Hastings Environmental Law Journal Volume 8 Article 1 Number 1 Fall 2001 1-1-2001 Litigation's Bounded Effectiveness and the Real Public Trust Doctrine: The Aftermath of the Mono Lake Case Craig Anthony (Tony) Arnold Leigh A. Jewell Follow this and additional works at: https://repository.uchastings.edu/ hastings_environmental_law_journal Part of the Environmental Law Commons Recommended Citation Craig Anthony (Tony) Arnold and Leigh A. Jewell, Litigation's Bounded Effectiveness and the Real Public Trust Doctrine: The Aftermath of the Mono Lake Case, 8 Hastings West Northwest J. of Envtl. L. & Pol'y 1 (2002) Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol8/iss1/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Environmental Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. "In the long run, as Los Angeles drinks, the lake shrinks."' 1. Introduction Litigation obviously plays a significant role in environmental and natural resources poli- cy.2 However, the effectiveness of environmen- Litigation's Bounded tal litigation - both as a means of resolving Effectiveness and the Real disputes and as a means of protecting the Public Trust Doctrine: environment - is hotly debated.3 Setting aside questions about the legitimacy, fairness, and The Aftermath of the Mono efficiency of litigation and judicial decisions in Lake Case* resolving environmental and natural resources conflicts, one can easily become overwhelmed By Craig Anthony (Tony) Arnold& with the single question of environmental liti- and Leigh A. Jewell& Reprinted with modifications and permission from Beyond Litigation: Case Studies in Water Rights Disputes (Craig Anthony (Tony) Arnold & Leigh A. Jewell eds., forthcoming 2001 from the Environmental Law Institute). © Environmental Law Institute, 2001, http://www.eli.org. & Associate Professor of Law and Director of the Center for Land Resources, Chapman University School of Law. S Candidate, (uris Doctor, Chapman University School of Law, Class of 2002, I. Robert Crabbe, As Mono Lake Rises, Its Political Climate Is Slowly Changing, Los Angeles Times Oct. 26, 1986, at WL 2144113. 2. A. Dan Tarlock, The Future of Environmental "Rule of Law" Litigation, 17 PACE ENVTL. L. REV. 237, 241-47 (2000); see also FREDERICK R. ANDERSON et al., ENVIRONMENTAL PROTECTION: LAW AND POLICY, 3d ed. 24-25 (3d.ed. 1990); ROBERT L. FISCHMAN et al., AN ENVIRONMENTAL LAWANTHOLOGY 153 (1996); FRANK P GRAD & JOEL A. MINTZ, ENVIRONMENTAL LAW 4th ed. 5-7, 1159-1336 (2000); WILLIAM MURRAY TABB & LINDA A. MALONE, ENVIRONMENTAL LAW: CASES AND MATERIALS, 2d ed. 181-232 (1997). 3. Scholarship discussing the effectiveness of environ- mental litigation includes Troyen A. Brennan, Environmental Torts, 46 VAND. L.REV. I (1993); Rosemary O'Leary, The Impact of Federal Court Decisions on the Policies and Administration of the U.S. Environmental Protection Agency, 41 ADMIN. L. REV.549 (1989); and Joseph L.Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970) [hereinafter Sax, Public Trust). Scholarship contesting the impact of environ- mental litigation includes Grad & Mintz, supra note 2 at 14-16; Jonathan H. Adler, Stand or Deliver: Citizen Suits, Standing, and Environmental Protection, 12 DUKE EvNVrL. L.& POL Y F.39 (2001), Daniel A. Farber, Is the Supreme Court Irrelevant? Reflections on the Judicial Role in Environmental Law, 81 MINN. L.REV. 547 (1997); and Richard I.Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631 (1986). Professor Tarlock offers the most insightful and balanced view, highlighting the tremendous impact environ- mental litigation had in creating and shaping environmental law, but questioning its continued effectiveness and environ- mental law enters its "second generation." Tarlock, supra note 2. Crai-QAnthony Arnold and Leiqh A.Jewell Volume 8, Number1 CmiQ Anlhony Arnold and Leigh A.Jewell Volume 8,Numberi gation's efficacy. For example, parties to envi- mental litigation is effective, ineffective, and ronmental litigation often have conflicts and partially effective. Instead, case studies - qual- problems that are much larger and more multi- itative empirical research - offer the rich faceted than the legal issues addressed in liti- details and complex interplay of factors need- gation. There is a growing awareness that ed to shape our understanding of environmen- forms of dispute resolution other than litiga- tal and natural resources litigation, even if case tion may be needed to solve the parties' prob- studies do not "prove" a thesis.9 We have cho- lems and resolve their complex mix of legal sen to examine the