12. The Long Arm of the Law - Yours
(from The Far Side of Eden)
Tom Lippe grew up in faraway Florida but went to law school at Stanford University and spent his free time in the Sierra Nevada. He naturally gravitated toward environmental issues and “social betterment”—his phrase—and by the time he graduated knew he wanted to practice in the public interest. Environmental litigation would be his niche.
In the eighties in northern California that meant the timber wars. Protecting old growth was the emblematic regional struggle, and Lippe represented the Sierra Club and another organization up in Humboldt County against Pacific Lumber, with some success. Along the way he got to know the leadership of the club in San Francisco, where its headquarters was located. He later opened an office just blocks away from the Sierra Club’s utilitarian digs in the Mission District.
“He now shared a suite with a financial consulting firm in an Embarcadero skyscraper but kept his hair long; he wore open shirts and sport jackets, and rarely talked about strategy. “Litigation is like poker,” he would say. “You don’t say what cards you had in the last hand” once your opponent folds. And you don’t waste a lot of time on sentiment.
In 1998, he got a call from a woman in Napa Valley named Chris Malan. He wasn’t surprised to learn that she had heard of him through the Sierra Club; it had often sent him referrals. Malan and other activists in the wine country were concerned about vineyard development in the hills and wanted to know if it could be halted, and Lippe drove up to talk to her.
He found Malan both personable and well informed. Lippe didn’t drink wine and knew nothing about it or vineyards, and he couldn’t digest all the information on the spot. But it certainly seemed to him that the county had big legal problems, and that there might be work for him. For one thing, the visual evidence was compelling. “Look what’s happening up there,” he said of the patchwork development.
He thought Napa Valley representative of other places in the United States where success had come down to money versus the environment. Many projects in the hills had been approved piecemeal, allowing developers to assemble big vineyards by doing them as a succession of smaller projects and avoiding more rigorous review. And there was the problem of enforcement—projects uninspected, violations unpunished, wrongdoers unrepentant. No one seemed to be looking at the possible effect of all this on the overall environment, or what would happen if it continued—the effects on wildlife and the river.
Here was a cautionary tale, he thought: do something destructive to the land and try to fix it with technology, and you create other problems as unintended consequences. During storms, underground drainage delivers water too quickly for the river to handle, for instance. Developed hillsides erode. Rocks roll. Species suffer.
Lots of laws applied, at least theoretically. One of these was the Endangered Species Act, savior of old growth—and of the northern spotted owl—and bane of the timber industry. It was a strong law but had its weaknesses, including the need to prove a “taking”—death or injury of an endangered creature as a direct result of activity by human beings. Proving this required a lot of field work by scientists and was very expensive (a million dollars just to get into federal court nowadays).
San Pablo Bay was listed by the Environmental Protection Agency as impaired, and so consequently was the Napa River, a major tributary to the bay. The steelhead in the river were officially threatened, so that was a clear opportunity. And there were a few spotted owls in old growth above the west side of the valley.
But there was a better, cheaper, more immediate way, the best card in any potential plaintiff’s hand: the California Environmental Quality Act. Known all over the state, either reverentially or contemptuously, as CEQA, the law stated that any project affecting the environment, if it involved “discretionary” decisions by local officials on the specifics, had to be first opened to public comment. The other sort of decision, “ministerial,” was for more standard projects and unsuited to those in Napa County because of the variety of the projects themselves and the terrain. Virtually all vineyard development in the hills involved discretionary approval, and to date there had been no public comment on erosion control plans.
Lippe asked Chris for her documentation relating to new vineyards, acquired some erosion control plans from the county planning department, and reviewed it all. He was “dumbfounded,” he later said, to discover that the plans were apparently illegal. “There’s evidence all over them that the county was exercising discretion.”
By that he meant that the planning department had approved projects on their merits without giving the public a chance to weigh in, as required. The irony was that if Napa had not passed a good hillside ordinance requiring certain safeguards and review, all the projects could have been treated as ministerial, rubber-stamped, and exempted. It was the provisions of Napa’s hillside ordinance, more stringent than in the rest of California, passed years before and requiring erosion control plans, that had opened Napa up to such potential litigation. From the time the ordinance was passed, Napa County should have been complying with the California Environmental Quality Act, and it wasn’t.
If the county thought that its already strong hillside ordinance rendered public review unnecessary, Lippe thought, the county was wrong. Even if there was more environmental protection in Napa because of the hillside ordinance than “elsewhere, the requirements of CEQA still applied.
There also existed the possibility of suing individual property owners. If vineyards had been planted in the hills without environmental impact reports, then those same vineyard owners were presumably as liable as the county was.
There were plenty of owners to choose from, including vineyards developed in the last few months with nothing more than a declaration from the authorities that they would have no negative impact on the environment. They belonged to all kinds of people, from big boys like Beringer to little start-ups nobody ever heard of to cult producers like Jayson Pahlmeyer. You could almost throw a dart.
