In Win for ELC, Court Puts Bay Area Biofuel Megaproject On Hold

In a significant win for ELC, co-counsel, and clients, on October 12, Contra Costa County Superior Court prohibited operations at a biofuel refinery in Rodeo, California until the county conducts a new environmental analysis to replace its legally defective initial analysis. “We applaud the court for rejecting Phillips 66’s attempt to circumvent the public process and begin operations without valid environmental review,” said Sara Evall (’25). “As the court reaffirmed today, the county is obligated to reassess the project based on community members’ input and an unbiased record. Rights of the public to informed democratic decision-making come before Phillips 66’s bottom line.” Mark Goldstein (‘24) and Jessica Lu (‘24) co-authored merits briefs, and Mark Goldstein argued for Petitioners at the merits hearing. Read more herehere1 and herehere2.

In Response to ELC Advocacy, U.S. EPA Civil Rights Office Opens Investigation Into California Water Agency’s History of Discrimination

On August 8, the Environmental Protection Agency’s civil rights office formally accepted for investigation a complaint against the State Water Resources Control Board filed by ELC on behalf of a coalition of California Native American tribes and environmental justice organizations. ELC’s complaint – filed in December 2022 on behalf of clients Shingle Springs Band of Miwok Indians, Winnemem Wintu Tribe, Little Manila Rising, Restore the Delta, and Save California Salmon – documents the history of dispossession and racism underlying the evolution of water quality standards in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (Bay-Delta). It also outlines the disproportionate impact that the State Water Board’s failure to update these standards has had on Native tribes and communities of color. The complaint was drafted by students Raul Quintana (’24) and Mark Raftrey (’23), and Sydney Speizman (‘23) and Alison Cooney (‘23) also provided representation. Read more press coverage of the EPA decision herehere3, herehere4, and herehere5.

ELC Challenges BLM’s Decisions Related to Major Desert Pumped Storage Project

In September, ELC filed a complaint in the Central District of California on behalf of the National Parks Conservation Association, challenging the Bureau of Land Management’s approval of a right of way and adoption of a land use plan amendment that facilitate the development of a massive pumped-storage project in a fragile desert ecosystem adjacent to Joshua Tree National Park. The proposed project would withdraw 35 billion gallons of groundwater over its 50-year lifetime and threaten iconic species like the desert tortoise. In addition, the project’s remote location makes it ill-suited to serve California’s energy storage needs. Read the complaint herehere6.

Environmental Law Clinic Challenges Forest Service Logging Project

ELC filed a lawsuit on behalf of the John Muir Project of Earth Island Institute, the Plumas Forest Project, and Feather River Action! challenging the United States Forest Service’s decision to log 217,721 acres of the Plumas National Forest – including important mature forest habitat – without fulsome environmental review. While the stated purpose of the project is community protection from wildfires, much of this logging will take place in remote areas, and there are substantial questions about whether alternate approaches to community protection would be equally if not more feasible and effective. This area also provides habitat to important and imperiled species, such as the California spotted owl. Read the complaint drafted by Jerry Zhu ‘24 and Stephen Ferruolo ‘25 herehere7.

Clinic Pressures State Water Board to Strengthen Water Quality Standards for the Bay-Delta

ELC filed comments on behalf of the Buena Vista Rancheria of Me-Wuk Indians, Shingle Springs Band of Miwok Indians, Winnemem Wintu Tribe, Little Manila Rising, and Restore the Delta on the State Water Board’s staff report in its process to update water quality standards for the San Francisco Bay Delta. ELC’s comments, drafted by Delaina Castillo (‘25) and Makena Kauhane (‘25), point out several issues with the Staff Report, including its reliance on voluntary agreements as a substitute for instream flow requirements. They recommend that the Board correct the staff report and its environmental document to address those deficiencies, engage in legally necessary consultation with California Native American Tribes, and designate Tribal Beneficial Uses on a watershed-wide basis, in addition to other steps. Read the comments herehere8.

