Fellowship: California Lawyers Association, Environmental Law Diversity and Inclusion Fellowship Program (Deadline: Oct. 25, 2021)

For Summer 2022: https://calawyers.org/section/environmental-law/fellowships/

This is a terrific opportunity for law students. One of my students spent a summer with Earthjustice through this fellowship and had a great experience.

California Lawyers Association – Environmental Law Section Webinar: Intro to Environmental Law Series – Water Law 101, Sept. 2, 12 noon California Time (Free Registration)

The Cal Bar Environmental Law Section is running a series of basic introductory webinars to environmental law. I watched the intro to Air Pollution Law (Air Quality Law 101) last week, and it was an excellent introduction to air pollution law suitable for law students or junior lawyers who have had little or no exposure environmental law. I highly recommend it for law students interested in environmental law. I’ll post the link to the recorded presentations when the Section makes it available. (By the way, these webinar definitely have a California emphasis – but then again California is the most important state jurisdiction for environmental law purposes . . . . that was a joke.)

For those interested in a basic intro to water law (which would include both pollution and water rights, I assume), there is another webinar coming up. Registration is free. Here is a link for the registration and also a short description of the webinar below: https://calawyers.org/event/webinar-intro-to-environmental-law-series-water-law-101/

From the notice about this webinar series:

“Interested in the practice of environmental law? Running into basic environmental issues in your field of law? The Environmental Law Section and the California Young Lawyers Association (CYLA) are excited to co-present this free series covering key practice areas within the environmental legal field. This series is geared toward law students, new lawyers, and even experienced attorneys interested in learning more about environmental law.”

“Participants will receive a “101” level introduction to the practice area from private, government, and non-profit lawyers. Each panel will include a high-level overview of the basic legal framework, real-life project examples, and a question-and-answer session for attendees to meet members practicing in the field. This year’s series will conclude with a primer on the Environmental Law Section’s 30th annual Yosemite Conference, scheduled for October 14-17, 2021.”

Law Students for Climate Accountability, 2021 Law Firm Climate Change Scorecard

The Law Students for Climate Accountability recently published their “2021 Law Firm Climate Change Scorecard.”

This seems to be a really interesting resource for law students or lawyers who are concerned about climate change and other environmental issues and therefore would like to choose law firm employers with that in mind. The report only reviews large law firms that are profiled on the website vault.com. (My law firm days are so far in the distant past that I am no longer familiar with the various law firm ranking organizations.) Suffice it say though, the LS4CA scorecard seems to grade law firms on how responsible they are with respect to their work on climate/environmental issues, i.e. are they making things worse or helping to make things better on climate and the environment through their legal representations in litigation, transactions, and lobbying matters? The score card assigns law firms with grades ranging from A to F.

I would recommend this report to any of my students who care about the social responsibility of lawyers, especially those who are interested in an environmental law practice in a private law firm setting.

However, a closer examination also leaves me scratching my head. While I am not familiar with all of the law firms that are included in the scorecard (especially their practice specialties and strengths), the inclusion of some firms seems odd. (Of course, as I mentioned, I am not particularly close to private law firm environmental law practice these days.) For example, Wilson Sonsini (A) and Fenwick West (B) are big Silicon Valley firms that cater to a tech clientele; Littler Mendelson (B) is primarily an employment/labor law firm; Fish and Richardson (B) does primarily intellectual property/patent work. As far as I can tell, none of these firms have significant environmental law/climate change law practices, whether regulatory, transactional, or litigation-focused.

On the other end of the score card (grades D and F) are many of the firms that I think of as having major environmental law practices: Latham & Watkins, Morrison Foerster, Gibson Dunn, Perkins Coie, Pillsbury Winthrop, Arnold & Porter, Sidley Austin, etc. These firms have a group of very experienced environmental law practitioners and interesting work and could thus provide really valuable training for junior lawyers.

