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For environmental lawyers, it is not sufficient to master substantive environmental law and administrative procedure. They must also understand public policy analysis; the interaction of law, economics and science; the normative bases for environmental protection; and the political and bureaucratic dimensions of environmental law and policy. Environmental lawyers must be sensitive to the broad social, economic and political realities that underlie this area of the law.
Boalt Hall's California Center for Environmental Law & Policy (CCELP) provides students with the analytical skills, substantive knowledge and practical judgment needed to be effective lawyers in this evolving area. The curriculum is concerned not only with the basic legal elements—statutes, regulations and cases—but also with the broader structure of environmental law and policy. The program prepares students to navigate the existing regulatory system as well as to contribute to the ongoing process of reform.
Concurrent and Combined Degree Programs
Students may enroll in a concurrent degree program with another department or school on campus, such as the Haas School of Business; the Department of City and Regional Planning; the Goldman School of Public Policy; the Energy and Resources Group; or the Department of Environmental Science, Policy and Management.
Students may also enroll in a combined degree program with the John F. Kennedy School of Government at Harvard University or the Fletcher School of Law and Diplomacy at Tufts University. Students must apply separately to each program. A J.D. degree and a master's degree can be earned in approximately four years.
Boalt is unique among major American law schools in that it offers an interdisciplinary Ph.D. degree through the Jurisprudence and Social Policy (JSP) Program. Students with a strong interest in both environmental law and policy and a teaching career may consider applying to the JSP Program. In recent years, students have graduated with specializations in environmental history, natural resources law and law of the sea.
Internships
Internships during the academic year provide an opportunity to apply the knowledge and ideas learned in the classroom, gain practical experience in an environmental practice, and work with practicing environmental lawyers. The law school grants academic credit to students who participate in approved internships, most of which are with nonprofit environmental organizations and government agencies. A typical internship requires a commitment of two to three days each week for four to six units of credit.
Some of the more popular internships with nonprofit organizations include those with the:
- Earthjustice Legal Defense Fund
- Environmental Defense
- Natural Resources Defense Council
- The Nature Conservancy
Students also have held internships in organizations dealing with international environmental issues, such as the EPA's Office of General Counsel (International Activities Division).
Courses
The following courses are available for those interested in environmental law:
Administrative Law
This survey course will consider the creation and control of the modern administrative state. Topics will include the structure of administrative agencies and their place in a governing scheme of separated but overlapping powers, delegation of authority to agencies, types and requirements of agency decision-making, availability and scope of judicial review of agency action (and inaction), and other forms of agency oversight. A variety of policy areas will be considered, including (among others) homeland security, emergency management, the environment, food and drugs, and telecommunications.
Agriculture and Environment
Agriculture and the Environment is a seminar course exploring the interplay between agricultural practices and environmental impacts and examining the social and economic costs of current agricultural policies. The course will begin with an analysis of the historical and political narrative that influences agricultural policy decisions. This narrative will be juxtaposed against today’s reality of large, often heavily polluting, mega-farms that are largely immune from environmental regulation. The course will draw upon economic theory to consider the costs of these policies and will explore the politics leading up to their development.
The course will analyze special exceptions for agriculture in the environmental context, focusing on right-to-farm statutes that provide agricultural operations with immunity from nuisance lawsuits and statutory exemptions that shield them from federal environmental laws. The scope of these special protections will be explored in depth.
Animal Law
This course presents a survey of the historical and current status of this rapidly developing specialty. In brief, animal law encompasses all areas of the law in which the nature—legal, social, or biological—of nonhuman animals is an important factor. This is not an animal rights course, although certainly the question of what rights animals should or do have will be raised as a natural consequence of reading the casebook. Rather, it is an objective and logical specialization of a challenging area—one with a growing number of cases and laws, increasing public and practical interest, and significantly different historical, legal, and philosophical foundations than most other courses.
Biodiversity Policy
This course explores the goals of biodiversity conservation policy, tensions between those goals and other societal goals, the difficulty of identifying biological entities to target for conservation purposes, the range of public approaches to biodiversity conservation in the United States, and the role of private conservation efforts. The class also considers the roles of different levels and branches of government, experts both inside and outside of government, non-governmental organizations, the general public, and the market in biodiversity conservation. We will use case studies as well as more traditional readings to approach these issues.
California Environmental Issues
Instructor will moderate six 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. Possible 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, 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.) Class will meet for six sessions on alternate weeks during the semester.