Clinic Lends California Environmental Quality Act Expertise In Order To Protect Tribal Interests, Advance Environmental Justice, and Oppose Discharge of Contaminated Wastewater Discharges

ELC recently filed amicus briefs in two important California Environmental Quality Act (CEQA) cases. First, ELC student Rob Vogel (‘25) drafted an amicus brief on behalf of the Winnemem Wintu Tribe, Communities for a Better Environment and Restore the Delta in an appeal of a trial court decision that would have required CEQA petitioners to file CEQA lawsuits during their administrative appeals, even though courts have consistently said that step is not necessary. ELC’s brief outlines the importance of allowing petitioners to file after administrative appeal for public participation in the CEQA process, environmental justice organizations advancing their missions, and tribes engaging in the CEQA process. Second, ELC students Luke Norquist (‘24) and Kevin Wang (‘25) drafted an amicus brief on behalf of clients Center for Biological Diversity in a case concerning environmental review of injection of chemical-laden wastewater underground. Their brief affirms the importance of allowing public interest petitioners to have their day in court and of applying the exemptions to CEQA narrowly, consistent with the intention with which those exemptions were created. Read ELC’s briefs herehere8 and herehere9.

Other highlights include:

• On October 12, ELC student Conrad Sproul (‘24) presented argument before the Northern District of California in ELC’s challenge to the federal government’s management of off-highway vehicle use in the Western Mojave desert.
• In response to ELC’s victory against the state for failing to conduct proper environmental analysis when deciding whether to renew the rat poison diphacinone’s registration, the California Department of Pesticide Regulation recently began reevaluating the safety of the toxic rat poison. The governor also signed a bill imposing a statutory moratorium on the use of this dangerous rodenticide because of its secondary poisoning of other wildlife. Read more herehere10 and herehere11.
• Jess Lu (‘24) argued in California Superior Court on Monday, April 22 in the Earth Island Institute case asserting unfair competition and public nuisance claims against the ten companies most responsible for single use plastic pollution in the marine environment.
• ELC students Kyrylo Korol (‘25) and Robert Vogel (‘25) drafted a brief and presented argument on behalf of the National Parks Conservation Association (NPCA) in the U.S. District Court for the Central District of California, opposing an effort by Eagle Crest Energy Company to transfer NPCA’s lawsuit against federal land approvals for the Eagle Mountain Pumped Storage Energy Project to the Eastern District. ELC students Sofia Tabernilla (‘25) and Victor Wu (‘25) also drafted a motion to intervene and comments on behalf of the NPCA to the Federal Energy Regulatory Commission on a draft environmental assessment related to the Eagle Mountain Pumped Storage Energy Project.
• ELC students Matthew Benjamin (‘25) and Noah Rothman (‘24) drafted an opening appellate brief on behalf of the California Coastal Commission, defending the Commission’s authority to phase out off-highway vehicle use at Oceano Dunes.
• ELC students Sarah Evall (‘25) and Stephen Read (‘24) drafted an opening appellate brief on behalf of Communities for a Better Environment and Center for Biological Diversity in a challenge to the conversion of a petroleum refinery to process biofuels.
• ELC students Hannah Motley (‘25) and Lisa Lu (‘25) presented argument on behalf of clients Friends of Calwa and Fresno Building Healthy Communities in a challenge to a highway project in overburdened communities.

We look forward to another year of impactful student work in 2024–2025!

Native Bumblebees Become First Insects Protected Under the California Endangered Species Act

In a major win for Stanford Environmental Law Clinic clients, biodiverse ecosystems, and everyone who eats food, a California Court of Appeal has ruled that the state can protect bumblebees under the California Endangered Species Act (CESA).  In a unanimous published opinion, the Court of Appeal explained that CESA’s protections for fish can include insects because the California Legislature defined the term “fish” as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”  Thus, CESA’s definition of “fish” is a legal term of art that extends beyond the commonly understood meaning of “fish.”  In reaching its conclusions, the Court cited examples of other land-based invertebrate species that are protected under CESA, vast legislative history, controlling case law applying the definition of “fish” to CESA, and courts’ obligation to give liberal meaning to the terms of protective statutes like CESA.

Sam Joyce (JD ’23) helped argue the case, building on the work of many Clinic students throughout the trial court proceedings and appeal, including Jules Ross (JD ’22), Jim Santel (JD ’22), Caroline Zhang (JD ’22), and Joe Ingrao (JD ’21).

