2022 Katharine and George Alexander Prize Recipient Julia Olson – Part 1

(Part of 2 of this piece can be found here)

            On Tuesday, March 29, 2022, Santa Clara University School of Law will honor Julia Olson with the Katharine and George Alexander Prize. Registration for the event is free.  For those unable to attend in-person, the Prize Ceremony will be livestreamed. (As an aside, in 2018, Santa Clara Law School also honored alum Phil Gregory (JD/MBA ’80), who works closely with Julia Olson on her climate change cases, with the Edwin J. Owens Lawyer of the Year Award.) Santa Clara 2L Student Ariana Snyder prepared this 2-part write-up of our honoree and her trail-blazing work:

Part 1 – Julia Olson (By Ariana Snyder):  Julia Olson graduated from the University of California, Hastings College of the Law in 1997.  Her work as an advocate began early in her legal career when she represented various environmental groups working to protect the environment, organic agriculture, and human health. In 2006, on one hot summer day, eight-month pregnant Julia Olson went on a run. The heat was unbearable and so she sought out a place to cool off. Al Gore’s documentary “An Inconvenient Truth” about climate change and the growing planetary emergency happened to play in a local movie theater.

When Julia Olson saw the film, she thought about the child she was pregnant with and the world they would be born into. Her child would be brought into a possibly unsafe planet plagued with climate issues. After coming to this realization and feeling the weight of her children’s future on her shoulders, Julia Olson knew she had to do something to protect her children’s future. A few years later, in 2010, Julia Olson founded Our Children’s Trust to lead a legal campaign on the behalf of all future generations.

Our Children’s Trust is a non-profit public interest law firm that provides campaign-based legal services to youths to protect their legal rights to a safe climate.  She was inspired by the work of one of the world’s most respected climate scientists James Hansen and the Minors Oposa case, a lawsuit in the Philippines brought (and won) by environmental attorney Tony Oposa on behalf of his children against the government. Our Children’s Trust actively works to secure the Earth’s climate system for the present and future generations. Its legal campaign uses a strategy that focuses on media, education, and public engagement, with the goal of ensuring climate recovery planning at various government levels.

 By the following year, Our Children’s Trust planned to file lawsuits in 50 states, but the law firm saw some defeats both in state and federal courts.  After a review of its legal strategy, Our Children’s Trust filed a federal suit in Oregon raising constitutional claims. In 2015 Juliana v. United States was filed in the U.S. District Court for the District of Oregon.

2022 Katharine and George Alexander Prize Recipient Julia Olson – Part 2:  Juliana v. United States

(Part 1 of this piece can be found here)

(By Ariana Snyder) Juliana v. United States was brought by 21 youth plaintiffs against the U.S. government for violating their Fifth Amendment rights to life, liberty, property, and public trust resources. The lawsuit is the first of its kind to argue that there is a constitutional right to a safe and livable environment. All youths assert that they have been detrimentally injured by climate change. For example, one plaintiff states that due to climate change a massive storm dumped heavy rain on her home in Southern Louisiana causing storm water and sewage flooding; other plaintiffs assert respiratory problems due to wildfire smoke and longer pollen seasons.  Almost all of the plaintiffs raise psychological distress as a result of the changing climate. The lawsuit specifically asks the Oregon courts to order the United States government to prepare a plan on how to lower global carbon dioxide levels.

The lawsuit has helped bring attention to key issues in the ongoing public debate about climate change policy. Politicians, government lawyers, and the U.S. Department of Justice have argued that climate policy should be left to Congress and the Executive Branch, some even going as far as to argue that the Courts do not have jurisdiction over climate change lawsuits. Essentially, the argument hinges on the idea that climate policy must be addressed by the political process- voting, policy, representation, etc. This puts the youth plaintiffs in an untenable position.  As youths, they are not permitted to participate in the political process since they may not vote. In fact, the future generations that the lawsuit hopes to advocate for cannot participate in the political process either.  Yet, it is the youth and unborn future generations that will be impacted most by the government’s failure to solve today’s climate change problem. At present, the plaintiffs are waiting for a ruling on their Motion for Leave to File a Second Amended Complaint and a Motion to Intervene.

In addition to Juliana v. United States, Our Children’s Trust has other cases pending in state courts and elsewhere across the world. For example, on March 13, 2020, the organization helped 16 youths in Montana file a constitutional climate lawsuit, arguing that Montana is violating their state constitutional rights to a clean and healthful environment. The plaintiffs and attorneys are currently gathering evidence and preparing for trial, which is scheduled for early 2023. Our Children’s Trust also participates in global cases. For instance, the organization is currently helping with the case Jóvenes v. Gobierno de México, where 15 youth plaintiffs are requesting the Mexican government comply with its constitutional obligations and issue regulations concerning Mexico’s climate change law. Currently, the plaintiffs are preparing for a hearing in 2022.  

Working on the cutting edge of climate change litigation and pushing the law beyond conventional doctrine has not come without difficulties and setbacks.  Yet, there are few causes as worthy as advocating for the welfare of children and unborn future generations who will suffer the most from climate change.  With her dedication to ensuring a livable planet for current and future generations, Julia Olson is truly a deserving recipient of the Katharine and George Alexander Prize.

Hippos as legal persons?

A federal court deemed hippos in Colombia to be “interested persons” under 28 USC 1728, allowing some federal officials to be deposed for a proceedings seeking personhood rights for descendants of Pablo Escobar’s cocaine hippos. This article and the implications of the legal success in this litigation brought by the Animal Legal Defense Fund piqued my interest.

Ordinarily, this would be just a legal oddity, though pretty unusual, since the U.S. courts have generally resisted lawsuits seeking legal personhood status for animals in the past. (For example, there is Tilikum v. Seaworld case (842 F.Supp. 2d 1259 (S.D.Cal. 2012)), where a federal court denied a 13th Amendment slavery claim by PETA on behalf the orca (killer whale) Tilikum for being kept in captivity. And also various unsuccessful habeas corpus cases brought by the leading animal rights lawyer Steven Wise of the Nonhuman Human Rights Project on behalf of chimpanzees kept in captivity.) But this is an interesting development in the context of more recent broader efforts, especially abroad, to accord legal personality and rights to animals and even rivers and landscapes. The best-known and probably most robust of these developments (discussed in the Rights of Nature chapter of our Comparative and Global Environmental Law Casebook) is a New Zealand statute that accords the Whanganui River (Te Awa Tupua) with legal personhood, the Te Awa Tupua (Whanganui River Claims Settlement) Act (2017).

While U.S. Magistrate Judge’s Litkovitz’s very short order in this litigation is interesting, it’s unfortunate that the media has jumped on the precarious implications of legal personhood for the hippos. The order itself addresses none of that. Ultimately, 28 U.S.C. 1728 is a procedural code provision designed to facilitate cross-border litigation, sort of like a professional courtesy for judges and lawyers from other countries because the US system has to rely reciprocally on such courtesies when cases here require evidence or testimony from abroad. An Above the Law blog post noted that Colombia does allow animals to bring lawsuits (or for cases to be brought on behalf of them), and so recognizing the state of Colombian law would not necessarily imply a change in US law. Furthermore, while I don’t focus on these procedural issues of law, this code provision has allowed agents of parties in foreign litigation to seek the federal courts’ assistance with witness testimony/depositions, just as the lawyers for the hippos (the animals’ supposed agents) have done here. So, unfortunately, the screaming headlines are overreaching by a lot. But what’s new about that . . .

Anyway, really interesting legal development; but likely of limited legal significance. (But significant enough that we’ll probably include a reference to it in the next edition of our casebook.)

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