Brian Gray: Bringing Integrative Thinking to Water Law
Professor Brian Gray has his fingerprints all over the complex system that delivers water to most Californians. The scenario goes something like this: Snow falls on the Sierra Nevada and Coast Ranges and is then channeled to the farms and cities of the Central Valley, Bay Area, and Southern California. En route, it builds political and financial empires, and provokes conflicts among environmental, farming, recreation, and development interests—all of which make it a rich legal subject.
Gray began his career in the early ’80s, working with the Howard Rice law firm in San Francisco. By chance, he was assigned to two cases involving San Francisco’s Hetch Hetchy project, which supplies water from the Tuolumne River to the Bay Area. Though he knew nothing about water law, Gray quickly learned its importance in the American West.
Then, Gray was assigned to another legendary case: He defended the Carter administration’s designation of five Northern California rivers as “wild and scenic” against the Reagan administration’s efforts to repeal the protections it provides. Shortly after successfully arguing the case in the United States Court of the Ninth Circuit, he was hired by UC Hastings and has been teaching water resources, environmental law, and related subjects ever since.
Gray’s scholarship has focused on property rights and environmental regulation, the Endangered Species Act, water resources management, climate change, and the use of market incentives to encourage more efficient use and allocation of water. The California Legislature has enacted into law several of his recommendations on in-stream water rights and water transfers. He also has advised Congress on constitutional issues related to federal water policy and argued other environmental cases before the state Supreme Court and the Ninth Circuit.
In recent years, Gray has co-authored a series of books and monographs on California water policy in collaboration with the Public Policy Institute of California (PPIC)—a research institution known for its engagement with state environmental policies. His analyses of the often controversial efforts to align public policy with environmental goals are of particular relevance now, with California experiencing an extreme drought. Gray and his colleagues from PPIC, UC Davis, and Stanford have written: “In the long term, hydrologic changes may impel us to reconsider the tenuous compromises we have made to accommodate the competing interests of water supply, population growth … and restoration and protection of our rivers and aquatic ecosystems.”
This kind of multidimensional thinking is at the very heart of Gray’s work. “This field is endlessly interesting,” he says, “because it is this fascinating convergence of science, economics, law, history, public policy, and politics.”
David Takacs: Defining New Legal Concepts to Protect Our Planet
If Brian Gray has found legal riches in water, his former student and current collaborator on UC Hastings’ environmental track, David Takacs ’08, has found it in another primal element—trees.
Takacs has been involved in articulating an entirely new set of legal principles prompted by the global effort to reduce greenhouse gases. To offset their emissions, polluters may purchase the rights to preserve the carbon embedded in trees in distant rain forests. These trade-offs, or carbon offsets, are part of the funding for a comprehensive international strategy known as REDD+, reducing emissions from deforestation and forest degradation.
But commodifying the right to preserve carbon in living organisms carries with it a bundle of legal challenges. As Takacs puts it, “Who owns the land? Who owns the trees? Who owns the right to carbon credits from those trees? Ten to 15 years ago, no one thought of carbon as a property, something people could own. Now, we have to think of carbon rights.”
Takacs, who has published widely on this subject, has a PhD in science and technology studies from Cornell and was a professor of earth systems science before turning to law. He has been in the vanguard of scholars attempting to ground these complex transactions in a legal foundation. In a recent paper for the Vermont Law Review, for example, he took on the thorny matter of how principles of international law can be adapted to a climate protocol that requires intrusive measurement and verification practices—confirming, say, that a forest is indeed being preserved as promised—that cross traditional boundaries of national sovereignty.
“This is where climate policy and science meet the law,” Takacs says. “It represents a new legal frontier.”
And this frontier is exactly where many law students want to be these days. “If you want an intellectually stimulating and ethically based career, environmental law is it,” Takacs says. “New jobs and professional titles we hadn’t even thought about before are taking shape right now.
Read more from UC Hastings magazine, The Enterprise Issue, here.