The court’s ruling comes at a critical time: over one-third of California’s food production requires an animal pollinator, but many pollinator populations are plunging.  The Fish and Game Commission can now move forward with protecting the four bumblebee species and other pollinators before it is too late.  Read more herehere18.

ELC Win Compels Federal Government to Reconsider Endangered Species Act Protections for the Bi-State Sage Grouse

After a several-year battle, Environmental Law Clinic students have shown that bi-state sage grouse – large, striking birds known for their distinctive mating dance – warrant reconsideration for federal protection as a threatened species.

The bi-state sage grouse’s habitat has been decimated by mining, grazing, and other development, leading the U.S. Fish & Wildlife Service to conclude in 2013 that the species should be listed as threatened under the federal Endangered Species Act.  But two years later, in an abrupt about-face, the government withdrew the listing proposal.  ELC and the Center for Biological Diversity, on behalf of a coalition of conservation groups, sued the federal government challenging the Service’s withdrawal decision.

The U.S. District Court for the Northern District of California held that the Service failed to rely on the best available science, as the Act requires, in concluding that that the sage grouse’s population is above the minimum threshold for viability.  The Fish & Wildlife Service must now go back to the drawing board and issue a new final listing decision.

Clinic students Daniel Ahrens (JD ’23) and Zach Rego (JD ’23), building on the work of Chris Meyer (JD ’22) and Mikaela Pyatt (JD ‘22), co-wrote the summary judgment briefing and presented oral argument in federal court.  Read more herehere19.

ELC Reaches Settlement to Protect Endangered Coho Salmon

The Clinic, on behalf of clients Salmon Protection and Watershed Network (SPAWN) and Center for Biological Diversity, has agreed in principle to a settlement with Marin County to ensure adequate protections for imperiled salmon and steelhead in the San Geronimo Valley under Marin County’s countywide development plan.  The settlement spells out important terms of an ordinance that would regulate streamside development in sensitive riparian corridors and provides for other measures to protect essential salmonid habitat, like County-provided inspections.  If it is finalized, the settlement will be the culmination of the Clinic’s decade-long effort on behalf of clients to advocate for urgently needed habitat restoration and stronger regulation of future development in areas that are key to the survival of these species.

Many students have worked on this matter, including most recently Leehi Yona (JD ’23) and Mariah Mastrodimos (JD ’23), who negotiated the terms of the settlement this spring. Marin County’s Planning Commission and Board of Supervisors will consider the settlement at public hearings this summer.  Read more herehere20.

ELC Students Work to Change Racist California Water Policy

Stanford Environmental Law Clinic is supporting efforts by Tribes and environmental justice advocates to reframe California water rights. Clinic students Alison Cooney (JD ’22) and Sydney Speizman (JD ’22) filed an amicus brief in the California Court of Appeal on behalf of the Winnemem Wintu Tribe, Shingle Springs Band of Miwok Indians, Little Manila Rising, and Restore the Delta calling for reforming the water rights system to more effectively and equitably control the state’s water resources. The coalition‘s amicus brief argues that exempting pre-1914 water rights from state regulation and enforcement fails to grapple with the historical context of these water rights, which are rooted in systematic discrimination, exclusion, and violence against Indigenous peoples and communities of color.

The Clinic also submitted a Petition for Rulemaking to the State Water Resources Control Board to Review and Revise Bay-Delta Water Quality Standards.  The San Francisco Bay/Sacramento-San Joaquin Delta drains nearly half the surface water in California, covering a watershed that stretches from the Cascade Range to the North to the Tehachapi Mountains to the south. The Petition requests that the State Water Resources Control Board immediately begin a comprehensive review of water quality standards governing the Bay-Delta and revise those standards in consultation tribes and environmental justice communities to ensure protection of beneficial uses and public trust resources.  Read more herehere21.

Local Oil Well Ban Goes to CA Supreme Court

In response to concerns about the safety and environmental impacts of certain oil and gas industry practices in Monterey County, Clinic client Protect Monterey County successfully galvanized the community into action.  The result was Measure Z, a 2016 ballot initiative that bans new fracking, prohibits new oil wells, and phases out oil-industry wastewater disposal.  The trial and appellate courts upheld the fracking ban, but struck down the ban on new oil and gas wells and wastewater disposal, finding that these portions are preempted by state and federal law.  In an exciting development, though, the Clinic’s Petition for Review to the California Supreme Court was accepted on the key preemption argument.  Read more here22.

