Berkeley Law plays a pivotal and growing role in California’s environmental leadership
By Rekha Radhakrishnan
For decades, America—and often the world—has looked to California’s visionary leadership on environmental policy. Recently, jarring projections about the rate and impacts of global warming have turbo-charged the urgency driving that vision.
With recent governor Jerry Brown setting bold climate benchmarks, current governor Gavin Newsom fueling programs to meet them, and climate change becoming a dire worldwide concern, the state once again finds itself on center stage. Meanwhile, Berkeley Law once again finds itself immersed in far-reaching efforts to help California generate meaningful protections for the planet.
Ranked third in the nation by U.S. News & World Report, the school’s environmental law program has a track record of groundbreaking research and productive projects. Now, it is ramping up an already formidable set of climate initiatives—adding renowned experts, expanding vital resources, and forging promising partnerships.
“California is a laboratory,” says Jordan Diamond ’08, executive director of Berkeley Law’s Center for Law, Energy & the Environment (CLEE). “We have a chance to test new policies and approaches here, see if they work, what they can achieve, and what needs to be tweaked—and then provide a model for other jurisdictions. We’re positioned perfectly to help accelerate the climate action we so desperately need.”
Much of that policy work focuses on California, largely because the state influences other states and countries. CLEE and the school’s Environmental Law Clinic (ELC) are well-connected, pivotal players in California’s push to enact meaningful climate reform.
That perch wasn’t reached overnight, but through a growing, shared vision between students and faculty.
Filling a void
Early in his tenure at Berkeley Law, Professor and CLEE Faculty Director Dan Farber recognized a glaring absence. “We needed a coordinating organization that could tie together students’ burgeoning interest in environmental issues with the school’s rich academic history,” he says.
Standout faculty members like Joseph Sax, dubbed the “father of environmental law,” were producing seminal work in the field. But Farber knew law students “needed an opportunity to work on these issues in earnest.” And the faculty needed a better avenue for reaching policymakers regarding those issues.
After consultations with students, faculty, and alumni, the environmental law center became a reality in 2005. It has since worked to translate non-partisan research into real-world solutions, providing a vector for transforming the intellectual capital on campus into pragmatic policy change.
Ten years later, ELC was launched. Steered by Director Claudia Polsky ’96, the clinic trains the next generation of climate defenders by enabling students to work on high-impact projects.
Through the center’s expanding work, the clinic’s robust docket, and a wide range of faculty research, there is a clear sense of urgency uniting Berkeley Law’s ambitious climate efforts.
“Many of us are drawn to this work because we care about the earth’s resources and we want to solve problems,” says Professor Holly Doremus, a leading scholar in the field. “The best environmental legal work helps shine a light on unrecognized aspects of a problem.”
Because of its reputation, capacity, and impartiality, CLEE provides unique linkage between and among local, state, and federal government; the private sector; academia; non-governmental organizations; and others in the climate field.
The center’s Climate Change & Business Research Initiative engages business, nonprofit, and government leaders to achieve economic and environmental benefits from state climate programs. This collaborative effort between Berkeley Law and UCLA Law’s Emmett Institute, led by CLEE Climate Program Director Ethan Elkind, has produced 17 reports and hosted numerous public events spanning seven economic sectors.
Those reports have tackled expanding solar energy, boosting the charging infrastructure for electric cars, and tapping the energy efficiency potential in existing commercial buildings, among other topics.
The Climate Program is helping California reach carbon neutrality by 2045, a target set by former governor Brown. That goal spawned a series of CLEE-led gatherings with business leaders, including real estate developers, automakers, and renewable-energy developers on how to efficiently scale up technology.
Elkind is confident in developing solutions for complex problems “because we’ve seen what’s possible.”
CLEE has helped produce such solutions for years. In 2011, for example, the center convened representatives from the energy commission, manufacturers, and utility representatives to discuss energy storage technologies. The goal: help California take advantage of surplus solar energy by capturing sunshine-heavy, low-electricity usage months for times when the electric grid is strained. The gathering led to a report that was ultimately critical in passing America’s first energy storage mandate.
Today, CLEE’s new climate initiatives and high-profile leaders reflect how the center has become a magnet for top talent and a key policy partner.
