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December 08, 2023 Feature

Judges and Environmental Cases

By Alf W. Brandt

When Utah Judge Mary Kate Appleby was assigned the Utah Lake–Jordan River water rights adjudication in 2007, she knew little about water law. She started her legal career as a public defender, worked in a private firm, and served in the Utah Office of Professional Conduct. In 2007, Utah had few water cases, and the Jordan River adjudication, originally filed in 1944, had languished for decades. The Judicial Council did not offer training on water rights adjudication. When the case became active, she searched the internet for resources on water law and found the Dividing the Waters program at The National Judicial College (NJC). She attended the program’s 2012 conference at the UC Davis King School of Law. Two years later, Governor Gary Herbert elevated her to the Court of Appeals, and she left behind the Jordan River case for another trial judge to learn water law.

Water conflicts, however, still intrigued Appleby. When I (then Dividing the Waters executive director) visited Utah in 2016 to talk about state government support for the program, Judge Appleby organized a meeting with four other judges from across Utah who had adjudicated water cases. (One judge drove five hours for the meeting.) That discussion led to Appleby organizing a water law training for Utah judges, which drew on the expertise of Dividing the Waters Convener-Judge Eric Wildman, the Idaho/Snake River water judge. Appleby’s assignment to a water case without any water experience repeats itself regularly, particularly in the arid West.

Federal and state courts have adjudicated conflicts related to water and the environment since early in the nation’s history. Early cases addressed those who had private rights to environmental resources. Since Congress and state legislatures passed environmental laws in the 1970s, cases have addressed implementation of those laws. In recent decades, however, as the climate has changed and some environmental problems have become dire, cases and controversies on environmental justice have increased. Some legislatures and governors have responded, but with mixed success. They work to resolve environmental conflicts with “stakeholders” who support them, including some stakeholders with substantial private and financial interests in environmental resources. The other branches’ ability to resolve environmental problems and conflicts depends on the politics of the issue.

Achieving environmental justice, however, may require judges to interpret what the legislative branch has passed and the executive branch has decided and to resolve environmental conflicts for all those who may be affected. Environmental problems often present complex scientific issues where the science itself may be in dispute. The NJC has and will support judges assigned environmental cases with education and information resources that prepare judges to address the environment’s complex scientific and legal issues. The NJC’s faculty, judges who have adjudicated complex environmental cases, will be there to prepare you to engage the parties, the governments, and the communities to resolve their environmental conflicts.

The Environment in the Courthouse

More than 50 years ago, in Sierra Club v. Morton, the U.S. Supreme Court set the terms for standing in environmental cases under the Administrative Procedures Act, which has enabled the environment to come through the courthouse door. The Court required plaintiffs to suffer injury, economic or otherwise. Its dissenters, however, offered alternative visions for how the environment could get in the door. Most interestingly, Justice Douglas advocated “the conferral of standing upon environmental objects to sue for their own preservation.” Justice Harry Blackmun, with whom Justices Douglas and William Brennan agreed, suggested allowing an organization “of pertinent, bona fide, and well-recognized attributes and purposes in the area of environment to litigate environmental issues.” The Sierra Club v. Morton decision set the terms for one facet of environmental disputes, but Congress provided standing under other terms, including private rights of action for violations of environmental statutes. Judges across the nation therefore adjudicate both private and public environmental interests.

Beginning with European colonization of North America and followed by formation of the United States of America, federal, state, and local governments have played critical roles managing the development of the environment. In the early years, the colonies sent tobacco, fish, and furs back to their home countries. The environment provided metals, lumber, and other raw materials for development on both sides of the Atlantic. As the United States expanded west, extraction of raw materials and expansion of agriculture allowed the nation to flourish. Open lands, available for free under the Homestead Act, welcomed immigrants to develop agriculture and communities across the continent. Mines provided metal for steel that led to ribbons of rail across the nation. Rivers and lakes offered pathways for commerce, water for irrigation, and places to dispose of waste. The extraction and exploitation of natural resources and the environment led to great wealth . . . and environmental destruction.

The environmental degradation drew public attention, and a government response, after the Cuyahoga River caught fire in Cleveland, Ohio, in 1969. In the five years that followed, President Richard Nixon created the U.S. Environmental Protection Agency. Congress passed the Clean Air Act, the National Environmental Policy Act, the Clean Water Act, and the Endangered Species Act. States also adopted their own environmental laws. Litigation to interpret and enforce environmental laws expanded in the decades that followed, requiring federal and state judges to adjudicate environmental conflicts. Most recently, in Sackett v. U.S. EPA, for example, the Supreme Court interpreted and narrowed the meaning of “Waters of the United States,” after decades of dispute—and Supreme Court decisions—about that term.

