Budget Cuts Causing State Park Closures

By: Clay Duncan, Staff Member

The recreational and environmental value provided by state parks across the U.S. is soon to be diminished due to lack of funding.  State budget cuts are resulting in closures of many parks nationwide, as well as a reduction in operations in many that will remain open.

[1]

  Despite their perception as mere places of leisure, state parks are important national attractions whose continued maintenance is important to the preservation of America’s emphasis on environmental upkeep.  With funds scarce and expenses rising, states must become creative with ways to get the necessary money to keep these parks alive.

California closed a whopping 70 parks, while Arizona cut funding to parks completely.

[2]

  Other states have made multimillion dollar cuts to funding previously allocated to state park maintenance.

[3]

  The necessity of these closures is not for lack of attendance nationally, as U.S. state parks saw a 14 million visitor increase from 2009 to 2010.

[4]

  What’s more, state parks are fairly large employers in a country troubled with unemployment, providing some 270,000 jobs across the country.

[5]

A likely reason for these budget cuts to state parks is that states do not receive matching funds from the federal government for the funds it spends on them,

[6]

thus such spending equates to a dollar for dollar reduction in money that could be used elsewhere.  Even those federal programs that have provided funding for state parks are at risk of being eliminated.

[7]

  One such program is the Recreational Trails Program, which “provides funds to the States to develop and maintain recreational trails and trail-related facilities for both nonmotorized and motorized recreational trail uses.”

[8]

To make up for the loss in funding once provided by the budgets, some states have resorted to raising fees in exchange for unlimited parks access,

[9]

and seeking corporate and nonprofit partnerships by offering them advertising opportunities and control over operations.

[10]

  In Ohio and Pennsylvania, legislation has been introduced which proposes leasing state park land to oil and gas drillers.

[11]

  Proponents of the legislation see it as a necessary measure to raise the requisite funds for much needed park projects, while skeptics see such a move exposing parks to corporate greed.

[12]

State funding is scarce in most areas of the country, so budgetary cutbacks rarely come as a surprise.  But if an effective replacement for this source of money is not found and state park closures proceed as projected, Americans will soon be deprived of great opportunities to see this country’s natural landscape.

[i]

Douglas Shinkle,

Parks in Peril

, National Conference of State Legislatures (Jan. 2012),

http://www.ncsl.org/issues-research/env-res/parks-in-peril.aspx

.

[ii]

Id

.

[iii]

Id

.

[iv]

Id

.

[v]

Id

.

[vi]

Shinkle,

supra

note 1.

[vii]

Id

.

[viii]

Recreational Trails Program

, U.S. Department of Transportation Federal Highway Administration,

http://www.fhwa.dot.gov/environment/recreational_trails/index.cfm

(last updated Apr. 27, 2012). 

[ix]

Shinkle,

supra

note 1.

[x]

Id

.

[xi]

Id

.

[xii]

Id

. 

Training Minds to Consider the Environment: California’s Proposed Environmental Education Curriculum in Primary and Secondary Public Schools

By: Jessica Layne Drake, Staff Member

The children of our nation are, unquestionably, our future. They are the future presidents, congressmen, teachers, and parents who will pass on the American history and values that are taught to them from this generation. Most of this knowledge might come from the home, but a secondary, influential source is the school – most likely this influence comes from public education systems. The power of the school curriculum first made news this year with a New York Magazine article entitled How Christians Were the Founders, which discussed the Texas School Board's push to place emphasis on the Founder's intent to create a "Christian Nation" in their students' Social Studies education. Russell Shorto, How Christians Were the Founders, New York Times, Feb. 14, 2010, available at http://www.nytimes.com/2010/02/14/magazine/14texbooks-t.html?pagewanted=1. However, Texas is not the only one making changes to its curriculum in an effort to educate in a different way. California, while not as influential with textbook publishers as Texas (mostly because of its despairing financial state), has been working with the State's Environmental Protection Agency to find a way to bring a greater focus on the environment in elementary and secondary public schools – hoping to encourage students to grow up to become future scientists and green technology leaders. California Environmental Protection Agency, http://www.calepa.ca.gov/education/eei/ (last visited Mar. 1, 2010).

This initiative, termed the Education and Environment Initiative (EEI), would affect over 1,000 schools that serve over 6 million children across the state of California. Id. This movement began with legislation mandating the curriculum in public schools in 2003, and required several different California agencies to work together in this nation-leading effort. Id; See 2003 Cal. Legis. Serv. Ch. 665 (A.B. 1548) (West); 2005 Cal. Legis. Serv. Ch. 581 (A.B. 1721) (West). As of this year, proposed legislation will further the initiative in mandatory inclusion of environmental issues taught in public schools. Cal.Pub.Res.Code § 71303 (2009). On January 7, 2010, the California Environmental Protection Agency released a statement declaring that the final approval of this proposed curriculum was granted by the California State Board of Education. California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. Its implementation, therefore, appears imminent.