EPA taking steps to regulate leaded aviation fuel

Clinic students Ada Statler (JD ’22), Mat Simkovits (JD ’23), and Rachel Bowanko (JD ’22) have been representing the County of Santa Clara alongside environmental and community groups represented by Earthjustice in efforts to obtain a federal ban on leaded aviation fuel.  Leaded aviation fuel is the last remaining leaded transportation fuel and accounts for 70% of the country’s airborne lead pollution.  Clinic students drafted a comment letter to the Environmental Protection Agency (EPA), signed onto a petition for rulemaking that aims to eliminate lead pollution from aircraft nationwide under the Clean Air Act, and submitted a letter of support for the petition to the EPA on behalf of a coalition of public agencies.  The EPA announced this winter that it will grant the petition for rulemaking, with plans to finalize what’s known as an “endangerment finding” for leaded aviation fuel in 2023.  Read more herehere23.

ELC Works to Halt Logging of Pacific Fisher Habitat

Last spring, the Clinic filed suit on behalf of client Unite the Parks to protect the Pacific fisher, a geographically isolated and endangered mammal with critical habitat in the Southern Sierra Nevada.  The Pacific fisher faces an uphill battle as their already diminished habitat gets destroyed by wildfire and logging.  The Clinic sought a preliminary injunction to temporarily halt 31 logging projects and to compel the US Forest Service to take a hard look at how logging will impact the fishers’ dwindling population in light of new wildfire impacts in the region.  The Northern District denied the motion, but after oral argument by JD ’22 students Sidni Frederick and Christopher Meyer, the Ninth Circuit reversed in part this spring, giving the Clinic another chance to halt logging of Pacific fisher habitat.  Read more herehere24.

We look forward to another productive year in 2022–2023!

Saving Imperiled Species

The Bi-State Sage-Grouse has fared poorly in recent decades, with its habitat increasingly destroyed and fragmented by wildfires, mining projects, invasive species, pesticides, and off-road vehicles. In response, the U.S. Forest Service drafted a National Forest Plan Amendment to protect the sage-grouse, including measures that limit the times when off-road vehicles may travel through prime sage-grouse habitat and set a wide buffer around breeding grounds.  Off-road vehicle groups sued the Forest Service, and the Clinic intervened to defend the National Forest Plan Amendment on behalf of our environmental coalition clients. Clinic students Larry Liu and Thomas Schubert wrote and filed a motion for summary judgment in federal district court in Nevada this fall, with further briefing to continue in the winter quarter.

In response to the precipitous decline in bee populations, the California Department of Fish and Wildlife recently determined that several native bee species are eligible as candidates for protection under the California Endangered Species Act. A broad coalition of entities that support and promote agricultural interests sued, alleging that making the bees eligible for protection will harm the farming community. Clinic clients the Xerces Society, Defenders of Wildlife, and the Center for Food Safety, which petitioned the Department of Fish and Wildlife to protect the bees, are seeking to intervene in this case to support the protection of these imperiled bees. Clinic students Chelsey Davidson and Joseph Ingrao drafted a motion to intervene and conducted substantive research into the relevant legal issues.

On behalf of Clinic clients Salmon Protection and Watershed Network and Center for Biological Diversity, ELC filed a new case in Marin County Superior Court. This case renews our efforts to protect critically important, un-dammed habitat for imperiled anadromous fish, alleging that Marin County failed to mitigate impacts to endangered Coho salmon and threatened steelhead in its August 2019 Final Supplemental Environmental Impact Report for its Countywide General Plan. Clinic student Will Spelder represented ELC clients in a case management conference and in settlement negotiations.

Protecting Sacred Tribal Lands

After a recent win in the Ninth Circuit upholding the invalidation of 26 geothermal leases that threaten Clinic client Pit River Tribe’s sacred Medicine Lake Highlands, ELC was back in federal district court with a new case this fall. This new case seeks to end the remaining geothermal lease in the Medicine Lake Highlands that the government and leaseholder have failed to diligently develop under the Geothermal Steam Act. Clinic students Larry Liu, Anna Patej, and Daniel Irvin argued in the Northern District of California this fall, opposing a Motion to Dismiss and Motion to Transfer this case.