Climate change has made environmental challenges more acute and expanded the docket for environmental cases in federal and state courts. In California, for example, wildfires, severe drought, and sea-level rise have led to expanding litigation, in addition to long-standing conflicts over pollution and contamination of drinking water. This next generation of environmental litigation raises new issues of science—on causation, cross-resource (air, water, forest, wildlife) damages, and far-ranging impacts—in addition to longstanding science issues such as the origins of contamination.

Challenges for Judges Hearing Environmental Cases

Conflicts over the environment, especially its water resources, present some of the greatest, often unique, challenges for judges in adjudicating and resolving conflicts in the United States. The Supreme Court’s Sierra Club v. Morton decision went to the heart of the question about who can represent the environment. Judges will address that question throughout the adjudication of environmental cases, from start to finish. At the front end, do the parties adequately represent the public and private interests in the environment? At the back end, will the court’s decision and remedy do justice for the environment and all who are affected by that environment?

When judges are assigned to an environmental case, the path to “justice for all” may not be apparent. In an environmental case, defining “all” offers unique challenges to ensure all public and private interests in environmental litigation outcomes are redressed. At each step, the judge asks questions to make that determination:

  • Who filed? Plaintiffs may file a claim to assert their private interest or right without realizing certain effects on the larger environment or others who depend on that environment.
  • Standing? The breadth of the filed claim will affect whether plaintiffs have standing.
  • All in? In some environmental cases, the judge may need to adjudicate the sufficiency of service of process and those permitted or required to join the litigation. Do the parties adequately represent all the public and private interests in the environmental resource at issue? In state water rights adjudication cases, for example, the federal government waives its sovereign immunity, provided all those who claim water rights in the “river system or other source” are subject to the same adjudication. Whether or not the parties raise the issue, the judge may need to consider whether all the necessary parties are in the case.
  • Whos in charge? While private parties may file suit, state and federal agencies may have statutory or regulatory responsibility for much of the nation’s environmental resources. State and federal statutes define agency responsibility for state and federal lands and waters. Local governments may have responsibility, through land-use/zoning statutes, even for private lands. A judge may need to assess who has responsibility for and authority over the environmental problem and its resolution. Early in the case, the judge may require the parties to address joinder and identify all indispensable and necessary government agencies to be joined in the case to ensure an adequate remedy at the case’s conclusion.
  • Best science? Environmental cases have long required judges to examine and adjudicate scientific issues. Climate change has moved science to the center of environmental disputes/cases. Parties may offer a “battle of the experts,” but private consultants may not be able to provide the best available science. Government or academic scientists may have the necessary data and scientific analysis to resolve these scientific issues.
  • Craft a remedy? Once a judge or jury decides on the prevailing party in an environmental case, the judge may have the duty to craft a remedy to right the wrong or resolve the environmental problem. An enduring remedy may require the establishment of environmental monitoring and continued assessment by the parties, and possibly government agencies, to work toward a final resolution of the environmental issue.

National Judicial College Programs on the Environment

From its founding 60 years ago, the NJC has sought to “make the world a more just place” and advocated “justice for all.” Its training programs have addressed environmental topics for many years. In the last decade, the NJC has expanded its programs to assist judges in adjudicating environmental conflicts. Environmental conflicts also have drawn the attention of the Conference of Chief Justices. In 2018, the Conference called for more training programs on environmental law for judges across the nation. The NJC responded by expanding its programs on environmental law.

Dividing the Waters

In 2007, the Dividing the Waters (DTW) program joined the NJC. DTW started in 1992 as a Ford Foundation–funded project facilitated by the Arizona Supreme Court. Initially, it provided an opportunity for the relatively few state judges adjudicating large, often statewide, water rights cases in western states to share knowledge and experience. It convenes conferences in watersheds across the West where water conflicts or water rights adjudications come before judges. As water cases evolved to include water quality and fishery habitat issues, DTW evolved to serve the needs of new water judges, who were often adjudicating their first water conflict case. During COVID, the program expanded its online education to offer webinars on critical water issues and, with the NJC’s connections to judges nationwide, attracted a broader national audience.