I didn’t look carefully at the study methodology, but there is no reason to think that the measures don’t reflect something problematic about the work of the ranked firms. However, maybe there is also something else going on, which may be more obvious — if one wants to practice environmental law in a large private/commercial law firm, it is very difficult to represent “green” interests/clients. Inherently in the nature of private lawyers being “hired guns,” environmental law practice in a private firm setting is going to skew overwhelmingly to the representation of polluters and organizations that use up/degrade natural resources. Those are the paying clients. Which is of course why most students who are committed to “green” causes end up doing NGO or government work. And it seems that the law firms that come out most positively with respect to the environment on the scorecard are the firms that don’t really do much environmental law work in the first place (at least not in a traditional environmental law practice).

So, maybe the take-away from the scorecard for aspiring young environmental lawyers is this — don’t fool yourself into thinking that you can do positive environmental/climate work at a traditional large law firm. OK, that’s probably overstating the point, but something like that is probably the bottom line. (OK, OK – this is also contrary to what I usually advise my students – that even in a large law firm/corporate environmental law practice, you can still do good for the environment by advising and directing your client toward the environmentally responsible course of action. However, this scorecard seems to suggest that there is a serious limitation to that kind of thinking.)

Groundwater Rise: An International Problem that California Must Solve

The devastating effects of climate change are numerous, diverse, and often disrupt our best-laid plans.  One novel issue which is only now starting to get attention is groundwater rise.  When we think of sea-level rise, we often think about the ocean encroaching our coastal shores and flooding our beaches – but we forget about the waterways in the ground beneath our feet. Groundwater fills the holes and fractures in underground materials like water fills a sponge. It can be deep in the earth, or shallow and near the surface.  Along coasts, underground saltwater floats directly beneath the freshwater.  When underground saltwater rises with the rising seas, it is expected to push the groundwater up and sometimes even out of the ground.  In addition to flooding basements and impacting plumbing, this rise can also crumble roads and create extended earthquake liquefaction zones. In 2012, Hawaiian scientists discovered the earliest first-hand evidence of the phenomena already in action.

Global climate change is expected to cause at least an average one foot rise in sea levels by the end of the century, with a three foot rise in California, but it may end up being much more. A survey in one Bay Area city found local groundwater to currently be an average of six feet below the surface near the Bay edge, and often as close to the surface as only one to two feet below. Even a small rise in sea levels can have devastating effects with already shallow groundwater. The effects become even more problematic if the groundwater is contaminated by chemicals.  For those who live or work near the shore and in polluted areas, sleeping monsters are about to awake.

Potential Impacts of Sea-Level Rise (SLR) and Flooding in the San Francisco Bay Area: https://lao.ca.gov/reports/2019/4121/Fig2.png
California LAO: Preparing for Rising Seas: How the State Can Help Support Local Coastal Adaptation Efforts

When chemicals pollute soil and groundwater, the contamination may be mitigated by procedures to contain the toxins and reduce the risk to humans nearby. However, these containment procedures generally factor in the current depth of the groundwater at that time and there is usually no follow up later to assess if the mitigation is still sufficient (such as if physical circumstances changed in the area).  More than 945 EPA Superfund sites are at risk due to global climate change generally, and 330 EPA Superfund sites were found to be at risk of flooding due to only five feet of sea level rise. The California LAO recently stated, “floodwaters could penetrate both surface-level and underground tanks and force out toxic liquids, or liberate waste from pits or piles.” Though, this analysis does not even consider vapor intrusion risks as the groundwater rises closer the surface.

The issue of contaminated groundwater rise has been overlooked by city planners and decision-makers for decades, but we cannot wait any longer.  Many coastal cities across the world will be impacted by this issue.  California has an impressive history of environmental innovation and pioneering novel solutions to address global climate change. This issue should be no different — not only because the world needs a solution, but because this issue will be disastrous for Californians if we cannot get ahead of it at home.

– Ashley Gjovik

Ashley is an advocate for human rights, including healthy environments. She is currently a law student at Santa Clara University studying international public interest law and policy. 