Enforcing California’s Water Quality Laws

Unregulated pollution from intense agricultural practices has severely contaminated drinking water sources and creeks and rivers, harming millions of California residents who rely on surface and groundwater for drinking and millions of creatures who rely on unspoiled habitat. To combat this agricultural pollution, ELC and its coalition of environmental clients filed an opening brief in a new case in Sacramento Superior Court in December. This lawsuit alleges that, once again, the permit issued by the Regional Water Board – which allows agricultural runoff polluted with nitrates and pesticides from 835,000 irrigated acres of mostly large farms in the Central Valley – violates state law. This volley is the latest in a multi-year effort to enforce the California Water Code’s Nonpoint Source and Antidegradation Policies. Building on the work of Brittany Cazakoff, Daniel Rubin, and Bryan Shpall, advanced student Lori Ding drafted the opening brief on appeal and will work on the reply in the spring.

Other Clinic Projects

• Clinic students Sam Gorsche and Thomas Schubert drafted two local land use initiatives designed to discourage urban sprawl and encourage preservation of open space and agricultural land.
• Thomas Schubert drafted an amicus curiae letter in support of the petition for review to the California Supreme Court in Golden Door Properties, LLC, et al. v. Superior Court, No. S258564. The letter defended the government transparency and accountability requirements embodied in the California Environmental Quality Act and detailed the need for further review to clarify the scope and effect of the Act’s administrative-record requirements. The California Supreme Court granted the Petition for Review.
• Chelsey Davidson and Will Spelder researched and evaluated the State Water Board’s recent adoption of expanded protections for state wetlands.

  

This year, the Clinic challenged the U.S. Fish and Wildlife Service’s failure to list the Bi-State Sage-Grouse as threatened under the Endangered Species Act. As with all ELC projects, students have played a leading role in the litigation.  Last year, clinic students Faaris Akremi (JD ’18), Kirsten Dedrickson (JD ’18), and David Popkin (JD ’18) argued preliminary motions in the U.S. District Court for the Northern District of California.  This year, Faaris and Kirsten helped draft summary judgment motions.  Oral argument is scheduled for March, 2018.

This summer, the Environmental Law Clinic was instrumental in achieving a historic victory for the California coast. After nearly 100 years of extensive sand mining—which has ravaged the coastline and decimated local sand supply—CEMEX’s sand mining operations in Marina, CA will finally be shut down.  In response to increasing public concern and the emerging scientific consensus on the adverse impacts from sand mining, the City of Marina engaged the Stanford Environmental Law Clinic to assist with a legal analysis concerning whether the impacts from sand mining constitute a public nuisance.  Many students contributed to this analysis, most recently Shannon Galvin (JD ’18), Faaris (Fares) Akremi (JD ‘18), John Ugai (JD ’17), and Miles Muller (JD/MS ’18).  The city took bold action to pass a resolution declaring the Cemex operations to be a public nuisance.  This step, combined with mounting pressure from state entities, led CEMEX to reach final settlement agreements with the city and state that will close down the last coastal sand mining operation in the United States.

ELC is also continuing to combat the agricultural pollution contaminating California’s waterways.  Just this fall ELC student Faaris (Fares) Akremi (JD ’18) appeared before the California Court of Appeal for the Sixth District, arguing that the Superior Court ruling holding a local water agency accountable for its role in agricultural contamination should be upheld.  In a separate but related case, the Clinic just filed suit against the State and Central Coast Regional Water Quality Control Boards, alleging that the water boards have systematically failed to adequately regulate agricultural discharges throughout the state, in violation of the Porter-Cologne Act and various statewide policies.

