingering consequences of the failure of BP’s Macondo well in the deep waters of the Gulf of Mexico. The catastrophe began on April 20, 2010 when the well’s blowout preventer failed and caused a fiery explosion aboard the Deepwater Horizon, the oil rig owned by Transocean and leased and operated by BP. The accident killed eleven rig workers and led to the largest oil spill in American history. Plugging the well took three months plus an additional two months to kill the well. Called an unprecedented environmental disaster by some and the Crime of the Century by others, BP’s oil spill resulted in an estimated total discharge of 4.9 million barrels (205.8 million gallons) of oil, largely unmitigated, into the Gulf of Mexico. While the precise cause of the well’s failure is still unknown, what has become evident is that the drilling plans for BP’s broken well never underwent full environmental review – a review that could have helped prepare the company and local and federal governments for such an eventual catastrophe.

Smoke plumes from spill-response crews gathering and burning oil in the Gulf of Mexico near the site of the leaking Macondo well. Photo taken June 22, 2010. Photo credit to Dr. Oscar Garcia / Florida State University.

7th Annual EJ Symposium — Hungry for Justice: Growing an Equitable Food System

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A National Injustice: The Federal Government’s Systematic Removal and Eradication of an American Icon

Bruce Wagman[*] & Lisa McCurdy[**]

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Brutal captures and deaths of American wild horses are occurring on the range. This is not a fictional western gone bad but federal policy. The government tries to justify this cruelty with junk science and is sheltered in its actions by procedural barriers and judicial deference. For nearly four decades, federal contractors have been capturing wild horses and burros across the western United States under the guise of “management” pursuant to the Wild Free-Roaming Horses and Burros Act.[1] The horses are often chased down by helicopters, sometimes for miles through rough terrain in the heat of summer, lassoed, and forced to the ground and then into trailers.

Wild horses are driven down a steep slope by a helicopter during the Twin Peaks Roundup, August 15, 2010. Video credit to Humane Observer.

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.

Promoting the Urban Homestead: Reform of Local Land Use Laws to Allow Microlivestock on Residential Lots

 

Mary Wood, Jeremy Pyle, Naomi Rowden, & Katy Irwin*

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Introduction

Over the past several decades, Americans have divorced themselves from the ages-old endeavor of growing and harvesting their own food. During this era, the food system has undergone a radical change from its traditional makeup that predominated even just a few generations ago. Today, global distribution systems transport food thousands of miles before it reaches its final destination. While this model provides convenience and selection for consumers, the consolidation and centralization of food production has come at a high price. The U.S. food system is highly polluting, vulnerable to adversity, unsustainable, and, in some cases, unsafe for consumers.[1] For these and other reasons, citizens are increasingly urging their local officials to initiate regulatory and policy changes to encourage local food production on both public and private property. This Article explores some of the law and policy considerations for reforming city codes to allow for “urban homesteading” on residential city lots, focusing in particular on regulations pertaining to husbandry of microlivestock.

Backyard goat.  Photo credit to pinkhippodesign.

Whale of an Opportunity: Coast Guard Study of Los Angeles/Long Beach Port Access Routes Holds Great Potential for Reducing Ship Strikes within Santa Barbara Channel

Brian P. Segee*

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Introduction

As global whale populations slowly recover from historic hunting that brought numerous species to the brink of extinction, the increasing number of whales killed by collisions with ships threatens to slow or even reverse this recovery in some areas. Along the west coast of the United States, this conflict is most clearly evident in the Santa Barbara Channel, which not only provides essential habitat for numerous whales, including the densest seasonal population of blue whales on the planet, but also serves as the primary formal shipping lane for traffic into and out of the nation’s busiest port complex at the Los Angeles and Long Beach Harbors (LA/LB). While ship strikes have been implicated in the deaths of blue whales off the California coast since as early as 1980, the incidence of strikes has steadily risen, and in 2007 an unprecedented five blue whales were struck and killed in the Santa Barbara Channel.[1]

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.

A New Dawn for the Sacramento-San Joaquin Delta? Assessing the 2009 California Delta/Water Legislation

Richard M. Frank*

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Introduction

The California legislature’s major, substantive achievement of 2009 was the passage of a five-bill package designed to address the multiple ills that have befallen the California Delta[1] and compromised statewide water policy. The bills were signed into law with great fanfare by California Governor Arnold Schwarzenegger last November.

This Article focuses on three related topics: (1) the legal, scientific and political developments that gave rise to this important and controversial legislation; (2) the key features of each of the five bills; and (3) the extent to which the legislation represents sound environmental policy and the likelihood that its broad objectives will be realized.

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.

Restoring Public Trust in the Public Lands: An Agenda for the New Administration

Eric Biber, Holly Doremus, Dan Farber, Rick Frank, and Joseph Sax *

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Federally-owned and managed public lands occupy approximately thirty percent of the land area of the United States, and anywhere from forty-five percent to over eighty percent of the land area of many of the states of the West, including California.[1] Those federal lands are significant sources of economically important natural resources for the United States, including timber, rangeland, and minerals. In particular, they are an important source of energy resources for the United States, both fossil fuel (oil, natural gas, and coal) and renewable (wind, solar, geothermal).[2] Many communities in the West continue to rely on the extraction of these resources as important components of their economies.

