Health and Law 14
Illustration by Gary Taxali

Medicine Lake Highlands is a 200-mile swath of forest in California’s northeast corner. For more than 10,000 years, members of the Pit River, Klamath, Modoc, and Shasta tribes have viewed this area as a sacred landscape, believing the Highlands to have healing powers— especially the chilly waters of Medicine Lake.

Developers want to tap another kind of energy in the Highlands—heat from volcanic formations underground. Federal agencies awarded several dozen leases for geothermal energy projects in the area in the late 1980s and gave lessees 40-year extensions a decade later. Native American tribes and public interest groups went to court, arguing that the Interior Department’s Bureau of Land Management (BLM) had failed to consult with tribes and ignored environmental studies that predicted the projects would have significant harmful impacts.

Last spring, students from Stanford Law School’s Environmental Law Clinic argued before a three-judge panel in the Ninth  Circuit Court of Appeals that BLM’s continuation of 26 geothermal leases violated federal energy, environmental, and historic preservation laws—and the government’s fiduciary responsibility to Indian tribes (Pit River Tribe v. Bureau of Land Management). In July, the court ruled that the Pit River people and their allies had a right to challenge those leases. The court thus remanded the case back to the district court for further action.

“Even if a technology is green, like geothermal energy, these projects would have significant physical impacts, including deforestation, road building, traffic, and possible discharges to surface water and ground water,” says Evan Stein, JD ’15, who argued the case with Jason George, JD ’15. “You still have to do things the right way, and the BLM didn’t follow the law. Our clients felt that they hadn’t ever been consulted.”

Stein had worked on the clinic’s brief for the Ninth  Circuit while he was enrolled in the clinic during his 2L year. When oral argument was scheduled during his third year, he jumped at the chance to participate as an advanced clinic student. “I was surprised at how much had changed between writing the brief and preparing for oral argument,” he says. “We had to relearn the case and make sure that we were prepared and fluent in the law. Seeing all the work and strategy that goes into arguing a case was a great experience.”

Stein and George worked for two solid months with clinic attorneys and the clients to prepare for the hearing. They had to master the record and hone the legal arguments to fit the relatively short time allotted by the court. Other students in the clinic and several law school faculty members helped them prepare by serving as judges during “moot court” practice sessions. This preparation is at the heart of the mission for the clinical program at Stanford Law School, where law students take the reins on real cases and do the work of lawyers representing real clients, while under the close supervision of seasoned attorneys.

On the day of the argument, the SLS team went before the Ninth Circuit well-prepared to make its case, the room packed with observers including more than 100 members of the Pit River Tribe, as well as representatives from local environmental groups. “They were thankful for Stanford’s work, and we were grateful for the opportunity, so it was a really good relationship on both sides,” Stein says.

The opportunity for students at law schools across the nation to argue before a federal appellate court is rare, but it typically happens once or twice a year in the Environmental Law Clinic. The clinic frequently takes on challenges like Pit River, which has gone before the Ninth Circuit three times in the past decade.

“We try to find cases that raise big, challenging questions where we can add value,” says Deborah Sivas, JD ’87, Luke W. Cole Professor of Environmental Law, who has directed the clinic since its establishment in 1997. “Our cases might be perceived as ‘high-risk’ in the sense that they aim to shape and push policy in sometimes controversial areas of the law where it is unclear how the courts might rule. Private attorneys often are reluctant to take these cases because they can play out over many years without ever generating fees.

Law students have worked on a range of issues through the clinic, including marine resource conservation, endangered species protection, climate change, energy policy and water pollution. Several recent cases have focused on environmental impacts associated with agriculture. Many agricultural activities are exempt from regulation under the federal Clean Water Act, which focuses on pollution from so-called “point sources,” discrete discharges through drainpipes, outfalls, and channels. Regulating non-point sources, which release pollutants across broad areas, is harder because it is more complex to assign responsibility for the discharges.

“We’re hoping to get local regulators and state courts to think expansively about how the law should apply to agriculture,” says Sivas. “It’s the ‘long game’—helping our clients change the public mindset about agricultural pollution and its impacts on local communities and ecosystems.”

This work is slowly starting to pay off. Over the summer, a judge on the Sacramento County Superior Court ruled that the State Water Resources Control Board’s “waiver” of state permitting requirements for agricultural discharges along the Central Coast violated state law. And just a few months earlier, a Monterey County Superior Court judge ruled that the county’s agricultural water agency is polluting California’s Central Coast by draining farm runoff to the ocean and must obtain a permit for such discharges. “The agency claimed that it was just transporting wastewater off of fields, but it controlled all of the water in the Salinas Valley and decided where it would go,” says Malia McPherson, JD ’16, a member of the student team on both cases, arguing on behalf of the nonprofit Monterey Coastkeeper and others.

McPherson enrolled in the clinic because she was strongly interested in cases that addressed threats to public health. “Water problems in the Salinas Valley are horrendous. It’s contaminated in many places with nitrates and arsenic,” she says. “It’s urgent to clean it up.”

California is currently in the fourth year of what some scientists calculate may be its worst drought in more than a millennium. Sivas expects cases involving water rights and allocations to dominate the clinic’s docket for the next several years.

“Some people in the Central Valley are out of water, while senior rights holders up the road are flood-irrigating their fields as if there’s no shortage at all,” Sivas says. “A lot of people want to rethink the state water system, and everyone is suing everyone else. There’s a real need to defend the public interest as this process unfolds.” SL