Other recent Clinic highlights include:

• In a major victory, the California Supreme Court ruled that federal laws governing railroads do not preempt CEQA, California’s bedrock environmental statute. ELC students’ diligent representation of one of the Plaintiffs led to a reversal of an appellate decision that would have exempted public rail from environmental oversight.  Read the opinion herehere31.
• In another environmental win, the California Supreme Court ruled that homeowners forfeited their challenge to a coastal development permit’s conditions when they accepted the permit’s benefits and built a seawall on their properties.  ELC filed an amicus brief on behalf of Surfrider Foundation supporting the Coastal Commission and documenting the negative impacts from seawalls. Read the opinion herehere32.
• The Clinic is serving as counsel to the City of Oakland in the City’s efforts to defend an Ordinance it passed to ban the storage and handling of coal at Oakland facilities based on health and safety concerns to local residents.  A developer at an affected rail-to-ship terminal has challenged the Ordinance for violating an existing development agreement and burdening interstate commerce, as well as being preempted by federal law. Clinic students are currently drafting a motion for summary judgment.  The case is scheduled to go to trial in January.

• ELC is currently fighting a large-scale commercial desalination project in Huntington Beach, challenging a water infrastructure project that will further harm the imperiled San Francisco Bay Delta, and taking on major oil companies to defend a voter initiative that restricts oil and gas operationsin Monterey County, CA.

During the spring quarter, our advanced students continued to carry the torch, drafting briefs, petitioning the State Water Resources Control Board, advocating at hearings, and even arguing at trial.

In April, the Clinic was back in court, with Mari Takemoto-Chock (JD ’17) advocating to save tribal lands from industrial geothermal development. Surrounded by tribal members and environmental advocates, the District Court Judge indicated that he will grant the Clinic’s motion for summary judgment, invalidating 26 geothermal energy leases on sacred tribal lands. This is a major victory for our clients: the environmental impacts from geothermal development would significantly degrade the value of the Medicine Lake Highlands, an area that has been used by the tribes for spiritual guidance, religious ceremonies, and traditional doctoring practices for thousands of years. Check out our blog for more information.

In May, advanced clinic students Nikki Leon (JD ’16) and Richard Griffin (JD ’17)  went to trial in an effort to bring a desalination plant in Cambria, California into compliance with state law.  The plant, which was hastily built without any environmental review under California’s bedrock environmental statute, has led to a number of avoidable impacts to water quality and other public resources.

Surrounded and energized by ELC’s clients and public grassroots advocates, the students had the opportunity to speak multiple times, successfully fending off objections from opposing counsel and providing strong rebuttals to opposing counsel’s claims.

Leon and Griffin have been hard at work on this case for five months, taking depositions, filing motions and trial briefs, and arguing in both a hearing on a motion and a merits hearing. “It was a great experience to completely immerse ourselves in this case and get to see it through to trial,” Mr. Griffin said. “I can’t think of a better way to have spent my last official day of law school,” Ms. Leon added.

The Clinic hit the ground running this quarter, with a crash course in environmental lawyering and an exciting set of trips from Salinas to Mount Shasta to meet clients, public agencies, and stakeholders in several of our key cases.

To kick things off, we headed south to the Salinas Valley to witness the impacts of industrial agriculture on the area’s waterways. For several years, the clinic has represented Monterey Coastkeeper in challenging the Monterey County Water Resources Agency’s failure to regulate agricultural wastewater discharged into ditches in the area. The clinic scored a recent win in the case when the Monterey County Superior Court ruled that the agency—which operates and maintains an extensive drainage system for contaminated, agricultural runoff—must obtain a discharge permit for these ditches.

We then traveled north to Mount Shasta to meet the clients in one of the clinic’s oldest cases. The clinic represents the Pit River Tribe and local environmental organizations in their decades-long struggle to protect Medicine Lake and its surrounding highlands from industrial geothermal development. Clinic students then attended a Pit River Tribal Council meeting to meet the new councilmembers, and Clinic students Madeleine McKenna (J.D. ’16) and Mari Takemoto-Chock (J.D. ’17) updated the Tribe on the case. After a significant procedural victory in the Ninth Circuit over the summer, the case is back in the district court where we will argue that the Bureau of Land Management illegally extended twenty-six geothermal leases in the highlands.

Then, in October, advanced clinic student Abigail Barnes (JD,’16) prepared for and argued Presidio Historical Association v. Presidio Trust before a three-judge panel at the Ninth Circuit.

Ms. Barnes and our clients, the Presidio Historical Association and the Sierra Club, were trying to halt the proposed construction of a new, 70,000-square foot hotel in the heart of the historic Presidio. For more on this case, check out our blog.