But these lands are not only important for the exploitation of natural resources. They provide unparalleled recreational opportunities for a wide range of Americans, including fishing, backpacking, skiing, and off-road vehicle use. Indeed, those recreational opportunities have become central to the quality of life of many of the residents of rapidly growing Intermountain West cities such as Denver, Salt Lake City, Reno, Boise, and Missoula, and they are a significant reason why so many people have moved to those cities, as well as many rural areas in the West.[3]

A third quality of our public lands system, is the role that federal public lands play as a reserve system: perhaps to an extent unmatched in the rest of the world the federal public lands system protects open space, amazing scenery, functioning ecosystems, wilderness, and endangered species.[4]

A Challenge for the Obama Team: Put Science and Federal Scientists to Better Use

Holly Doremus *

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Introduction

It’s no secret that the outgoing George W. Bush administration has been hostile to environmental interests. By all accounts the Obama administration will be different on that score (as on many others).

Before it can concentrate on its own new environmental priorities, though, the new administration will have to root out the counterproductive work of its predecessor. To some extent that’s just politics as usual and expected. Some degree of “policy whiplash” legitimately accompanies every presidential transition.

But this transition will be more complicated than usual. As it works to reverse a large number of specific Bush administration decisions, the Obama environmental team will also be battling a systemic problem at key federal environmental agencies. Career federal environmental scientists at both regulatory and research agencies are thoroughly demoralized, and a wide range of observers agree that science is not being used effectively in environmental policy decisions. The morale problem will be helped by case-by-case reversal of some of the most extreme Bush-era anti-environmental actions, but morale will not be fully restored until institutional systems are in place to make better use of scientific evidence and scientific personnel. That sounds easy, but it will take more than simply declaring a commitment to scientific integrity.

Stopping the Conversation: Amended ESA Section 7 Regulations Put Species At Risk

Eric Biber and Cynthia Drew *

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The Endangered Species Act (ESA) is the primary legal tool in the United States for the protection of biodiversity. Since its enactment in 1973, it has played a central role in efforts to halt the decline of native species throughout the country. Central to the ESA’s regulatory structure is Section 7 of the Act, which requires federal agencies to consult with federal wildlife agencies to insure that their actions do not “jeopardize” the existence of species listed for protection under the Act, or “adversely modify” designated critical habitat for listed species.

The outgoing Bush Administration proposed significant changes to the regulations implementing Section 7 of the Act on August 15, 2008.[1] Those changes greatly reduce the scope of Section 7’s application in two major ways. First, they reduce the analysis of federal actions pursuant to Section 7 by making it harder to connect federal actions to potential harm to listed species. Second, they give federal agencies the ability to determine whether their actions might harm listed species and accordingly whether Section 7 consultation should occur at all.

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.

Enhancing China’s Environmental Governance: Challenges and Opportunities

Fuqiang Yang and Min Hu *

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Introduction

China’s economic and social development has had severe environmental impacts: from land and water resource deterioration to becoming the world’s largest greenhouse gas emitter, pollution has resulted in total losses equivalent to 3.05 percent of China’s Gross Domestic Product (GDP).[1]

Under a strategic plan to pursue a sustainable development path, China has passed a plethora of environmental laws, standards, and regulations in recent years, and adopted ambitious targets aiming at reducing major pollutants by ten percent and improving GDP energy efficiency by twenty percent in its Eleventh Five Year Plan (2006-2010).[2] These ambitious goals were set despite clear evidence that China’s environmental governance system has struggled with enforcement, especially at the local level. Due to a lack of enforcement, less than one percent of China’s urban residents live in cities that meet World Health Organization air quality standards.[3] Failure to enforce environmental regulations has also contributed to rapid motorization and the growth of polluting and energy-intensive industries, undermining GHG mitigation achievements made in other countries of the world.

A breakthrough in dealing with the problems of China’s high speed growth occurred in March 2008. In recognition of the economic and humanitarian need to improve environmental governance, the National People’s Congress upgraded the vice-cabinet level State Environmental Protection Administration (SEPA) to the cabinet level Ministry of Environmental Protection (MEP).[4] This promotion establishes a basis for building environmental governance capacity through increasing staffing and budgets; increases attention paid to environmental and energy policy integration at all levels of government; and continues efforts to internalize the economic impacts on human health and environmental externalities caused by traditional fuels combustion. This paper discusses institutions which are responsible for environmental governance in China and opportunities to restructure these institutions to integrate environmental concerns into China’s national policy-making process and increase enforcement and compliance.

Integrating Land Use and Transportation Policy in California: The Legislature's Response

Dave Jones *

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The Challenge

Accelerated climate change is the preeminent environmental and economic issue of our time. Unless we change course now, it will be the preeminent issue for the next generations also. Recognizing the situation, the Legislature passed Assembly Bill 32, California Global Warming Solutions Act of 2006.[1] This law put California at the forefront of taking action to combat global warming by establishing aggressive goals for reduction of greenhouse gas (GHG) emissions. The goal of AB 32 is to reduce our greenhouse gas emissions to 1990 levels by the year 2020. We cannot just slow down the rate at which GHGs are being emitted—we must go further and in effect turn back the clock.

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.