effectiveness of environ- and non-legal conflicts, and that dispute reso- mental litigation by conducting a study of one lution is often only a subset of problem solv- • 4 of the most famous environmental cases of the ing.4 Furthermore, conflicts between parties to twentieth century, involving judicially imposed environmental litigation often persist long common law constraints on natural resources after the courts have "definitively" resolved the exploitation to protect the environment: legal issues in the case. 5 In many contexts, lit- National Audubon Society v. Superior Court.t ° The igation may be dispute non-resolution.6 Both case involved a conflict over Mono Lake, an in the specific conflict in question and in other unusual and ecologically valuable lake in conflicts over similar environmental and natu- Northern California, which was experiencing ral resources issues, a judicial decision may dropping lake levels and the resulting environ- have very little real impact on the parties' mental harm due to more than forty years of actions or may have only a "shadow" impact. diversions of water by Los Angeles for its water The law in both theory and doctrine may not be supply. The case pitted a powerful, growing urban area, protecting its long-standing, well- the law in practice 7 recognized rights to appropriate water from Speculation and grand theorizing about Mono Lake's feeder streams, against deter- the effectiveness of environmental litigation mined, creative environmentalists, who argued adds little to the debate. Instead, empirical evi- the public trust doctrine prevents the recogni- 8 dence is needed. Although scholars could tion of water rights that result in environmen- undoubtedly design rigorous statistical studies tal harm. to test the effectiveness of environmental liti- Public trust is a common law doctrine that gation, such studies would arguably miss many limits the power of state legislatures and their of the nuances of the ways in which environ- administrative agencies from conveying land 4. Craig Anthony (Tony) Arnold, Planning Milagros: 7. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS Environmental Justice and Land Use Regulation, 76 DENV. U. L. REV. I SETTLE DISPUTES 137-55 (1991 ). (1998) ]hereinafter, Arnold, Environmental Justice]; Luke W. Cole, 8. Many scholars have called for greater empirical work in Empowerment as the Key to Environmental Protection: The Need for legal scholarship. See id. at 6-8, 137-55; Arnold, Environmental Environmental Poverty Law, 19 ECOLOGY L.Q. 619 (1992); Carol E. Justice, supra note 4, at 88-89; Adeeb Fadil, Citizen Suits Against Dinkins, Shall We Fight or Will We Finish: Environmental Dispute Polluters: Picking Up the Pace, 9 HARV. ENVTL. L. REV. 23, 29-30 (1985); Resolution in a Litigious Society, 14 ENVTL. L. REP. 10,398 (1984); Frank John P Heinz, Why Study Law Among the Tiv (or Among the Los P. Grad, Alternative Dispute Resolution in Environmental Law, 14 COL. 1. Angelenos)?, 79 Nw. U.L. REV. 1269 (1985); Craig Allen Nard. ENVTL. L_ 157 (1989); Ann L. MacNaughton, Collaborative Problem- Empirical Legal Scholarship: Reestablishing a Dialogue Between the Solving in Environmental Dispute Resolution, I11) NAT. RES. & ENvr. 3 Academy and the Profession, 30 WAKE FOREST L. REV. 347 (1995); Teresa (Summer 1996); Lawrence Susskind & Alan Weinstein, Towards a A. Sullivan, Methodological Realities: Social Science Methods and Business Theory of Environmental Dispute Resolution, 9 B.C. ENVTL. ArF L. REV. Reorganizations, 72 WASH. U. L.O. 1291 (1994); Lee E. Teitelbaum, 311 (1980); Tarlock, supra note 2, at 242-43, 254-69. An Overview of Law and Social Research, 35 1. LEG. ED. 465 (1985). 5. Craig Anthony (Tony) Arnold, Litigation as Dispute Non- 9. The works cited in note 8, supra, generally discuss both Resolution: Lessons from Case Studies in Water Rights Disputes, in BEYOND quantitative and qualitative empirical research and their compar- LITIGATION:CASE STUDIES IN WATER RIGHTS DISPUTES (Craig Anthony ative advantages and disadvantages. For further comparisons (Tony) Arnold & Leigh A. lewell, eds., forthcoming 2001) (here- and research design methods, see JOHN W. CRESWELL, RESEARCH inafter, Arnold, Dispute Non-Resolution]; Ann E. Carlson, Standing for DESIGN: QUALITATIVEAND QUANTITATIVE APPROACHES (1994): MICHAEL the Environment, 45 UCLA L. REV. 931, 998-1003 (1998); QUINN PATTON,QUALITATIVE EVALUATION AND RESEARCH METHODS, (2d MacNaughton, supra note 4, at 3; Tarlock, supra note 2, at 254-56, ed. 1990); ROBERT K. YIN, CASE STUDY RESEARCH: DESIGN AND 263-69. METHODS, (2d ed.