Meanwhile, the Environmental Law Clinic scored a major victory against the U.S. Environmental Protection Agency (EPA) in the Second Circuit Court of Appeals. In Nat. Res. Def. Council v. U.S. E.P.A., 804 F.3d 149 (2d Cir. 2015), the Court held that the EPA’s nationwide permit governing ship ballast water discharges did not meet the technology and water quality requirements of the Clean Water Act. The nationwide permit has been inadequate to curb the spread of aquatic invasive species like the zebra and quagga mussels that have devastated the Great Lakes and have now spread to the West Coast through ship discharges.

This victory comes after the Clinic’s long battle and multiple lawsuits with the EPA over how invasive species should be dealt with under the Clean Water Act. The ruling will help curb the spread of invasive species, which can wreak havoc on native species and ecosystems and can clog water and power plant intake pipes.

Finally, Environmental Law Clinic students hit the road again in November in the clinic’s continued fight against a so-called “emergency” desalination plant in Cambria, California. Hoping to spur the Coastal Commission to use its enforcement authority to bring the facility into compliance with the mandates of the Coastal Act, Julian Aris (JD ’17) presented at the Coastal Commission meeting in Half Moon Bay on November 5. A few days later, the clinic’s full-time students visited the desalination plant site in Cambria in preparation for a hearing in San Luis Obispo Superior Court on November 10. At the hearing, Cathrina Altimari-Brown (JD ’17) argued a procedural motion to compel completion of the record for our environmental review claim, while Julian impressed upon the court the importance of moving forward with discovery on our Coastal Act claims.

We look forward to announcing another busy and productive winter quarter working on these issues with new full-time and returning advanced clinic students!

An unprecedented number of students—eight full-time students and ten advanced students—made this past quarter one of the Environmental Law Clinic’s most dynamic. Clinic students:

• wrote briefs in cases in state trial court, the California Supreme Court, the U.S. Court of Appeals for the D.C. Circuit, and the U.S. Supreme Court;
• presented oral argument in two state trial courts and the U.S. Court of Appeals for the Ninth Circuit;
• researched and drafted memoranda to clients on cutting-edge legal issues; and
• filed comments on draft resource management plans before state and federal administrative agencies.

All told, Clinic students wrote nine briefs in six cases, presented oral argument at four court hearings in two cases, prepared memoranda for Clinic clients on emerging legal issues in two matters, and submitted administrative comments in one matter. A few highlights are described below.

Winter 2015 ELC full-time students visit Monterey Bay (Jan. 2015)

The Clinic kicked off the quarter with a two-day visit to Monterey Bay, which would form the basis for much of the work performed by students over the course of the winter quarter. Students first met with client The Otter Project/Monterey Coastkeeper to learn about two Clinic cases aimed at cleaning up fertilizer and pesticide pollution from farms in the Salinas Valley and other areas. In the first case, filed against the agency that regulates agricultural discharges (the State Water Resources Control Board), full-time students Ted Karch (JD ’16), Carolina de Armas (JD ’16), and Aaron Stanton (JD ’16), over the course of the quarter, authored an opposition to a demurrer and a merits reply brief in Monterey Superior Court.

In the second agricultural pollution case, filed against the agency that collects and pumps farmers’ discharges to other water bodies and ultimately the Monterey Bay (the Monterey County Water Resources Agency), full-time students Malia McPherson (JD ’16) and Adam Bowling (JD ’16) authored several briefs and presented argument at two hearings, while advanced student Philip Womble (JD ‘16/PhD ’18) presented argument at a third hearing, all in Monterey Superior Court. The court issued an intended decision in Monterey Coastkeeper’s favor on April 24, 2015, ruling that the Water Resources Agency must obtain a discharge permit under state law.

Adam Bowling (JD ’16) and Malia McPherson (JD ’16), with Monterey Coastkeeper client Steve Shimek, following their successful argument in Monterey Superior Court (Mar. 2015)

On their initial trip to Monterey, Clinic students also spent a day with staff from the Center for Ocean Solutions and Clinic client Resources Legacy Fund to learn about how seawalls, which are intended to protect shoreline properties and structures, actually make coastal erosion worse. Thus, when full-time students Malia McPherson and Adam Bowling were not trying to remedy agricultural pollution, they worked on matters aimed at supporting innovative legal approaches to mitigating coastal erosion.

