January 22, 2019

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
WAGLAC San Diego Meeting
February 18-20, 2019
The Westin San Diego
San Diego, CA
WAGLAC will be meeting in San Diego on February 19th and 20th. In addition to the roundtable discussion, Eric M. Katz, Supervising Deputy Attorney General Natural Resources Law Section of the Office of California Attorney General will speak on California Surface and Groundwater: New Developments in the Sacramento-San Joaquin Delta and the Sustainable Groundwater Management Act (SGMA). 

Please complete a registration form (located at the bottom of the meeting announcement) and email to CWAG Executive Assistant, Joy Orr at  joy.orr@doj.ca.gov or fax to 916-323 0241 by no later than  January 28th, 2019.
NAAG Winter Meeting
March 4-6, 2019
Washington, D.C.

CWAG, as part of the NAAG Spring Meeting, sets up meetings with the heads of federal agencies.  The Attorneys General typically ask WAGLAC for a list of current issues to discuss with the federal agency heads. This year CWAG plans to meet with the Department of Interior. Please send Clive Strong at Clive.Strong@cwagweb.org a list of any issues you think should be discussed with the Department of Interior. 
Meet and Greet: Assistant Attorney General

Jeffrey Bossert Clark began serving as Assistant Attorney General of the Environment and Natural Resources Division (ENRD) on November 1, 2018. Prior to his confirmation as Assistant Attorney General, Mr. Clark was a partner with the international law firm of Kirkland & Ellis LLP in its Washington, D.C. office. During his time at the firm, he practiced in diverse areas of law, ranging from environmental to antitrust. Mr. Clark has argued and won numerous cases in multiple U.S. Courts of Appeals. He has deep experience in matters involving the Clean Air Act, the National Environmental Policy Act, the Energy Policy and Conservation Act of 1975, and the Energy Independence and Security Act of 2007.

From 2001 to 2005, Mr. Clark served as a Deputy Assistant Attorney General within ENRD. In that role, he oversaw ENRD’s Appellate Section and the Indian Resources Section, where he reviewed, edited, and contributed to virtually every brief that ENRD filed in the Courts of Appeals, including several cases of exceptional significance that he personally briefed and argued. During his time in ENRD, Mr. Clark also worked on all environmental or natural resource cases argued in front of the Supreme Court.

Mr. Clark received his bachelor’s degree in Economics and History from Harvard University and earned a master’s degree in Urban Affairs and Public Policy from the University of Delaware. He obtained his law degree from the Georgetown University Law Center, where he was an editor for the Georgetown Law Journal. Mr. Clark has taught classes as an adjunct professor at the Antonin Scalia Law School. From 2012 to 2015, he served as an elected member of the Governing Council of the American Bar Association’s Administrative Law Section.
In Civil Settlements with the United States and California, Fiat Chrysler will Resolve Allegations of Cheating on Federal and State Vehicle Emission Tests
Fiat Chrysler Will Recall and Repair Vehicles, Pay Civil Penalties, Implement Corporate Governance Reforms, and Fully Mitigate Excess Pollution. Total Value of Settlements Will Exceed $500 Million
January 10, 2019

The Department of Justice, the Environmental Protection Agency (EPA) and the State of California announced a settlement with Fiat Chrysler Automobiles N.V., FCA US, and affiliates (Fiat Chrysler) for alleged violations of the Clean Air Act and California law. Fiat Chrysler has agreed to implement a recall program to repair more than 100,000 noncompliant diesel vehicles sold or leased in the United States, offer an extended warranty on repaired vehicles, and pay a civil penalty of $305 million to settle claims of cheating emission tests and failing to disclose unlawful defeat devices. Fiat Chrysler also will implement a program to mitigate excess pollution from these vehicles. The recall and federal mitigation programs are estimated to cost up to approximately $185 million. In a separate settlement with California, Fiat Chrysler will pay an additional $19 million to mitigate excess emissions from more than 13,000 of the noncompliant vehicles in California. In addition, in a separate administrative agreement with the United States Customs and Border Protection, Fiat Chrysler will pay a $6 million civil penalty to resolve allegations of illegally importing 1,700 noncompliant vehicles.

The Environmental Protection Agency and California settlement (EPA/California Settlement) resolves claims of EPA and California relating to Fiat Chrysler’s use of defeat devices to cheat emission tests. Defeat devices are design elements (in this case software functions) installed in vehicles that reduce the effectiveness of the emission control system during normal on-road driving conditions. The affected vehicles are model year 2014 through 2016 Ram 1500 and Jeep Grand Cherokee vehicles equipped with “EcoDiesel” 3.0 liter engines.

This settlement does not resolve any potential criminal liability. The settlement also does not resolve any consumer claims or claims by individual owners or lessees who may have asserted claims in the ongoing multidistrict litigation. In addition to its separate settlement addressing excess emissions for affected vehicles in California, the state of California has also entered into another separate settlement with Fiat Chrysler resolving alleged violations of California consumer protection laws relating to the affected vehicles.
Fourth Circuit Upholds Virginia's 401 Certification For Atlantic Coast Pipeline
The United States Fourth Circuit Court of Appeals upheld Virginia's Clean Water Act (CWA) section 401 certification for the Atlantic Coast natural gas pipeline. The plaintiffs, in Appalachian Voices v. State Water Control Board, asserted Virginia failed to consider “all relevant factors” when granting its 401 certification. The Court rejected plaintiffs’ assertions stating that while “[g]overnmental agencies can always take additional steps to increase the protection of the environment . . . that is not the applicable legal standard this Court utilizes when reviewing a state agency’s issuance of a Section 401 Certification. We must determine “whether the agency considered the relevant factors and whether a clear error of judgment was made.” . . .There is no indication that the State Agencies did not consider relevant factors or that they clearly made an error of judgment.” 

