July 15, 2010

Chief Justice George and environmental law

By Chief Justice George and environmental law

Author:  Damien M. Schiff

Yesterday, California Supreme Court Justice Ronald George announced that he will step down in January.  A few years ago, my colleague Tim Sandefur and I wrote a white paper reviewing the modern California Supreme Court, trying to categorize its jurisprudence and compare the quality of its output to its predecessors.  We concluded that the George Court has shown "little interest in protecting private property and economic freedom" but instead "has remained fixed within the Progressive Era ideas of law and politics, seeing collective decision-making, rather than the preservation of constitutional liberty, as the standard for jurisprudence."

Those observations are born out by the George Court's environmental law jurisprudence.  In the paper, we reviewed several recent cases concerning the California Environmental Quality Act, the Forest Practice Act, the California Endangered Species Act, and the public trust doctrine.  In each of these cases—Mountain Lion Foundation v. Fish & Game Commission, Big Creek Lumber Co. v. County of Santa Cruz, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, and Environmental Protection Information Center v. California Department of Forestry & Fire Protection—Chief Justice George voted for the "environmental" result and against the interests of property owners.  (The Court's most recent environmental law decision—Communities for a Better Environment v. South Coast Air Quality Management District—saw the Chief Justice again voting for the environmentalists and against the permit holder/government agency).

Interestingly, in almost all these cases the end result was not a total victory for environmentalist concerns, i.e., a no-development or no-growth outcome.  Rather, the end result was more environmental impact review, more mitigation, more bureaucratic hurdles.  In that respect, the George Court environmental jurisprudence fits quite neatly within the Progressive paradigm of seeking greater public input and imposing more government control over otherwise private activity.

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