In recent years, the western United States has experienced extreme drought. Many states have suffered their worst drought on record. Water conflicts and resulting adjudication have increased. The Colorado River, which provides water for farms and cities in seven western states, has seen its massive reservoirs shrink to the lowest levels since their dams were built. In December 2022, DTW convened a Colorado River conference in Santa Fe, New Mexico, where the seven states concluded a compact to share the river’s water a century before. Judges heard from the region’s jurists, hydrologists, biologists, and state and federal water officials about the interstate conflict. More judges than ever before participated in the conference.

Western Judicial Consortium on Water Law

In concert with the Santa Fe conference, the NJC convened state supreme court justices from across the West, including several chief justices, to discuss their needs for more training on water conflicts. The states share a common interest in water sciences—hydrology, biology, chemistry, and hydrogeology—and enjoy a common deference to their water rights laws from the federal government. Justice Rehnquist, in California v. United States, called it “the consistent thread of purposeful and continued deference to state water law by Congress.” While each state has its own laws on water, western states share a common history and a common water rights framework, the Appropriation Doctrine, often labeled the “first in time, first in right” system. The doctrine gives those who first established their water rights all the water they need before the next junior water rights holder gets water.

These common interests in science and law led to the creation of the Western Judicial Consortium on Water Law. Each participating state contributes to the NJC’s creation of an interstate program on the fundamentals of water law for judges who are novices in the subject matter. This new program concentrates on water science as well as the legal foundations for both federal and state western water management. Its programmatic contents include webinars; written materials, such as the Dividing the Waters’s bench book on Adjudicating Groundwater; and structured interactions with other water judges in a new conceptual format called a “colloquy.” The new program’s online courses will be available 24/7 online to judges in contributing state jurisdictions. Judges who wish to obtain a Judicial Education Certificate in Water Law will develop and convene a colloquy on a specific challenge a judge presiding at the adjudication of a water case may encounter—for example, service of process to all water users in a basin who may have an unquantified water right. With successful completion of the program, judges will be prepared to adjudicate the most complicated water cases.

Climate Science Program

In response to the Conference of Chief Justices’ call, NJC collaborated with the Environmental Law Institute (ELI) to establish a broader environmental law program that builds on ELI’s Climate Judiciary Project. In 2021, NJC invited the chief justices of every state to nominate a judge to participate in the new program, named Judicial Leaders in Climate Science. The identified judge is expected to return to their home state with knowledge, information, and resources obtained at NJC-ELI programs for dissemination to their colleagues. The identified judge is additionally expected to take a leadership role in improving the management of climate-related litigation.

Over two years, NJC and ELI offered conferences, webinars, and information resources to the first cohort of identified judges. These judges learned the foundations of climate science and its intersection with the law. NJC conferences also offered training on disputes in water, land, and coastal management. In late 2023, NJC and ELI will start a new round of programs for its second cohort of judges.

California and Groundwater Justice

In the arid West, disputes over water have appeared on judicial dockets since the 1800s. Mark Twain is alleged to have said, “whiskey’s for drinking, water’s for fighting.” Miners in the 1849 Gold Rush fought over the water where they panned for gold and developed the rule of “first in time, first in right.” Courts in the drier western states adopted that rule as the Appropriation Doctrine, starting with the California Supreme Court in 1855. Other western states adopted the Appropriation Doctrine in the decades that followed. Since then, the laws of surface water rights have generated countless lawsuits requiring judges to adjudicate water rights disputes.

In California, however, the biggest supply of water, in the Central Valley’s underground aquifers, has not seen widescale adjudications over its water rights. Unlike surface water, groundwater is governed by “correlative rights,” which only require all property owners share equally in the groundwater resource until it is exhausted. The state does not regulate its use as it regulates surface water. As the late UC Berkeley Professor Joseph L. Sax wrote:

People who have access to groundwater can just pump it. They need no one’s permission, and no one regulates their use. Water users like it this way; groundwater is a sort of ace-in-the-hole. When surface water supplies are restricted, they can pump groundwater as a substitute, and so it functions as one form of insulation against both drought and increasing regulation.

Central Valley groundwater irrigated early agriculture in California. By 1933, however, the groundwater was getting deeper, and the land was sinking. The California legislature, and then the federal government, designed and built the Central Valley Project to bring surface water from Northern California to the San Joaquin Valley to stop groundwater overdraft and land subsidence. As long as surface water was plentiful, there was little need for adjudication of groundwater rights, so cases were nonexistent.