Full-time students John Drdek (JD ’16) and Michael Todisco (JD ’16) also wrote cutting-edge legal memoranda on coastal erosion for Clinic clients. In addition, John and Mike, joined by advanced student Liz Jones (JD ’16), helped draft portions of a merits brief filed in the California Supreme Court, in Friends of the Eel River v. North Coast Railroad Authority. The brief for the plaintiffs argues that federal law does not pre-empt the California Environmental Quality Act, which requires environmental review of state projects, including rail lines.

Much of the Clinic’s work in Winter 2015 concerned other issues in places far from Monterey. Advanced students Evan Stein (JD ’15) and Jason George (JD ’15) presented oral argument before a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The case will help decide the future of the Medicine Lake Highlands, an area of northeastern California that is sacred to, and has been used for spiritual and cultural purposes by, members of the Pit River Tribe and other Tribes for over 10,000 years. The Highlands also serve as a major water supply source for California and hold exceptional recreational, habitat, and other environmental resources. At the argument, Evan and Jason represented the Tribe and a number of environmental organizations in their challenge to plans to further expose the Highlands to industrial geothermal development. Advanced students Rose Stanley (JD ’16), Amanda Prasuhn (JD ’15), and Philip Womble worked on a variety of related policy matters.

Jason George (JD ’15) and Evan Stein (JD ’15), with clients, at the Ninth Circuit in San Francisco (Mar. 2015)

Equally concerned with how to appropriately manage public lands, longstanding Clinic client the National Parks Conservation Association enlisted advanced student Elizabeth Hook (JD ’15) to author comments on the draft California Desert Renewable Energy Conservation Plan, which will, when finalized, guide renewable energy development on public lands in the desert Southwest for the foreseeable future. The comments concern the Conservation Plan’s effects on National Park System resources, especially those in and near Joshua Tree National Park.

Meanwhile, full-time student Elizabeth Berardi (JD ’15) joined advanced students Heather Kryczka (JD ’16) and Liz Jones in authoring an opening brief in the U.S. Court of Appeals for the D.C. Circuit. The case, litigated with the Environmental Law Clinic at the University of California–Irvine on behalf of the Sierra Club and Galveston Baykeeper, is one of several cases challenging decisions by the Federal Energy Regulatory Commission (FERC) to allow liquefied natural gas stations along the Gulf Coast to switch from importing to exporting natural gas. At issue is whether FERC complied with the Clean Air Act and the National Environmental Policy Act in approving the switch.

In another case concerning FERC, advanced student Raza Rasheed (JD ’15) prepared for the possibility that the U.S. Supreme Court would take an important case out of the DC Circuit concerning whether FERC may regulate “demand response,” an alternative to building more power plants when there is high demand by allowing power users to agree to reduce their demand during peak load. Sure enough, on May 4, 2015, the Supreme Court accepted the case for review, and Raza is now drafting an important amicus brief on behalf of energy economists and academics arguing in favor of FERC’s regulatory jurisdiction.

Finally, back on California’s Central Coast, full-time students Ted Karch and Aaron Stanton prepared legal memoranda for Clinic clients on the legal challenges to local bans on hydraulic fracturing (“fracking”) in San Benito County and other jurisdictions.

And full-time students Elizabeth Berardi and Carolina de Armas, along with advanced student Abigail Barnes (JD ’16), continued the Clinic’s work on a challenge to a desalination project in the city of Cambria on behalf of Landwatch San Luis Obispo County. Despite the need for long-term and deliberative planning about how to best manage Cambria’s spare water resources, the project was hastily built without the environmental review required by state law. Abby, Elizabeth, and Carolina authored a preliminary injunction motion, reply in support of that motion, and other pleadings, and Abby argued the motion in San Luis Obispo Superior Court.

Abigail Barnes (JD ’16) argues in San Luis Obispo Superior Court (Mar. 2015)

In the spring, the Clinic will continue its work on many of these matters with advanced students.

Medicine Lake Highlands, California