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Faculty Scholarship

Professor Frank co-authors issue brief on California Coastal Act. August 21, 2017.

 

Forty years ago, California enacted the California Coastal Act to enhance public access, protect natural resources, and balance coastal development in the public interest. Today, growing challenges such as surging seas and rising population are testing that framework. This report draws from ideas discussed at a convening on coastal governance that explored the lessons of the past in order to chart a course for the next 40 years. The article may be accessed here: The Past, Present, and Future of California's Coastal Act: Overcoming Division to Comprehensively Manage the Coast 


Professor Frank publishes an Op-Ed in the S.F. & L.A. Daily Journal July 28, 2017.  

Recently, three California local governments filed lawsuits against 37 major energy companies, seeking damages for the companies’ alleged contributions to global greenhouse gas emissions that have, in turn, caused sea level rise, more intense coastal storms, and flooding that are threatening the municipalities’ coastlines. The article may be accessed here: Sea Level Suits are the Next Frontier in Climate Change Legislation 

 


Professor Frank publishes an Op-Ed in the S.F. & L.A. Daily Journal August 16, 2016.  

The California Supreme Court recently issued an important environmental and constitutional law decision that is simultaneously unique and part of a lengthy pattern: Friends of the Eel River v. North Coast Railroad Authority, 2017 DJDAR 7206 (July 28), is the latest of nearly a dozen Supreme Court cases in the last few years interpreting California’s most prominent and cross-cutting environmental law — the California Environmental Quality Act. But the ruling is unique in that it’s the first time in CEQA’s 47-year history that the justices have had the opportunity to consider the extent to which CEQA is preempted by federal law. The article may be accessed here: Next Stop, Even More CEQA Litigation 

 


Professor Frank publishes Op-Ed in the San Francisco Chronicle August 6, 2017 on H.R. 23.

Proposed federal legislation that would nullify state water laws and eliminate environmental protections under the federal Endangered Species Act regarding major federal and state water projects in California. The article may be accessed here: House-passed bill would evicerate state water, environmental laws


Professor Frank Testifies Before California Senate Committee on Environmental Quality

On February 22nd, Professor Richard Frank testified before the California Senate Committee on Environmental Quality in Sacramento, California. The hearing, "The Federal Clean Air Act: California’s Waivers: How California's Strict Air Quality Standards Have Created Economic Growth and Improved Public Health" sought to understand the impact California's regulation of tailpipe emission on the public health and economy of the state. Professor Frank opened the proceeding with a history of air quality legislation and California's waivers under §209 (b) of the Federal Clean Air Act.

California imposed the first tailpipe emission standards in 1966, a year before the first federal legislation (the Air Quality Act), and pursued aggressive air pollutant regulation, including the passage of the Mulford-Carrell Act in 1967, which created the Air Resources Board; and the promulgation of the nation's first oxides of nitrogen emissions standards for motor vehicles in 1972.

Congress, when enacting the Clean Air Act, acknowledged California's pioneering role in regulating air quality and, despite otherwise explicit preemption of motor vehicle emissions regulation by the states, created a broad carve-out for California to continue regulating emissions. Put another way, Congress recognized California's role, and consciously allowed the state to engage in what Supreme Court Justice Louis Brandeis called, "[O]ne of the happy incidences of our federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments...."

In addition to Professor Frank's testimony on the history and application of California's waivers under §209 (b), the Committee also heard from perspectives from state and local regulators, healthcare professionals, and researchers. Professor Frank's written testimony can be found here . More information on the hearing can be found here and the agenda here.


Professor Frank Publishes Op-Ed on Competing Drought Relief Bills

On November 8th, Professor Richard Frank published an op-ed in the Sacramento Bee regarding two competing bills designed to provide drought relief to California agriculture.  Frank summarizes HR 2898, sponsored U.S. Representative David Valadao and fellow House Republicans, and S 1894, a competing measure sponsored by Senators Dianne Feinstein and Barbara Boxer. Frank ultimately endorses the Senate approach.

"In sum, the House bill would simply reallocate a portion of California's finite water resources from one important use - preserving the environment - to another: agriculture. The Senate bill, by contrast, would expand the pie of available water supplies through federal support of a wide array of worthwhile water storage and conservation initiatives." The article may be viewed here: Drought relief bills reveal stark differences .


Professor Frank Testifies Before U.S. Senate Committee on Energy and Natural Resources

Richard Frank Senate TestimonyOn October 8, Professor Rick Frank testified before the U.S. Senate Energy and Natural Resources Committee in Washington D.C. He did so in response to an invitation from Senate Energy and Natural Resources Committee Chairman Lisa Murkowski (R-Alaska) and ranking Democratic Committee member Martha Cantwell (D-Washington). 