Remarkable Climate Change Decision from a French Court

While there is a wealth of climate cases pending in courts across the world, success for climate activists has been very limited. Last year, in the Urgenda case, the Dutch Supreme Court affirmed an earlier lower court decision finding that the government had not done enough to cut greenhouse gas emissions. This French decision is apparently the first in France finding the government liable for climate harms.

The US is back in the Paris Climate Agreement!

https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/paris-climate-agreement/

Of course, the best news today was the inauguration of President Biden. But as an added bonus, he has brought the US back into the Paris Climate Agreement with this simple acceptance of the Treaty. Since the Paris Agreement is largely binding, at least with respect to the substantive emission reduction commitments, and given that the US was only out for a little more than 2 months, it’s as if the US never left!

Now, for students of international environmental law, the next question to ask would be this: how can this simple “acceptance” of the Agreement make the US a party? Why is Senate advice and consent not necessary?

A California Water Crisis, Again

           On October 30, 2020, the California Public Utilities Commission (CPUC) and the State Water Resources Control Board hosted a joint workshop for water utilities and assorted consumer advocacy groups to address water affordability and operational challenges aggravated by the COVID-19 pandemic. (The workshop was held pursuant to Rulemaking 17-06-024: Water Affordability During COVID-19.) Since January 2020, the number of customers behind on their water bills has steadily risen in the following months up until the time of this workshop. This has not been a surprise due to the massive unemployment caused by COVID-19.

            Unfortunately, demand and competition for water has remained undiminished, even as California continues to face rising water shortage challenges. People still need to water their lawns, flush their toilets, and grow their food. Cultural differences between northern and southern California, priority disagreements between urban and agricultural interests, and an increasingly lopsided curve of demand and supply from a growing population in an area greatly affected by climate change have exacerbated the problems. And the icing on the cake in solving these water use tensions is Article X, section 2 of the California Constitution which declares that all Californians have a constitutional right to water.

            As a result, consumers using the water system without the ability to pay for it have aggravated a financially strained system. As of 2014, California was ranked as the number 1 state in need of water infrastructure repair. With customers unable to pay their bills, how can we tackle this problem? How can a system without the ability to repair itself continue to deliver safe drinking water? As an additional layer to this quandary, there are over 100 investor-owned water utilities in the CPUC’s jurisdiction, as compared to just a handful of gas or electric utilities. With each water utility bringing its own unique and complex problems to the table, ensuring the supply of safe and affordable drinking water presents a problem far more complex than electric power distribution.

            As a short-term measure, the CPUC has imposed emergency protection for consumers to avoid disconnection due to unpaid bills. Unfortunately for many, the CPUC only oversees investor-owned utilities, and thus the CPUC measure only applies to a limited number of people in the state. Others will need to find alternative means of keeping their water on. More importantly, neither water shut-offs for delinquent customers nor emergency measures preventing disconnection due to unpaid bills address the long-terms financial challenges for water utilities with respect to maintaining an aging water infrastructure, which continues to depreciate. At this point, we must put a Band-Aid on the system and float it forward, so to speak, as we continue to discuss what equitable solutions we can offer to enforce this constitutional right for California residents.

Wesley Clark

Composting, Worms, and the Climate Crisis

Reducing food waste is one of the most important things we can do as individuals to fight the release of greenhouse gases (GHG) into the environment. The food supply chain accounts for nearly a third of worldwide GHG emissions. These gases contribute to climate change, which disproportionately burdens developing countries. The Food and Agriculture Organization (FAO) of the United Nations estimates that, if the world’s food waste was a country, it would be the third-highest emitter of GHGs, behind only the U.S. and China. While the majority of food waste is the result of food rejected for imperfections even before it reaches consumers, consumer-generated food waste in the U.S. contributes 2% of yearly GHG emissions nationally. Reducing such consumer food waste can make a meaningful contribution toward the reduction of GHG emissions, including through simple measures such as buying only what is needed, using every bit of it, and accepting imperfect fruits and vegetables. However, one measure that remains underutilized is composting of food waste. Empowering consumers to engage in composting can help mitigate GHG emissions as well as produce valuable environmental co-benefits.