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(from The Far Side of Eden)
Tom Lippe grew up in faraway Florida but went to law school at Stanford University and spent his free time in the Sierra Nevada. He naturally gravitated toward environmental issues and “social betterment”—his phrase—and by the time he graduated knew he wanted to practice in the public interest. Environmental litigation would be his niche.
In the eighties in northern California that meant the timber wars. Protecting old growth was the emblematic regional struggle, and Lippe represented the Sierra Club and another organization up in Humboldt County against Pacific Lumber, with some success. Along the way he got to know the leadership of the club in San Francisco, where its headquarters was located. He later opened an office just blocks away from the Sierra Club’s utilitarian digs in the Mission District.
“He now shared a suite with a financial consulting firm in an Embarcadero skyscraper but kept his hair long; he wore open shirts and sport jackets, and rarely talked about strategy. “Litigation is like poker,” he would say. “You don’t say what cards you had in the last hand” once your opponent folds. And you don’t waste a lot of time on sentiment.
In 1998, he got a call from a woman in Napa Valley named Chris Malan. He wasn’t surprised to learn that she had heard of him through the Sierra Club; it had often sent him referrals. Malan and other activists in the wine country were concerned about vineyard development in the hills and wanted to know if it could be halted, and Lippe drove up to talk to her.
He found Malan both personable and well informed. Lippe didn’t drink wine and knew nothing about it or vineyards, and he couldn’t digest all the information on the spot. But it certainly seemed to him that the county had big legal problems, and that there might be work for him. For one thing, the visual evidence was compelling. “Look what’s happening up there,” he said of the patchwork development.
He thought Napa Valley representative of other places in the United States where success had come down to money versus the environment. Many projects in the hills had been approved piecemeal, allowing developers to assemble big vineyards by doing them as a succession of smaller projects and avoiding more rigorous review. And there was the problem of enforcement—projects uninspected, violations unpunished, wrongdoers unrepentant. No one seemed to be looking at the possible effect of all this on the overall environment, or what would happen if it continued—the effects on wildlife and the river.
Here was a cautionary tale, he thought: do something destructive to the land and try to fix it with technology, and you create other problems as unintended consequences. During storms, underground drainage delivers water too quickly for the river to handle, for instance. Developed hillsides erode. Rocks roll. Species suffer.
Lots of laws applied, at least theoretically. One of these was the Endangered Species Act, savior of old growth—and of the northern spotted owl—and bane of the timber industry. It was a strong law but had its weaknesses, including the need to prove a “taking”—death or injury of an endangered creature as a direct result of activity by human beings. Proving this required a lot of field work by scientists and was very expensive (a million dollars just to get into federal court nowadays).
San Pablo Bay was listed by the Environmental Protection Agency as impaired, and so consequently was the Napa River, a major tributary to the bay. The steelhead in the river were officially threatened, so that was a clear opportunity. And there were a few spotted owls in old growth above the west side of the valley.
But there was a better, cheaper, more immediate way, the best card in any potential plaintiff’s hand: the California Environmental Quality Act. Known all over the state, either reverentially or contemptuously, as CEQA, the law stated that any project affecting the environment, if it involved “discretionary” decisions by local officials on the specifics, had to be first opened to public comment. The other sort of decision, “ministerial,” was for more standard projects and unsuited to those in Napa County because of the variety of the projects themselves and the terrain. Virtually all vineyard development in the hills involved discretionary approval, and to date there had been no public comment on erosion control plans.
Lippe asked Chris for her documentation relating to new vineyards, acquired some erosion control plans from the county planning department, and reviewed it all. He was “dumbfounded,” he later said, to discover that the plans were apparently illegal. “There’s evidence all over them that the county was exercising discretion.”
By that he meant that the planning department had approved projects on their merits without giving the public a chance to weigh in, as required. The irony was that if Napa had not passed a good hillside ordinance requiring certain safeguards and review, all the projects could have been treated as ministerial, rubber-stamped, and exempted. It was the provisions of Napa’s hillside ordinance, more stringent than in the rest of California, passed years before and requiring erosion control plans, that had opened Napa up to such potential litigation. From the time the ordinance was passed, Napa County should have been complying with the California Environmental Quality Act, and it wasn’t.
If the county thought that its already strong hillside ordinance rendered public review unnecessary, Lippe thought, the county was wrong. Even if there was more environmental protection in Napa because of the hillside ordinance than “elsewhere, the requirements of CEQA still applied.
There also existed the possibility of suing individual property owners. If vineyards had been planted in the hills without environmental impact reports, then those same vineyard owners were presumably as liable as the county was.
There were plenty of owners to choose from, including vineyards developed in the last few months with nothing more than a declaration from the authorities that they would have no negative impact on the environment. They belonged to all kinds of people, from big boys like Beringer to little start-ups nobody ever heard of to cult producers like Jayson Pahlmeyer. You could almost throw a dart.
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