Comparative Environmental Politics and Policy
This seminar explores environmental politics and policies through the lens of comparative and international politics. The first half of the seminar compares national responses to environmental issues and problems. Students examine political and legal institutions, modes of political participation, the structure of environmental policy, policy styles, and the dynamics of agenda setting in both developed and developing nations. The seminar's second half addresses the international and regional dimensions of environmental politics and policies, with particular focus on trade and the environment, environmental regulation and international competitiveness, regional environmental cooperation (EU, NAFTA, APEC), the formation and implementation of global environmental treaties, the role of international institutions, and the patterns of conflict and cooperation between developed and developing countries.
Disasters and the Law: The Legal Implications of Hurricane Katrina
For this course, background readings will be discussed in the early parts of the semester, but the primary focus will be on student research papers. The tentative plan is that the papers will be the basis of a report surveying post-Katrina legal issues, which will be disseminated online or otherwise. The issues cut across many fields of law, including disaster planning and prevention, torts/compensation, environmental, land-use planning, social justice, tax, and insurance/reinsurance.
Energy Regulation and the Environment
Energy production and use drives the world's economies and offers hope for growth and prosperity. Yet the extraction and use of fuels and development of energy facilities are among the greatest threats to the global environment. This course introduces students to the legal, economic, and structural issues that both shape our energy practices and provide opportunities to overcome these critical problems. The course focuses primarily on the regulation and design of electricity systems and markets because so many energy choices—the use of oil, natural gas, coal, nuclear, the green alternatives such as solar, wind, and energy conservation or "demand-side management"—relate to the way we generate or deliver electricity, or avoid the need to do so. Next to the use of petroleum for transportation, electric generation is the greatest contributor to air pollution and the greatest source of greenhouse gas emissions. In addition, as urban and suburban development spread across the land, the maintenance and expansion of the electric transmission grid creates increasingly challenging land-use problems. The course examines both the traditional monopoly model of regulation and evolving competitive alternatives. The course exposes students to energy resource planning, pollution management, rate design, green markets, energy efficiency, demand-side management, renewable energy portfolios, climate change, and carbon management. The course provides an introduction to administrative law and to practice issues in the field.
Environmental Compliance and Enforcement
This seminar focuses on the administrative, civil and criminal enforcement mechanisms available under environmental statutes. Students begin by reading widely in political science and the law to understand the effectiveness and secondary consequences of various enforcement and compliance strategies. Then, working in teams, students study actual enforcement problems, such as criminal enforcement against an owner of a hazardous waste site or administrative action against municipal polluters. Students prepare a seminar paper on their field research.
Environmental Law and Development Workshop
The intersection of environmental and land use law, on one hand, and the real world of real estate development, on the other, is filled with complexities and trade offs. The answers to many legal questions raised by some development projects are not easily discerned from the law. Furthermore, large-scale development projects almost always have measurable negative impacts on the environment, while at the same time often improving the lives of some people. As a result, the social and economic utility of projects is often difficult to determine. Lawyers inevitably find themselves in the middle of these conflicts. This year’s Workshop will focus on an important publicly sponsored or private project. The class will look at the project from every angle. Each week the class will be visited by a person involved in or knowledgeable about some facet of the project. The students will interview the guest. In a separate forty-minute session each week, the class will discuss the information gleaned from the interviews and from outside research. The final project will consist of the preparation of a single “White Paper” on the project, which will be made available to the media and to policymakers.
Environmental Law and Policy
This introductory course is designed to explore fundamental legal and policy issues in environmental law. By focusing on environmental torts and a limited number of federal statutes—principally the Clean Air Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation and Liability Act; the National Environmental Policy Act; and the Endangered Species Act—the course exposes students to the principal approaches to environmental law: litigation, command and control regulation, market incentives, and providing information.
Environmental Law Workshop
This seminar will feature a series of speakers doing cutting-edge work in environmental law. The speakers will be drawn from various disciplines on the Berkeley campus, as well as including leading legal scholars nationally. Students will be expected to read each paper in advance and write a short (1-2 pages) response memo before each session, as well as a 5 page response memo about one of the papers. Grades will be based on the response memos and on class participation.
Environmental Law Writing Seminar
In this seminar, students write a 20-page case note about an important case or other development in environmental law that occurred during the previous year. The pieces are then evaluated by the Ecology Law Quarterly for publication in the Annual Review of Environmental and Natural Resource Law, which is published in the spring semester. Thus, students not only work on their writing and research skills, but they also have the opportunity to publish an article in their second year.