The subject of Professor Frank's testimony and the Committee's hearing was two competing bills designed to provide "federal drought relief" to California--H.R. 2898 (Valadeo) and S. 1894 (Feinstein/Boxer).  The focus of the Valadeo bill is to make more water available to agricultural users in California's Central Valley by amending various federal environmental laws and otherwise shifting finite water supplies from environmental purposes to agricultural purposes.  The Senate bill, by contrast, focuses on a more broad-based strategy of making more water supplies available through increased surface and groundwater storage facilities, conservation measures, storm water capture, and related options.  Professor Frank testified that the more comprehensive approach embodied in S. 1894 holds more promise than the narrower focus of H.R. 2898. The full text of his testimony may be viewed through the link below. His statement may be accessed here: Statement of Richard M. Frank .


Professor Frank Publishes Essay on California Supreme Court Climate Change Cases

On September 28, Professor Frank published an essay in the Daily Journal on three cases pending before the California Supreme Court that call into question whether climate change concerns should be addressed as part of the environmental review process required by the California Environmental Quality Act (CEQA).

"CEQA is the most powerful environmental assessment law not just in the United States, but the world," Frank writes, in part because unlike the National Environmental Policy Act, it requires the state not only to identify adverse environmental impacts of a proposed project, but also to prevent or mitigate them. The three cases, Center for Biological Diversity v. California Fish and Wildlife, Ballona Wetlands Land Trust v. City of Los Angeles, and National Forest Foundation v. San Diego Association of Governments, "all reflect the broad uncertainty that currently exists among state and local officials, the development community, conservation organizations, and environmental attorneys regarding the CEQA/climate change nexus," writes Frank.  "The court's decisions in those cases should go a long way towards integrating CEQA and California's climate change law and will bring welcome clarification as to how projected climate change impacts are properly analyzed under CEQA."


Professor Frank Files Brief on California Supreme Court Environmental Case

On September 8, Professor Frank filed a friend-of-the court brief  with the California Supreme Court in the pending case, San Diego Association of Governments v. Cleveland National Forest Foundation

The case involves the intersection of climate change law, transportation policy, and the California Environmental Quality Act (CEQA).  The specific legal question in the case--and the subject of the friend-of-the-court brief--is whether an environmental impact report prepared under CEQA in connection with a proposed regional transportation plan must analyze the plan's consistency with greenhouse gas emission reduction goals set forth in separate state law.  The brief argues that such consistency analysis is required under CEQA.  Professor Frank filed the brief on behalf of California's Planning and Conservation League and the Council of Infill Builders, a non-profit organization of real estate professionals committed to improving California through infill development practices.


Professor Frank Publishes Op-ed in San Francisco Chronicle on Water Law Reform

In April, Professor Frank published an op-ed in the San Francisco Chronicle on the need to reform California's water laws. He included suggestions as to how the system could be modernized and improved, including recognizing water as a public resource, improving requirements for monitoring and reporting water diversions, creating fixed terms for water rights permits, making water transfers easier and quicker, giving the environment a seat at the water allocation table, and increasing water rights enforcement. The article may be viewed here: California Water Law Must Change - Quickly .


Lessons from the West: Fracking and Water Resources

This short paper, “Lessons from the West: Fracking and Water Resources,” was prepared by Miles Hogan, CELPC Environmental Law Fellow.  The paper broadly examines how water law in western states applies to the overall use of water in fracking, and it raises issues with current and future regulation and litigation in this area.  The paper was compiled for a presentation given on November 9, 2012 at a workshop put on by Dividing the Waters and The National Judicial College.  This project demonstrates CELPC’s commitment to partnering with educators and policy institutes, and to providing a meaningful dialogue in key areas of environmental law and policy. The paper may be accessed here: Lessons from the West: Fracking and Water Resources .


Rocky Mountain Farmers Union v. Goldstene
: Brief of Amici Curiae Professors of Environmental Law in Support of Appellants

In June 2012 a group of environmental law professors, including Professor Rick Frank, submitted a brief in support of the California Air Resources Board's low carbon fuel standard. The brief may be accessed here: Amici Curiae .


Defining Good Infill

A Convening Report on SB 226 and the California Environmental Quality Act by Ethan N. Elkind, Rick Frank, and Sean Hecht. The report may be accessed here: Defining Good Infill .


Opinion Editorials regarding Proposition 26

In November 2010, California voters enacted Proposition 26, an initiative measure that was largely overshadowed by other, more heavily-publicized measures on last fall's general election ballot. But Proposition 26, which mandates that most future state and local fee systems can only be enacted by a two thirds vote of the California Legislature or local voters, will have a profound effect on a variety of public health, safety and environmental protection measures. Proposition 26 is likely to have an especially pronounced effect on California environmental programs, which in recent years have relied heavily on "polluter pays"-based fee systems to fund them.

Set forth below are two opinion columns relating to Proposition 26: the first, written by King Hall Law Professor Christopher Elmendorf, suggests that the initiative measure may be unconstitutional under California's "single subject rule." The second, penned by California Environmental Law & Policy Center Director Richard Frank, discusses the background of Proposition 26, as well as its particular, anticipated effects on a variety of state and local environmental programs. Prof. Elmendorf's article may be viewed here: “Voter Confusion and the Single-Subject Rule: Proposition 26 as a Test Case ." Prof. Frank's article may be viewed here: “Proposition 26: California’s Stealth Initiative.” 


Other Recent Publications