Reprise of Fireside Chat Yosemite Environmental Law Conference October 24, 2015

• Publication year: 2016
• Author: by E. Clement (Clem) Shute, Jr.

Reprise of Fireside Chat Yosemite Environmental Law Conference October 24, 2015

by E. Clement (Clem) Shute, Jr.^*

Editor's Note: The second annual Lifetime Achievement Award for Contribution to Environmental Law was given to Mr. Shute at the 2015 Environmental Law Conference in Yosemite. As part of the evening, he participated in a Fireside Chat in a question and answer format. Thomas McHenry and Jane Kroesche, members of the State Bar's Environmental Law Section Executive Committee, asked the questions. Below is a standalone article prepared by Mr. Shute which reprises the highlights of the talk.

I am deeply honored to have received this award and truly appreciate the acknowledgment of my career by my peers. The whole process of being notified, hearing from old friends and colleagues, and preparing for the Fireside Chat led me to reflect back across the years. I have tried to recall some highlights as well as some less stellar moments. What stands out is the fact that a whole new area of law developed and matured in less than 50 years. When I started practicing, there was no field of environmental law. In fact, the early advocates for protecting Earth's resources in the 1960s debated what to call themselves, some pushing for the name "conservationists" because to them the idea of pushing back against harmful human endeavors that degraded natural functions was a conservative philosophy. How things have changed!

To make it easier to read and to keep things in context, I have retained the questions that were asked at the Fireside Chat.

HOW DO YOU VIEW THE DEVELOPMENT OF ENVIRONMENTAL LAW IN CALIFORNIA? SPECIFICALLY, WE UNDERSTAND YOU WERE DEEPLY INVOLVED IN THE EARLY DEVELOPMENT OF CEQA. PERHAPS YOU COULD SHARE THAT EXPERIENCE AND HOW YOU SAW CEQA EVOLVE OVER YOUR CAREER, THE GOOD, THE BAD AND THE UGLY.

I could start with recalling the good old days when dinosaurs roamed the Earth and lawyers used carbon paper for copies but instead of war stories, I hope to impart some wisdom and perspective learned from years in the trenches.

Public awareness and fervor over environmental degradation began in the 1960s. Events like the 1969 Santa Barbara oil spill, the huge battle over Glen Canyon Dam, which was one of the first major fights led by the Sierra Club, the Corps of Engineers report, showing that San Francisco Bay was rapidly becoming San Francisco River due to bay fill, and the publication of Rachel Carson's book "Silent Spring", highlighting the damage done by pesticides, brought environmental issues to the forefront of the public eye. In California, this led to significant action. The Legislature created the San Francisco Bay Conservation and Development Commission as a temporary agency in 1965 and, after a momentous legislative struggle in 1969, it was made a permanent agency. Also in 1969, California and Nevada created the Tahoe Regional Planning Agency through an interstate compact intended to reverse environmental damage at Lake Tahoe. When the Legislature deadlocked on coastal protection, the voters enacted Proposition 20 in 1972 creating the California Coastal Commission. These three regional agencies were a result of the realization that environmental problems do not follow arbitrary political boundaries. They were and are an attempt to deal with problems at a regional scale and to overcome parochial local considerations. They were unique nationally when they were created and continue to be. A lot of scientific information, planning principles, and extensive case law important to environmental protection have come from these agencies.

But, perhaps even more important to the development of environmental law on a broad basis in California was the enactment of the California Environmental Quality Act (CEQA) in 1970. It may be a bit surprising today, when CEQA is almost always at the center of controversy, but it was not much debated at the time of enactment. As a political matter, it was simply the California Legislature copying Congress which enacted the National Environmental Policy Act in 1969. The conventional wisdom at the time was that the new law applied when a government agency was proposing a public project like a freeway or city hall. The relevant portion of the statute stated that CEQA required an environmental evaluation for "projects they intend to carry out", referring to actions of government agencies. It was not thought to apply to regulatory actions.

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But, as we all know, things turned out differently. Evelle Younger, a moderate Republican (some of you who are older will remember what those were!), was Attorney General at the time. His political antennae picked up the significance of environmental protection as an issue of public importance. To address this new phenomenon, he created the Environmental Unit within his Office staffed by eight attorneys statewide. The Unit's mission was to enforce California's environmental laws using the Attorney General's independent powers, unrelated to the traditional role of the Office of advising state agencies. He told us (I was there) that he really didn't understand what we did but we made him look good in the public eye. His Administration largely approved our proposed actions.

One of those activities was filing an amicus curiae in Friends of Mammoth.¹ We were on the lookout for a case that raised the question of whether CEQA applied to regulatory actions, and we thought a strong case could be made that it did. A local attorney in Mono County filed a petition raising this issue. We followed the case and when it reached the California Supreme Court, the Attorney General filed an extensive brief that argued given the broad intent of CEQA, as expressed in the legislative findings, a local land use decision granting development approval had to be preceded by CEQA compliance. Our position was considered outrageous by the establishment, but we won in a sweeping decision written by Justice Mosk that adopted much of the argument from our brief. Today, CEQA's application to regulatory actions is taken for granted. However, it might not have happened but for a small group of lawyers in the Attorney General's Office at the time.

The Friends of Mammoth decision in September 1972 literally shut down development in California. Lenders were fearful that projects underway could be stopped because none of them had been the subject of a CEQA analysis. Pending development applications were frozen because no one was sure how to proceed. The Legislature stepped in immediately. The environmental side had the backing of the Supreme Court decision, and probably public opinion.

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