It is estimated that a worldwide effort to implement composting could reduce GHG emissions by 2.3 billion tons over the next 30 years. Composting converts organic waste into soil carbon, reducing the methane produced by decomposing food waste in landfills. Compost made from food waste can be put back into the agricultural system, improving soil quality and increasing productivity. Adding compost to the soil also aids in long-term carbon sequestration, because composted material provides the carbon and nutrients necessary for the soil microbes that create stabilized forms of carbon in soil. On a large scale, composting provides the interconnected benefits of increased soil health, reduction of GHGs, and improved agricultural productivity. On a smaller scale, composting makes it easier to produce food at home. Sourcing food locally can help reduce the GHG emissions from fossil fuel combustion in the agricultural supply chain.

Vermiculture, or composting with worms, provides an efficient, odorless, and space-conscious alternative to bin composting. Worm bins can easily be kept in small spaces, such as under the sink, or outdoors (with sufficient insulation). While many species of worms can be used in vermiculture, red wigglers (Eisenia foetida) and European nightcrawlers (Eisenia hortensis) are the most commonly used. These worms can eat a combination of food waste and paper products. Red wigglers eat about half their weight in food waste every day—that means 1,000 worms (the most common number to start with) can eat about half a pound of food per day. European nightcrawlers are commonly used in combination with red wigglers because they grow much larger and feed in the lower layers of the bin. As they eat, composting worms excrete castings, a nutrient-rich humus that can be used as a safe, organic fertilizer. Worm casting fertilizer is especially valuable because it contains beneficial soil microbes, has a neutral pH, and, unlike other fertilizers, will not burn plants because its nitrogen is released slowly. Vermicompost has also been shown to reduce plant disease—beneficial microbes from worm castings can colonize the surface of a seed, protecting it from infection. Using compost and worm castings as natural fertilizers also provides an opportunity to reduce water pollution and greenhouse gas production. Excess fertilizer pollutes waterways and can be converted by microbes to nitrous oxide, a greenhouse gas that is 300 times more potent than carbon dioxide.

Bin composting can be time-consuming, and takes up more space and effort than many can dedicate to it. However, vermicomposting is a concrete step that individuals can use to take on climate change, especially if they feel helpless in the face of the climate crisis and would like to take responsibility for their food waste. It is easy, fun, and can be done almost anywhere. I began worm farming in July, and already have a colony that consumes the weekly waste of a family that shops in bulk at Costco. While the benefits worm castings have provided to my garden are hard to measure, my anecdotal evidence is that there was an explosion of growth in the weeks following the first introduction of vermicompost. My worms keep pounds of food scraps and paper products from landfills monthly, and, as the colony grows, they will eat more.

As the climate crisis worsens, contributing to droughts and food shortages, we should take advantage of every opportunity to reduce GHGs and increase agricultural efficiency. Municipal governments should reduce GHG emissions from food waste by incorporating vermicompost into waste removal. Governments should also provide vermicompost education to citizens, like this instructional video from the City of Sydney. Governments could also encourage vermicomposting with tax incentives for restaurants and grocery stores, which are perfect candidates for vermicomposting because of their high volume of organic waste. Vermicomposting is just one of the ways in which we can reduce waste, increase the availability of locally grown food, and take responsibility for our emissions in high-income countries.

Katherine Pond

The Climate Crisis and Opportunities for Inmate Firefighters

The fire season for 2020 so far, has been the worst on record in California’s history. Unfortunately, as climate change is expected to enhance the duration, frequency, and severity of heatwaves, it is unlikely to remain an exception in regard to wildfires. This year alone, Cal Fire estimates that 4,197,628 acres have already burned. Five of the six largest fires in California history started in August and September of 2020.

California faced an added difficulty entering this fire season due to a shortage of inmate firefighters after prisons released many individuals early due to COVID-19 outbreaks. The Conservation Camp Program has operated since 1915, allowing inmate volunteers with sustained good behavior and without violent records to support government agencies as they respond to fires. When not actively fighting fires, these inmates perform crucial conservation and community service projects, such as clearing dead brush and fire fuel, maintaining parks, and reforestation.

