Ecology Law Currents

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.

Preliminary Injunctive Relief in the Ninth Circuit after Winter v. Natural Resources Defense Council

Susan Jane Brown* & Rachel Fazio**

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<<< See Update, January 25, 2011, Below >>>

Introduction

On November 12, 2008, the U.S. Supreme Court issued a ruling on Winter v. Natural Resources Defense Council (Winter).[1] The Winter case originated in March of 2007[2] in the Central District of California when multiple environmental groups challenged the Navy’s issuance of an environmental assessment approving the use of mid-frequency active (MFA) sonar in exercises used to train strike teams (groups of surface ships, submarines, and aircraft) in antisubmarine warfare. Environmental groups sued pursuant to the National Environmental Policy Act (NEPA),[3] Endangered Species Act,[4] and Coastal Zone Management Act of 1972,[5] asserting that the use of MFA sonar could have a potentially significant effect on the environment and that the Navy should have prepared an environmental impact statement.[6] After several proceedings at both the district court and Ninth Circuit,[7] the district court issued a narrowly tailored preliminary injunction, imposing six mitigation measures that the Navy was required to implement pending completion of an environmental impact statement.[8] The Ninth Circuit upheld the injunction.[9] The Navy, having agreed to implement four of the six mitigation measures, appealed the imposition of the two remaining mitigation measures to the U.S. Supreme Court.[10] The only legal claims remaining when the Navy petitioned for a writ of certiorari were plaintiffs’ NEPA claims.[11] The Supreme Court accepted certiorari and found that due to the balancing of harms and the public interest, issuance of an injunction against the Navy’s use of MFA sonar in their Southern California training exercises was improper.[12]

Map of the Ninth Circuit. Map credit to United States Court of Appeals for the Ninth Circuit.

It has now been twenty months since this important decision. This Article examines the current status of the test for obtaining a preliminary injunction in the Ninth Circuit and offers practitioner points on how to approach a request for preliminary injunction post-Winter.

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.

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.

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.

Levine v. Vilsack: When “Likely” Actually Means “Definitely”

Bruce Wagman & Lisa McCurdy*

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Sometimes procedural rulings allow courts to avoid important decisions that would otherwise make social and ethical declarations about the duality of American values with respect to animals. Stark evidence of that comes with the recent Ninth Circuit opinion in Levine v. Vilsack.[1] The Ninth Circuit ruled only that plaintiffs had no standing to sue because they did not meet the “redressability” requirement of standing under Article III, Section 2 of the U.S. Constitution.[2] With this holding, the opinion may signal a new hurdle for plaintiffs to clear. The opinion also leaves in place a federal policy that has mandated the humane treatment of animals before they are slaughtered for food for over fifty years, but applies it to only one out of every ten animals who reach the slaughterhouse. The opinion thus delivers two unfortunate messages. As a nation, we care about animals—but not 90 percent of them. And if you are working to protect animals in the courts, that work could become more difficult.

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.