Ken Alex, who orchestrated many of California’s signature climate policies as a senior adviser to Governor Brown, is joining CLEE to accelerate deployment of the most promising climate solutions. Former California Insurance Commissioner Dave Jones is leading new work on the risk climate change poses to the financial sector. And the center is developing an initiative to help connect climate work between California and China.
The common thread between these efforts: impact.
“What the incredible faculty and staff at CLEE do doesn’t sit on a bookshelf,” says CLEE Advisory Board Chair Lenard Weiss ’62. “They work with legislators, policymakers, and other people who shape the world. It’s thrilling to be a part of something so hands-on.”
ELC’s recent addition of supervising attorney Roger Lin has also led to expanded climate capacity in the clinic and more help for disadvantaged Californians. Some 170 San Joaquin Valley communities lack access to affordable renewable energy, even as California moves toward full reliance on renewables. Due to decades of disinvestment, basics like home heating in the winter are possible only with wood fire or propane camping stoves.
In concert with community organizations, the clinic works with residents in these areas to address decades of infrastructural neglect. It achieved a major victory in December, pushing the California Public Utilities Commission (CPUC) to institute pilot projects in 11 marginalized communities—$56 million in investment to ensure access to affordable renewable energy.
ELC is also deploying legal strategies to hasten the demise of fossil fuel extraction and use. The clinic intends to sue the U.S. Environmental Protection Agency over antiquated regulations governing offshore oil spill response. Polsky says these regulations “create grave risks to human and ecological health as the administration reopens 90 percent of the U.S. coast to oil drilling.”
2015 marked a dramatic turning point in the fight against climate change, with the negotiation of the Paris Agreement to reduce greenhouse gas emissions. While the watershed moment created ecstatic headlines around the world, CLEE stayed focused on its mission: providing expert guidance to help implement savvy policies.
Arriving at the U.S. Ambassador to France’s home in Paris for a Berkeley-sponsored event at the 2015 UN Climate Conference, where a coalition of subnational signatories committed to keep global temperature increase below 2 degrees, Elkind sensed an opportune moment. CLEE had provided implementation assistance for the agreement, which originated between California and the German state Baden-Württemberg and set a temperature threshold that scientists warned was paramount to avoid catastrophic conditions.
“In California, you have a front-row seat to ground zero for climate policy,” Elkind says. “World leaders were gravitating towards the state’s environmental leadership and we’re truly a global pioneer and innovator in climate.”
Elkind sees the Bay Area “at the nexus of many influential corridors of power,” including key agencies like CPUC, foundations like Climate Works, NGOs like the Sierra Club, and venture capital firms that fund Silicon Valley startups. As a neutral third party, CLEE regularly brings these groups together for vital policy dialogues.
Beyond working directly on climate change law and policy, Berkeley Law’s environmental team also strengthens governance of critical resources affected by change we are already experiencing. Water and the lack of it is a prime example, one at the center of California’s story since the late 19th century.
Periods of historic drought punctuated by downpours leading to flooding and mudslides have put many cities and towns in a precarious position. Managing that risk is a complex legal and policy framework that spans various areas—and is becoming even more difficult amid rising temperatures and altered storm patterns that have already caused shortages and necessitated curtailments.
We can’t create new water, so it comes down to better managing existing resources—a tricky endeavor. “Water doesn’t obey the boundaries of statute and regulation,” says Michael Kiparsky, director of CLEE’s Wheeler Water Institute.
Among California’s many water-related issues, groundwater (the main water source for state agriculture) may top the list—especially as it has become scarcer over the past decade with intensifying drought cycles. How data gets collected, prepared, and disseminated is crucial to successful groundwater management, and moving from a relatively ungoverned system—“you can’t manage what you don’t measure,” Kiparsky notes—to the first statewide sustainable system brings new challenges.
The Wheeler Institute partnered with California’s Water Resources Department to craft recommendations for implementing the 2016 Open and Transparent Water Data Act, which mandates an integrated water and environmental data system across state and federal agencies. Proposals in the institute’s final report were adopted as part of the law.
While the Wheeler Institute focuses on clean water in California, the Law of the Sea Institute and CLEE’s Ocean Program examine domestic and international ocean law and policy. In 2017, LOSI Co-directors Diamond and Doremus convened international experts in Sweden to examine the intersection of oceans and climate change, and last year they convened thought leaders in New York to assess ocean management as a commons.
