The UCLA Journal of Environmental Law and Policy produces a high quality biannual journal on cutting-edge environmental legal and policy matters. JELP is entirely run and produced by students at UCLA School of Law. Articles in JELP are written by leading scholars throughout the country and often the world, and by students focusing on environmental law at UCLA.
Volume 38, Issue 2, 2020
UCLA Journal of Environmental Law & Policy
Table of Contents
The Sustainable Groundwater Management Act and the Common Law of Groundwater Rights—Finding a Consistent Path Forward for Groundwater Allocation
In 2014, the California State Legislature enacted the Sustainable Groundwater Management Act (SGMA), which requires the formation of new local agencies, known as Groundwater Sustainability Agencies (GSAs), to sustainably manage groundwater basins throughout the state. The statute represents the first statewide framework for groundwater management in California. Among other tasks, GSAs, especially those in overdrafted basins, will have to allocate available water among users and set up systems to hold pumpers to their allocated limit. However, SGMA did not change the longstanding framework of groundwater pumping rights established by California courts. This sets up the possibility of conflict between groundwater allocation plans adopted by GSAs and water rights.This Article analyzes the relationship between SGMA and water rights under the common law. It identifies a path for GSAs to allocate groundwater and limit pumping in a manner best situated to sustain judicial scrutiny. We examine how the common law defines water right priorities for groundwater pumping allocations, as well as areas where the common law provides flexibility. This flexibility allows for creativity in arriving at allocations that fit stakeholders’ goals for both sustainable and smart water management. We seek to help GSAs reduce the risk of litigation and increase the likelihood their Groundwater Sustainability Plan (GSP) will survive litigation, without judicial modification. There are considerable measures GSAs can take to manage their litigation risk and enhance the durability of their GSPs, including making groundwater allocations in their GSPs consistent with the principles of water rights and seeking consensus among affected stakeholders. We also seek to provide a framework for courts to work out the appropriate relationship between SGMA and the common law of water rights when litigation occurs.
The Price of Sovereignty in the Era of Climate Change: The Role of Climate Finance in Guiding Adaptation Choices for Small Island Developing States
Climate change poses an existential threat to small island developing states that are at risk of losing their territories to sea-level rise and severe weather events. These nations must make decisions about how to preserve their sovereignty and create a meaningful future in the face of imminent territorial loss. Territorial loss creates a risk of displacement and statelessness, and the world has yet to confront the possibility of a permanently deterritorialized island nation. Against this backdrop, small island developing states must choose, design, and finance adaptation options to preserve their status as sovereigns and enable them to design a self-determined future, be it on their existing islands, artificial islands, or a resettlement elsewhere. Adaptation measures, however, are beyond the financial means of most small island communities.This Article explores adaptation options for small island developing states and the financial mechanisms available to support these choices. It describes the potential adaptation responses these states can pursue, including territorial solutions, such as building up existing islands and designing artificial islands, and nonterritorial options, such as proactive resettlement elsewhere. Global adaptation finance exists for short-term measures to preserve habitability, but longterm adaptation measures—like elevating existing islands, building artificial ones, or planned resettlement—are critically underfunded. This Article therefore exposes the inadequacy of existing climate finance sources to meet the longterm adaptation needs of small island nations. In light of this gap, it suggests these nations pursue multiple paths for survival by continuing to invest in short-term projects to preserve island habitability, take steps to attract financing for longterm adaptation measures, and advocate to secure political and legal rights through existing or new international agreements.
The Operationalization of the Principle of Free, Prior and Informed Consent: A Duty to Obtain Consent or Simply a Duty to Consult?
The principle of free, prior and informed consent (FPIC) was introduced as a way of safeguarding indigenous peoples’ right to self-determination and their right to freely determine their own economic, social and cultural development. This Article explores how FPIC has been operationalized in the context of natural resource extraction on indigenous land by taking a closer look at the operationalization of this principle in Colombia. The Article also aims to showcase the difference between FPIC and the duty to consult, and explains to what extent the former one is more preferable to the latter one.
Establishing Floating Offshore Wind Development in Oregon: Lessons From East Coast State Policy Tools Promoting Offshore Wind
In the past several years, offshore wind developments have increased across Europe, Asia, and the Eastern United States. This Comment analyzes the policy tools that East Coast states use to promote offshore wind development and to help overcome the economic, environmental, and land use barriers to offshore wind. The Comment analyzes policy tools, including (1) establishing an aggressive state Renewable Portfolio Standard (RPS), (2) passing procurement mandates for certain level of offshore wind development, and (3) funding investment in infrastructure, education, and research and development. Lastly, the Comment analyzes Oregon’s energy sector and applies the lessons from the East Coast state policy tools to make recommendations for policy actions that Oregon could adopt to promote offshore wind development.
In the height of a seven-year drought in California, The Agua Caliente Band of Cahuilla Indians (the Tribe) sued the Coachella Valley Water District and Desert Water Agency (Together as “Water Districts”) to secure their right to groundwater stored in the Coachella Valley Aquifer (Aquifer). The Aquifer, like most groundwater resources in California, was severely taxed during the drought. This forced California to respond by passing the Sustainable Groundwater Management Act (SGMA), the first groundwater regulation in the State’s history. SGMA requires “sustainable groundwater management” for all basins by creating Groundwater Sustainability Plans (GSPs). These plans are, in effect, stakeholder negotiations on basin management. Basin adjudications will likely occur if these negotiations break down. In Agua Caliente Band of Cahuilla Indians v. Coachella Water District, the Ninth Circuit became the first federal court to expand the definition of Winters rights to include groundwater. Winters rights are federally reserved rights to water to help sustain the primary purpose of a federal reservation. The expanded definition of Winters rights increases the bargaining power of tribes, as stakeholders, in the GSPs and any possible basin adjudication. This decision greatly impacts California and other states in the Ninth Circuit. It would also have major implications for Arizona if Arizona had not been managing groundwater in much of the state since the 1980s. Additionally, Arizona recognized a tribal right to groundwater in Gila III in 1999. Agua Caliente affects the future of water supplies by broadening the definition of federally reserved rights to include tribes’ right to groundwater. This Comment recommends that private and public stakeholders across the West follow Arizona’s lead with respect to water planning in the Ninth Circuit’s jurisdiction by using settlement agreements with tribes to secure contested supplies of groundwater.