The Appalachian decision follows the Fourth Circuits August 2018, decision in Sierra Club v. State Water Control Board upholding Virginia’s 401 certification of the Mountain Valley pipeline. Both proposed pipelines will transport natural gas from the Marcellus Shale and other mid-Atlantic production areas to power plants and other downstream sources.
Texas AG Paxton Issues Opinion on What Extent the Permanent School Fund can be Nonspendable

Attorney General Ken Paxton issued a four-page opinion on Jan. 7 responding to General Land Office Commissioner George P. Bush’ question regarding the extent to which the Permanent School Fund should be classified as nonspendable in annual financial reports. As stated in Paxton's opinion, "the Permanent School Fund is 'a perpetual endowment for the public schools of this state,'" which "consists of all land appropriated for public schools by the constitution or state laws, other properties belonging to the fund, and all revenue derived from the land, other properties, or investment of properties belonging to the fund." The opinion concluded “Article VII, section 5 of the Texas Constitution expressly prohibits the Legislature from enacting a law appropriating any part of the Permanent School Fund except as therein provided. Funds in the state treasury may not be expended without a legislative appropriation. The Constitution thereby makes the Permanent School Fund nonspendable except for specific distributions and payments authorized by the Constitution, and it should be so classified on annual financial reports.”
Bill to tap New Mexico's Permanent Fund for Early Education Clears Committee
Las Cruces Sun News
January 26, 2019

A proposal to take more money from the state permanent fund each year to pay for early childhood education passed the House Judiciary Committee on Friday and will now head to the House floor.

House Joint Resolution 1 would increase the annual distribution from the Land Grant Permanent Fund from the current 5 percent to 6 percent, with most of the new money going to early childhood education. The bill had previously cleared the House Education Committee, and was passed Friday in Judiciary on a 7-4 party-line vote with Democrats in support and Republicans in opposition.

Much of the debate Friday came down to a choice between today’s children and those still to come. Rep. Greg Nibert, R-Roswell, argued that the fund would not be here today if previous generations had not been prudent in its management.
Colorado Supreme Court Reverses Appeals Court Ruling in Martinez Case
Ruling says state regulators correct to balance development with public health, environmental impacts; governor, lawmakers vow to update state’s policy
The Denver Post
January 14, 2019

In a win for the oil and gas industry, the Colorado Supreme Court reversed a lower court ruling that said the Colorado Oil and Gas Conservation Commission should give more weight to the public health, safety and the environment when considering new drilling.

However, the win could turn out to be a lull before the next political face-off that has become more common as drilling has ramped up in the state’s more populous areas. As industry representatives welcomed the court’s decision, saying it upholds the law’s recognition of multiple interests, legislators and Gov. Jared Polis said the ruling highlights the need for changes to better protect the public.
Attorney General Phil Weiser Pledges to Work With State Agencies, Local Communities to Ensure Oil/Gas Development is Consistent With Public Health, Safety, and Environment
January 14, 2019

Colorado Attorney General Phil Weiser released the following statement in response to the Colorado Supreme Court’s decision in Colorado Oil and Gas Conservation Commission v. Martinez:

“The Colorado Supreme Court properly ruled that the Colorado Oil and Gas Conservation Commission has the statutory authority and obligation to regulate oil and gas development as necessary to protect the public health, safety, and environment. In so doing, it also characterized the Commission’s action as a decision on the merits of the proposed rule and emphasized the discretion of the Commission on how it can choose to address this issue.

“...Moving forward, I will work with the Commission and other state agencies to ensure that oil and gas development in Colorado is consistent with the public health, safety, and environment. To do so, the Attorney General’s office will provide sound legal advice as the Commission develops appropriate protections and evaluates particular applications. Furthermore, I am committed to working with local communities—as they enter into surface use agreements and memoranda of understanding, for example—to provide technical assistance as they seek to protect the public health, the safety of their residents, and their local environment. Finally, should the legislature seek to clarify the mandate of the Commission, I look forward to working with it.”
Utah Attorney General Sean D. Reyes Joins Bipartisan Coalition of Attorneys General in Brief Defending Law That Protects Native American Children
January 18, 2019

Attorney General Sean D. Reyes joined a bipartisan coalition of 21 states in filing an amicus brief in the Fifth Circuit Court of Appeals to defend the Indian Child Welfare Act (ICWA) in Brakeen v. Zinke. ICWA is a 40-year-old federal law that furthers the best interests of Native American children and protects the sovereignty of Indian tribes by preserving children’s connections to their tribal heritage.

In this case, individual plaintiffs, along with the states of Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge the law. In October 2018, the district court for the Northern District of Texas agreed and struck down much of ICWA on constitutional grounds. The brief filed by Attorney General Reyes and 21 other Attorneys General argues that ICWA is an appropriate exercise of Congress’s broad authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection principles. The brief also highlights ICWA’s important role in reducing disparities in child removal rates and improving the collaboration between states and tribes relating to their shared interest in improving the health and welfare of Native American children.iii
Attorney General Reyes joined the Attorneys General of California, Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia, Washington, and Wisconsin in filing the brief. 
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.