“We manage the ocean by industry and resource, which doesn’t make sense,” Diamond says. “To protect a full marine ecosystem, we need to transition to a comprehensive approach that considers all sectors and uses.”
The recent spate of California’s deadly wildfires shows how climate change is affecting land use. Among other things, the increase in high-risk areas reduces living space in a state with daunting housing shortages.
As a beacon for immigrants, dreamers, and believers in tech destiny, California’s population has swollen to nearly 40 million people. The state has America’s highest poverty rate and nearly a quarter of its homeless population.
Professor Eric Biber, who coordinates Berkeley Law’s environmental and energy law curriculum, knows California needs vibrant, compact, mass transit-friendly cities to meet the demand for housing while reducing car emissions. But what has prevented sustainable development from taking hold?
“The policy debates about how we deal with housing costs and production in sustainable and equitable ways weren’t engaging with the data needed to make informed decisions,” Biber says.
That disconnect is one factor that inspired Biber, Senior Research Fellow Moira O’Neill, and staff researcher Giulia Gualco-Nelson ’18 to construct a multi-year interdisciplinary study to explore the land use entitlement process for residential and mixed-use projects in a cross-section of California cities with different socio-economic statuses and political attitudes toward development. Working with Berkeley’s Institute of Urban and Regional Development researchers and a team of students, Biber and O’Neill hope the study will yield recommendations that could ease the path for sustainable affordable housing in California.
“Most land-use regulation housing cost projects are run by economists or planners, and don’t explore the full legal context for how the process works,” Biber says. “Having lawyers and law students work on this is very beneficial.”
By focusing on local political dynamics and incentives to dismantle bureaucratic barriers—an approach embraced by many policymakers—Biber sees a way forward to increasing sustainable and affordable housing.
Student training ground
Berkeley Law students are also leading innovative efforts that cut across traditional boundaries to spur action. Beyond their work at CLEE and environmental-focused student projects, the clinic is a welcome new outlet for hands-on climate work that is establishing its presence in communities that bear the burden of environmental harm from an economy dependent on fossil fuels.
“We want students to think of the role of attorney as problem-solver,” Polsky says. “Litigation is one lawyering tool, but so is making agency rules and strategizing around legislation. By design, we’re a multi-tool clinic.”
ELC’s case against the EPA, which focuses on the human health harms from the use of toxic chemicals in spill-response operations, provides a bridge between the clinic’s climate justice work and its broader docket around environmental health protection.
Polsky’s early-career work convinced her that future lawyers could fuel such efforts. “I’d go to meetings about chemical regulatory problems—oil spill disperants, pesticides, or chemicals used in nail salons—and all the voices advocating for change were doctors, toxicologists, and community activists,” she recalls. “All the attorneys represented the industries. We needed so much more advocacy lawyering capacity around environmental health issues, and we still need new attorneys in this space.”
ELC enrolls about 15 students each semester, and Polsky sees their diversity of personal backgrounds and skills as a major benefit. Students can engage in every aspect of new projects, from working with community-based organizations to building a strong administrative record. The clinic also accepts undergraduate auditors from backgrounds underrepresented in environmental law practice as it strives to diversify the profession.
Though the clinic is less than four years old, its work has already been featured in media outlets from The New York Times and Washington Post to CBS-TV and Univision, and its graduates have assumed roles at the EPA and firms that specialize in land use, renewable energy, and environmental law. While optimism characterizes her students’ spirit, Polsky says, “It’s their energy and sense of public mission that animate hope for the environmental movement.”
In 2019, the U.S. is contending with climate change in highly visible national policy debates like the Green New Deal and, locally in California, through the specter of disasters such as the recent major wildfires. Though the challenges are complex, Diamond sees evolving public perception creating reason for optimism.
“It’s heartening to see the growing awareness of the importance and relevance of what were once viewed as niche environmental issues,” she says. “They’re now being accepted as urgent issues of life. It’s about a sustainable future for the planet, and we all need to be invested in that.”
As the law school is, and will continue to be.
“Berkeley Law has been a leader in environmental law and policy for many years,” says F. Noel Perry, founder of the environmental nonprofit Next 10. “It’s why we’ve worked with them to analyze climate change issues directly impacting our state, the nation, and the world. Their leadership on and off campus provides an invaluable contribution, at a critical time.”
Andrew Cohen contributed to this story.