Until recently, many of these volunteer inmates were unable to secure employment as firefighters after release. However, Governor Gavin Newsom signed AB-2147 into law on September 11, 2020, allowing prisoners who received “valuable training and [placed] themselves in danger assisting firefighters to defend the life and property of Californians” to petition courts to dismiss their convictions after release. A clean record will enable them to receive an EMT certification, which most municipal fire departments require. Although Cal Fire, the U.S. Forest Service, and hotshot crews do not require EMT certifications and already employ many former prisoners, this new law will increase the competitiveness of former inmates for jobs in those organizations and increase their opportunities for promotion.

This is precisely the type of program needed to truly rehabilitate nonviolent offenders: allowing them to have their records expunged upon release as appreciation of their discipline and courage to fight dangerous fires and providing them valuable, marketable skills so that they can achieve success after release. However, more is necessary to help reintegrate these individuals into society as productive citizens.

Fortunately, the emerging clean energy economy and the ongoing transition from non-renewable energy sources provide just such opportunity for job training in a new and essential industry sector. The Brookings Institution, a public policy think tank, considers a push for workforce development efforts to be essential to the success of any federal or state efforts to transition to clean energy. The shift to renewable energy will demand a sizeable workforce as the market for clean designs, tech, and other advanced industries expands. Offering specialized training to inmates in skilled trade positions would help establish the U.S. as competitive and capable in the green energy infrastructure sector. Most important for inmates who have served their time, it would ensure competitive wages and provide an opportunity for them to gain valuable skills. Whether the transition to clean energy is accomplished through the Green New Deal or other programs, rising demand for clean infrastructure and energy jobs presents an opportunity to create a more equitable future for all, including those who have served their time.

Katherine Pond

It’s Time to Reduce the Subsidies for Meats and Dairy

Environmental concern about meat and dairy production has been long-standing.  The five largest meat and dairy corporations (JBS, Tyson, Cargill, Dairy Farmers of America, and Fonterra) are responsible for more greenhouse gas emissions than the giant oil conglomerate ExxonMobil. Factory farms pollute the environment by releasing large volumes of manure, chemicals, and antibiotics into the water. Antimicrobial resistance in the natural world continues to increase because livestock is frequently treated with antimicrobials for a variety of diseases. And as factory farms make serious contributions to ocean pollution, the resulting algal blooms kill marine life. The list of negative environmental impacts from raising livestock can go on for pages. Meanwhile, global meat consumption continues to rise, prompting companies like JBS to increase production. With climate change being the reality of everyday life, the impact from factory farms and raising livestock needs to be addressed as a public health concern. The government can address the negative impacts that factory farms have by reducing the amount of subsidies that factory farms receive and shift such support to sustainable vegetable and fruit farming instead.

Livestock production in the US became industrialized after World War II and caused the consumption of meat to rise sharply. Nowadays, meat and dairy production in the US receive 63% of federal government subsidies, while fruits and vegetables only receive 0.04%. At the same time, most of the subsidies go to large corporations instead of smaller farmers. This has not only drastically reduced the price of meat in the US, but also made factory farms a necessity to keep up with the demand for cheap meat.

Lowering the percentage of subsidies that factory farms receive is a step in the right direction to address the negative impact on climate and the environment, especially because meat and dairy production constitutes one of the world’s biggest sources of livestock-related CO2 emissions. The price of meat when unsubsidized will better reflect the price of the environmental destruction that it takes to produce it.  Furthermore, with plant-based diets and foods becoming increasingly popular over the past decade, eliminating meat and dairy subsidies would also be aligned with the direction of the nation’s diet.  Shifting subsidies to sustainable vegetables and fruits will then lower their cost and encourage healthier and more environmentally conscious food purchases.  In the end, lowering the subsidies on meat and transitioning that subsidy to more sustainable foods will change how much meat is purchased and produced and begin to reduce the harm that the industry has on the environment.

Jennifer Liem