Specifically, the curriculum will encourage and teach environmental protection and preservation that will work to establish a green economy in the state. Id. Further, it will expand environmental literacy among students and teach them problem-solving mechanisms in particular environmental areas. Id. Collectively, it will impact public school children in grades K-12 covering 85 EEI Curriculum units that will cover content standards in both Science and History-Social Science. California Environmental Protection Agency,

http://www.calepa.ca.gov/Education/EEI/Curriculum/Default.htm#CurriculumUnits.

While California is the first state to attempt this type of curriculum for their primary and secondary schools, hopefully it will not be the last. Our young students are who we will want to look for in the future for imagination and initiative in a continuing effort to protect and preserve the environment so vital to our world. As Senator Fran Pavley, who first introduced the 2003 legislation, stated in support of the curriculum, "today's environmental issues are integrated into everyday life, and this curriculum gives us the opportunity to help shape our future leaders and educate them about preserving our environment through their everyday academics." California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. If we support a better environmental education to our students, we very well can assist, today, those future leaders in bettering their own world in the future, for tomorrow is only a day away.

“Mother May I? California’s Struggle for Clean Air Under the Federal Government’s Preemptive Thumb: Engine Manufacturers Ass’n v. South Coast Air Quality Management District”

Appearing in JNREL Vol. 20 No. 2 the following comment was written by former staff member Anne Todd. Staff member Tara Hester wrote the following abstract.

The federal Clean Air Act (CAA) is superior to the laws of the states and cannot be preempted. Not only does the CAA rely on this general rule of preemption, but has explicit preemptory language as well, stating that "no state shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles . . . . " Engine Manufacturers Ass'n v. South Coast Air Quality Management District, 541 U.S. 246,252 (2004), involved the implementation of " Fleet Rules" issued by the South Coast Air Quality Management District (AQMD), and is centered on whether those "Fleet Rules" constituted a standard in violation of the CAA.

During World War II, Los Angeles began to see the effects of increasing industrialization in the form of severe air pollution. Due to California's distinctive air pollution problems, Congress recognized that more stringent measures would be needed to combat the poor air quality, and the CAA granted California exclusive authority to set tougher emission standards than those implemented by the federal government.

The defendant in the subject case, AQMD, has the responsibility of ensuring the Los Angeles area achieves certain air quality standards. AQMD enacted "Fleet Rules" requiring various public and private operators of area fleets of fifteen or more vehicles to buy alternative fuel or cleaner fuel vehicles when these vehicles were commercially available. The fleet rules did not regulate manufactures, but set purchase requirements for when new vehicles were needed. However, the Engine Manufactures Association (EMA) said the purchasing requirements were standards preempted by the CAA and therefore not enforceable.

The District Court's decision is centered on an extensive analysis of the preemption doctrine. The court noted that the CAA states that fleet rules must be established in areas of high pollution, and it does not seem logical that the CAA would authorize purchasing requirements in the form of fleet rules and then prohibit them as the adoption of a "standard". The Court stated that in the area of traditional local police powers, such as air pollution prevention, the presumption is that local powers are not preempted.

However, the Supreme Court took a different view, characterizing the AQMD's Fleet Rules as standards and therefore in violation of the CAA. The Court first stated that if AQMD could enact standards, then other political subdivisions could do the same, and this would undo Congress's regulatory scheme. However, the most significant error the Court made was its reliance on a textual interpretation of the CAA rather than a broader look at the preemption doctrine. As suggested by the dissent, AQMD's purchasing requirements were not mandates because they only required the purchase of lower emission vehicles that were already on the market, and were not applicable if the fleet operators required models that were unavailable in a cleaner fuel model. Also, while the fleet rules may have reduced the demand for higher emission vehicles, it would not have completely destroyed the market for them.

By disallowing AQMD's fleet Rules, the Court took away a direct route to air quality improvement and forced AQMD to work through the California legislature to get results implemented. The AQMD must go back to the long line of those awaiting Congress' attention in order to make a change affecting fuel emissions. Additionally, agencies like the AQMD will no longer be able to provide strong incentives for manufacturers to create "cleaner" vehicles. This extremely broad reading and application of preemption led the Court to essentially ignore public policy reasoning in support of air quality.

“The Terminator a Trendsetter? How California’s Global Warming Solutions Act Will Impact California, the United States, and the World.”

Appearing in JNREL Vol. 21, No. 2 this Note was written by former JNREL Technical Editor Keeana Sajadi. Staff member Jessica Drake wrote the following abstract.

In September of 2006, Arnold Schwarzenegger, Governor of the state of California, signed into law the most comprehensive greenhouse emission reduction program in the United States at that time, the Global Warming Solutions Act (GWSA). The Act would require reporting of the current emissions and a detailed timeline to reduce pollution rates in California to 1990 levels by the year 2020. The state established itself as a leader who would, through their efforts and projected success in such reductions as well as increases in overall energy expenses and job creations, gain governmental following by the United States and the world.

Because California is the twelfth largest emitter in the world of this pollution, it will use GWSA to reduce the associated stigma with that status and minimize its role in the harsh effects resulting from greenhouse emissions made by the state itself, other states of America, and counties around the world. Besides GWSA's establishment of short-term goals for reductions, it also allows the California Air Resources Board, created by GWSA to implement a specific reduction plan and timeline, to provide future guidance to the Governor once the 2020 goal is attained. Further, it applies the program with an eye toward creating a workable market-based compliance mechanism, limiting emissions through automobiles, and minimizing leakage of emission to surrounding areas because of reductions in California.