Climate change and California’s extreme droughts changed the dynamic, but not the level of litigation. Farmers dug deeper wells and drained the Central Valley aquifers. Land again subsided. The subsidence destroyed surface water canals, reducing surface water deliveries even in wet years. In 2014, the legislature saw the map above, which shows how much groundwater had been taken in over a three-year period. It passed the Sustainable Groundwater Management Act (SGMA), which requires local agencies to develop plans to make groundwater pumping sustainable by 2040. Pumping, however, continued.

The year after SGMA, the legislature reformed the groundwater rights adjudication statute, in anticipation of more lawsuits. In the Central Valley, however, groundwater rights adjudication cases have been few, while the state has rejected six SGMA plans as insufficient to achieve sustainability.

In parallel with this growing groundwater overdraft, the California legislature recognized the injustice of Central Valley groundwater management. In the 20th century, as the Central Valley Project expanded agricultural irrigation, small farmworker communities near the farms developed and nearby cities did not provide water service. These small communities rely on groundwater, as they do not have access to clean Sierra Nevada surface water that the Central Valley Project delivers to farmers for their crops. Growing large-scale dairies and decades of farmers using fertilizers and pesticides led to groundwater contamination. As a result, most of the million Californians who do not have access to safe drinking water live in the Central Valley.

The most recent drought, which lasted until 2022, created another form of water injustice—complete loss of groundwater for drinking. In 2022, nearly 1,400 domestic/household wells went dry due to over-pumping by neighboring farmers, a 40 percent increase from 2021. After decades of suffering contaminated water in the farmworker community of Tooleville, its well went dry. The neighboring community of Exeter, which for years had resisted providing drinking water to its neighbor, finally allowed Tooleville to connect to its pipeline a mile away, after the state proposed an order to force consolidation between Exeter and Tooleville.

At some point in the future, judges may play a bigger role ensuring groundwater justice in California, for both water quality and supply. In the administrative SGMA processes, the groundwater sustainability agency directors generally represent the biggest pumpers. Small farmers and disadvantaged communities may attend public meetings, but they do not have a seat at the table developing the groundwater sustainability plans. In 2022, the legislature amended the adjudication statute to require judges to consider the needs of disadvantaged communities, like Tooleville, and small farmers in adjudicating groundwater rights. If the big pumpers become dissatisfied with the plan that the state imposes after the agency plan fails to meet legal requirements, they may file cases to adjudicate Central Valley groundwater rights. In addition, as the state spends billions to provide safe drinking water to communities suffering contamination, liability suits on water quality may emerge as well. At that point, it will be up to judges to ensure justice, without regard to who has the most power in the basin.

In 2022, then Chief Justice Tani Cantil-Sakauye convinced the legislature and the governor to appropriate $1.1 million (in continuing funding) to the Judicial Council to organize judicial training programs on water and climate. She noted that the state’s extreme drought had led to more water cases and, in light of climate change, state judges could anticipate an increase in the number of cases on water and the environment. When Cantil-Sakauye retired from the supreme court this year, she joined the NJC Board of Trustees.

Epilogue: Judge Kate Appleby and Judicial Water Programs

Judge Kate Appleby joined the conveners of Dividing the Waters in 2017, helping to convene its webinars and its conferences in Reno (2018), Stanford Law School (2019), and Santa Fe (2022). More Utah judges now participate in Dividing the Waters. More importantly, Judge Appleby convinced the Utah Judicial Council to create a program for volunteer water judges, who will receive training in water law and adjudicate water cases from across the state. The Council contributed $40,000 to the creation of the first NJC online water course on hydrology, which is being developed by Southern Utah University (SUU) under NJC guidance. Judge Appleby is facilitating the development of the online hydrology course and hopes to see another course on the principles of western water law in the near future. You may see her later this year in a short trailer film about the Western Judicial Consortium on Water Law, which is in development by NJC and SUU. Judge Appleby has transformed herself from a water law beginner to a water law expert in just a decade.

Alf W. Brandt

The National Judicial College

Alf W. Brandt has worked on water law issues in all three branches and all three levels of government for more than 30 years. He has worked with The National Judicial College (NJC) on its water law programs since 2011, while working in the California State Assembly, and served in leadership for the ABA Section of Environment, Energy, and Resources. He recently joined NJC on environmental and judicial independence programs.

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