Environmental Litigation
This course provides students with a sophisticated understanding of public and private cost recovery litigation involving soil and groundwater contamination. The course covers critical issues in the field, delves into the necessary practicalities and covers the "great" cases so that students can speak the language of environmental litigation. The class surveys the latest developments in the application of traditional tort theory in the environmental context. Students become familiar with the evolving "fear of cancer" tort, as well as those portions of the Resource Conservation and Recovery Act that are important to cost recovery actions. This is followed by a segment on the interplay of administrative law and environmental litigation. The class also covers those facets of insurance law critical to litigating cost recovery actions, and includes an analysis of the potential liability of financial institutions, corporate officers, shareholders and parent corporations.
Environmental Law Practicum
In this course, students will work in teams of two to three with government agencies or non-profit organizations to prepare one or more research memoranda under the supervision of counsel for the particular agency or non-profit organization and under the direction of the Lecturer. The research will involve subjects of importance involving complex questions of law and policy. Students will meet one or more times with counsel for the agency or organization for which they are doing the research and may be asked to present the results of their work to a Board or Commission of that agency or organization. All of the students will meet at the beginning of the semester for two consecutive weeks to receive assignments and instruction in preparing memoranda for consumption by clients. Thereafter, each student team will meet with the Lecturer periodically for review of the work in preparation. At the end of the semester, all of the students will meet for two consecutive weeks to present the results of their work to the class and the Lecturer. Grades will be based on the research memoranda produced.
Environmental Remedies
This course provides students with a sophisticated understanding of the range of remedies available to plaintiffs in public and private cost recovery litigation. In contrast to the course Environmental Litigation, which surveys substantive legal theories of recovery, this class focuses on the available civil and administrative remedies in environmental litigation. Upon completion of this course, students will have an in-depth understanding of the standards for, uses of and practicalities involved in monetary damages, injunctive relief, civil penalties and administrative remedies. In addition, students study remedies in the environmental context from the defendant's point of view, paying attention to avenues of attack and ways to favorably affect the outcome of litigation.
International Environmental Law
This course addresses the law's role in the management of international environmental problems. It begins with a brief introduction to public international law as it relates to the environment and a discussion of what international environmental law means in contemporary society. The course includes consideration of international environmental treaties; the role of the International Court of Justice in identifying and establishing international environmental law; international regulation of private conduct affecting the environment; trade and the environment; the role of international financial institutions; human rights and the environment; and armed conflict and the environment. Students examine procedural topics, such as access to information, environmental impact assessment and public participation, as well as substantive topics, such as the regulation of human conduct and the protection of particular environmental resources.
International Tribunals and the Environment
War, climate change, commercial fishing, and technological development all have impacts on the environment on a global scale. The international system has evolved a multiplicity of courts, tribunals, commissions, and other types of dispute-settlement bodies, but are they well-suited to environmental disputes? The International Court of Justice, the Permanent Court of Arbitration, the World Trade Organization, and NAFTA panels, as well as specialized bodies like the UN Compensation Commission, have addressed disputes relating to the environment. This course takes a practical look at how they accept, review, and decide disputes, looking at recent cases. Topics that may be considered include: transparency of international courts and tribunals, excessive proliferation of courts, and the ethics and independence of international courts and tribunals.
Land-Use Planning and Control
This course explores the role of government in planning and controlling the use of land. Topics include comprehensive land-use plans, zoning, subdivision exactions, aesthetic regulation, "smart growth," environmental review under CEQA, exclusionary and inclusionary zoning, Federal Fair Housing Act issues, and constitutional issues raised by land-use regulation, including Takings Clause issues.
Lawyering for Environmental Justice
This seminar introduces the topic of environmental justice and focuses on a few specific problems. The course begins with an overview of the disproportionate burdens of environmental hazards borne by poor people, particularly people of color. The seminar then considers the legal and political tools available to represent affected individuals and communities, and the strategic issues confronting groups organizing for and advocating change. Throughout, the course critically examines the role of lawyers and methods of lawyering in the environmental justice context.
Local Government Law
This course explores the structure and powers of local government, limitations on authority, relationships to other levels of government, and the emerging structure of governance at the regional level. Topics stressed are the constitutional relationship between state and local governments, the scope of police power, land-use planning and regulation, and municipal taxing authority.
Metropolitan Planning Seminar
Overview: This seminar course, jointly offered by the School of Law and the Department of City and Regional Planning, will consider the legal, institutional, and practical issues surrounding past, current, and future metropolitan planning initiatives, with particular emphasis on California. Sessions will include a mixture of faculty and student presentations and guest lectures.