The implementation of such a bold step in environmental protection incites opposition from individuals and industries that will be currently affected. Farmers, power companies, and car manufacturers argue against this drastic plan that will require major changes for their operations. However, the benefits for the state, country and world-at-large overshadow those concerns. Because the program indirectly provides lower long-term energy costs, major increases in employment opportunities, better economic spending and saving, and progression in innovative technology that should ensure a better future for our natural environment, it is well worth the short-term discomfort for such industries today. Although there are critics with legitimate concerns, the GWSA benefits will outweigh any burdens imposed.

For a more specific and thorough analysis of California's monumental effort to reduce these emissions and encourage others to follow its lead, read Keeana Sajadi's "The Terminator a Trendsetter? How California's Global Warming Solutions Act will Impact California, the United States and the World," JNREL Vol. 21, No. 2.

Addressing Fraud in Organic Farming

This post was written by staff member Adrianne Crow.

Almost everyone has heard of the supposed benefits of organic foods. However, recent problems surfacing in the organic food industry suggest that consumers may not always be getting what they pay for.

A recent article in the Lexington Herald-Leader explained that in the past year, several fertilizer makers, some of which are leaders in the California organic market, have come under fire for using substances in their fertilizers that are banned from organic farms. Jim Downing, California moves to curb organic fraud, LEXINGTON HERALD LEADER, available at http://www.kentucky.com/greenspot/story/939041.html (last visited Sept. 22, 2009). In January, Port Organic Products was raided by federal agents who found a stock of aqua ammonia. Jim Downing, Organic crop fraud targeted, THE SACRAMENTO BEE, available at http://www.sacbee.com/business/story/2188480.html (last visited Sept. 22, 2009). Aqua ammonia is a common source of synthetic nitrogen. Additionally, an investigation by The Sacramento Bee discovered that the Department of Food and Agriculture discovered the company California Liquid Fertilizer adding synthetic nitrogen to its fertilizer. Id. This particular company sold its produce to organic food leaders Earthbound Farm and Driscoll's, as well as other organic farming leaders. Id.

While synthetic fertilizers do not necessarily present health risks to consumers, they are disfavored by organic farmers because of the negative environmental impacts they can cause. Id. These fertilizers utilize increased energy in production, lower the natural fertility of soil and increase water pollution. Id. Furthermore, consumers of organic produce are willing to pay a higher price for the goods because of the promise that they were grown without these types of chemicals. Id.

Despite the controversy caused by these dishonest business practices, the only penalty handed down to California Liquid Fertilizer was to stop selling the product on the market. Id. Reacting to this situation, the state of California, which leads the nation in the organic farming, also plans to be the leader in combating fraud in the industry. Id. Assembly Bill 856, which was authored by Assemblywoman Anna Caballero, addresses these problems in the area of organic fertilizer. Id. A copy of the bill in its current state can be found on Cabballero's website: http://democrats.assembly.ca.gov/members/a28/Legislation/default.aspx. The bill, which should arrive on the desk of California Governor Arnold Schwarzenegger soon, increases penalties for violations of organic fertilizer standards. Id. In addition, it increases the authority that state regulators have over inspections and raises approximately $416,000 per year for enforcement due to new fees imposed on fertilizer makers. Id.

THE JURY’S ROLE IN EMINENT DOMAIN COMPENSATION AS EXPLAINED IN METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA v. CAMPUS CRUSADE FOR CHRIST, INC.

Appearing in JNREL Vol. 22 No. 2, this comment was written by former Comments Editor Ashley Owens. This abstract was written by staff member Tanner James.

Few legal terms elicit an impassioned response comparable to that inspired by "eminent domain." When discussing the governmental power to take possession of private, real property, the reactions are as varied and intense as one might imagine. Given this volatility, courts are faced with a delicate balancing act when defining the terms and limits of this power and its interpretation.

In Metropolitan Water District v. Campus Crusade for Christ, Inc., 161 P.3d 1175 (Cal. 2007), the California Supreme Court undertook the task of defining the role of judge and jury in determining damages (i.e., compensation) in eminent domain actions. At issue was the question of who should decide what constitutes "the highest and most profitable use to which the property might be put in the reasonably near future." Specifically, when property would require rezoning in order to achieve its "highest and most profitable use," who is to decide whether the possibility of rezoning is sufficient to justify damages based on the planned use of the property?

In a reversal of the lower court, the California Supreme Court held that the jury must be presented any evidence that would show a "reasonable probability" of rezoning. Furthermore, the court held that the question of rezoning-probability should be submitted to the fact-finders if a reasonable juror could find that rezoning is likely. This holding effectively establishes the judge as a gatekeeper, while also granting substantial power to the jury to determine the extent of damages.

The implications of this case are, appropriately, subject to criticism from both poles. While the damages awarded may increase as a result of jury control, the judge still retains the power to exclude certain damages as the ultimate gatekeeper.