Environmental Legislation and Policy

Mr. Frank will moderate eight panel discussions by outside speakers on key California environmental law and policy issues. One of the sessions will focus on the law of global warming/climate control. Other topics may include environmental federalism (i.e., the respective California and federal roles in environmental regulation); the clash between environmental regulation and private property rights; the California Environmental Quality Act (CEQA); and coastal resource regulation and preservation in California. The guest speakers will include academics, practicing environmental attorneys, and non-legal experts (e.g., scientists and economists.)

This will be a survey course covering the core of federal public lands law, including the National Forest Management Act, the General Mining Law of 1872 and related laws, the Taylor Grazing Act and FLPMA. This course will also explore aspects of the federal public land system and the agencies that administer it, including the National Forest system, the National Park system, the National Wildlife Refuge system, and the Wilderness Act, as well as elements of state public lands law, including the public trust doctrine.

The most common source of environmental litigation is soil and groundwater pollution. The three principal bodies of law governing these disputes are the federal Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601, et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901, et seq.), as well as certain common law claims. This class is designed for two kinds of students: those interested in working in the environmental field and those that would like to develop a subspecialty in what will otherwise be a practice emphasizing some other area of law. CERCLA, RCRA and Common Law Claims (formerly known as Environmental Pollution) is designed to immerse students in the complexities of litigation involving soil and groundwater contamination. We will identify practical, realistic approaches to environmental advocacy and achieving results in the courtroom. Upon completion of the course, students will have a sophisticated appreciation of the tactical intricacies of litigation involving soil and groundwater pollution comparable to most lawyers with three or four years of experience. This course explores three universal stages of the litigation process, all in the context of soil and groundwater pollution: (i) analyzing potential theories of liability and available defenses; (ii) determining the appropriate sources of recovery; and (iii) selecting the desired remedy. Within each stage, the class will focus on the peculiarities of the law governing soil and groundwater contamination, as well as the strategic considerations unique to the environmental arena. Students will be exposed to the latest developments regarding CERCLA, RCRA and certain relevant common law schemes.

The course emphasizes western water law with special attention to California. We deal at length with public rights in water, the public trust, area of origin claims, federal and Indian reserved rights, interstate controversies, environmental assessment, and the limitations of the takings clause on reallocations of water use. Water pollution and water quality are addressed only peripherally. The course thesis asserts that water is a distinctive species of property, a community resource that can never be fully privatized and that must be used in the public interest. We explore this remarkable idea.