Topics under consideration include:
- Arguments for and against metropolitan planning
- History of metropolitan and regional planning initiatives in California
- Environmental Initiatives: BCDC, the Coastal Commission, TRPA
- Bay Vision 2020
- Initiatives in other states, for instance, Vermont, Maryland, Florida, Washington, New Jersey, and the “Oregon/Portland case”
- Regional and metropolitan transportation planning
- Regional and metropolitan environmental, open space, and habitat planning
- Regional approaches to fair-share housing
- Regional tax-base sharing and other fiscal approaches
- Current initiatives such as San Francisco Bay Area Collaborative Planning and San Diego experiments
Ocean and Coastal Law and Policy
This seminar integrates the study of both the international law of the sea and specific U.S. legal regimes governing the oceans and coastal zones. The course examines ocean law from a historical perspective and also provides a survey and analysis of ocean-resource issues both in contemporary international relations and in U.S. constitutional law and public policy. Specific topics to be considered include the modern global movement for extension of the territorial seas and economic zones; U.S. coastal resources conflicts and their management; offshore mineral exploitation; federal-state relations since World War II; and the evolution of national agencies and international agreements that govern the management of marine fishery resources.
Ocean Law in the Nuclear Age
This course will be organized to prepare students for informed participation in an international conference February 10-11 (Friday and Saturday), 9AM- 5PM both days, on the subject of the oceans in the nuclear age. On those two days, attendance at all sessions is required of the students. The conference will feature lectures and panels involving jurists and American and foreign scholars from law, political science, and the physical sciences for interdisciplinary discussion of key topics in the subject field. Among the topics to be considered will be nuclear transport, seabed pollution and dumping, the legacy of nuclear testing in the Pacific, security issues, and risk management and ocean law. There will be one preparatory session with both professors, to discuss an assignment of general background readings, and a follow-up session to discuss the conference presentations. A short paper on one of the conference themes, due at the end of the semester, is required.
Public Lands and Natural Resources Management
"Public land" is a term of art referring to lands owned and managed by the federal government, including the National Forests, National Wildlife Refuges, National Parks, and Bureau of Land Management lands. Other natural resources, even if they are privately owned, often have quasi-public status. This course covers the legal aspects of management of federal lands, wildlife resources, and wetlands in the United States, including the history of public land and natural resources law, the scope of federal and state authority over public lands and natural resources, and the allocation of public land and other natural resources among competing uses. We will touch on the management of water resources, but will not get into that topic in depth.
RCRA and Common Law Claims
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.
Takings Clause Seminar
This seminar deals with the takings clause of the U.S. Constitution, which provides that "private property [shall not] be taken for public use, without payment of just compensation." It considers the standards for a compensable "taking," focusing on land-use regulation, environmental laws or other types of regulation that are frequently challenged as takings. The course also addresses various commentators' theories as to how a court should decide that a compensable taking has occurred.
Water Resources Law
The course covers Western water law, with special attention to California. In addition to the standard doctrines, the course deals with public rights in water, the special rights of Native Americans, transferability of water rights, state and federal programs to resolve water rights claims, and the water needs of public lands, such as instream flow maintenance.
Wildlife Law & Land Use
This short course will concentrate on the effects of modern wildlife law on land use management, considering the effects of wildlife protection on both public and private lands. Among the statutes that will be evaluated are the Endangered Species Act, the Migratory Bird Treaty Act, the Wild Horses and Burros Act, and the wildlife provisions of the major public land management statutes, especially the National Wildlife Refuge Administration Act. Other wildlife doctrines which will be discussed include the rule of capture, state ownership, the public trust, and when wildlife protection may result in a compensable taking of private property.
Workshop on Development and the Environment
The San Joaquin Delta and the land to the north and east of it is a rich ecosystem for water fowl and marine species. The area is also home to many agricultural uses. At the same time, it is under intense pressure from housing and commercial developers. The Delta and the rivers that feed it are an important source of fresh water for the Bay Area and Southern California.
Similar to New Orleans, much of the land in the Delta and the surrounding areas requires an elaborate system of levees and dams to prevent flooding. The problem, though, is that the levee system is broken. Breaches are common and when they do occur, brackish water devastates farms, private property and ecosystems; even our state capitol is threatened. Supplies of fresh water are also compromised when the system fails.
Even though the cost to rebuild and reinforce the levee system will be significant, in a rare show of bipartisanship California’s Governor, Senators and Representatives are uniformly committed to maintaining and reinforcing the levee system. Most, but not all, also support the construction of another dam at a time when scientists are questioning the wisdom of dams in general.
Other stakeholders argue that (i) reinforcing the levee system is not a long term solution and is doomed to failure anyway, (ii) parts of the Delta should be restored for the benefit of marine ecosystems and (iii) government should not permit development in flood plains in any event.
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