by Art Macomber

COEUR D’ALENE, Idaho – December 19, 2014. The United States Supreme Court on joint motion of the United States and the State of California issued its sixth Supplemental Decree since 1947 related to the submerged lands boundary between the jurisdiction of that State and the United States “addressing the entitlement of the United States and the State of California to lands, minerals, and other natural resources underlying the Pacific Ocean offshore of California.” U.S. v. California, 5th Supp. Decree (Dec. 15, 2014). The full decision is available here, although pages 3 through 111 consist wholly of listed X- and Y-coordinates on the Universal Transverse Mercator (UTM) system that are referenced to the North American Datum 1983 (NAD 83) designating a line parallel to the California coastline. The last page of the decision is a very nice map outlining the new jurisdictional boundary of those two sovereigns.

The decision clarifies the rights of those parties related to the submerged lands demarked by it, to wit: “the State of California is entitled to all lands, minerals, and other natural resources underlying the Pacific Ocean, bounded on the south by the international boundary with the United Mexican States and on the north by the boundary between the States of California and Oregon and an extension thereof, that lie landward of the [line designated by the listed coordinates].” The United States is “entitled to all lands, minerals, and other natural resources underlying the Pacific Ocean, bounded on the south by the international boundary with the United Mexican States and on the north by the boundary between the States of California and Oregon and an extension thereof, that lie seaward of the [line designated by the listed coordinates].” Presumably, this decision means they are not only entitled to them as a matter of ownership, but entitled to them for purposes of actual use.

Macomber Law is happy when parties work out their disputes, and even though the decision’s language uses the words “as against” the other party in demarking the boundary, this is the first we have become aware of the need for those sovereigns to enter the hallowed halls of the third branch to address this problem. It will be interesting to see if the Decree triggers increased numbers of newly issued permits for private parties to explore and develop the minerals and natural resources now defined to be under the control of one or the other sovereign. Macomber Law has its doubts.

The State of California is committed to “reducing greenhouse gas (GHG) emissions to 80% below 1990 levels by 2050 as required by [Governor Brown’s] Executive Order S-3-05 (2005).” Report on Calif. Energy Future, Calif. Council on Science and Technology, May 2011, p. 1. This reduction is required by California law even though “California’s population is expected to grow from the 2005 level of 37 million to 55 million” by 2050, and California “will need roughly twice as much energy in 2050” as it used in 2011. Id. This doubling of energy consumption will not happen without nuclear power. However, even so-called Generation III nuclear power plants using today’s commercially available technologies would require California “build approximately one new [nuclear] power plant a year from 2020 to 2050 in order to provide 67% of California’s expected 2050 baseload electricity demands,” and those thirty nuclear power plants cannot be built because “[n]ew nuclear power is currently banned in California until a geologic disposal facility for nuclear wastes is licensed by the federal government.” Id. at 18. Therefore, the demarcation of the submerged lands boundary appears to be very important to California’s energy plans, because now it can access offshore energy resources to address its long term needs.

Unfortunately, to even reach a 60% reduction in greenhouse gas emissions from 1990 levels by 2050 will require California government mandate “(1) aggressive efficiency measures for buildings, industry and transportation, [ ] (2) aggressive electrification, to avoid fossil fuel use wherever technically feasible, (3) complete de-carbonization of the electricity supply while at the same time roughly doubling electricity production, [ ] and (4) de-carbonizing the remaining required fuel supply wherever electrification is not feasible.” Id. at 44. The California Council on Science and Technology makes this recommendation for a wholesale suppression of individual liberty using that monopoly State power even though the California Energy Commission estimated 33% of that State’s 2013 total electrical system power usage of 296,628 GWh (GWh = 3.41 billion BTU) was generated outside California. CEC Report (9/25/14).

Does California really have the sovereign power to reach across State lines to force compliance with its GHG reduction and de-carbonization schedule, or will it attempt to politically obtain it?

If California can’t go nuclear, and one-third of its electric power comes from out of State, what are the odds its economy and the carefully husbanded financial resources of private entities in that State will generate the money to generate the power to meet those regulatory mandates? Further, what political controls will California request or demand the federal government mandate the other States and their citizens accede to in order for the Golden State to meet its environmental goals? The boundary dispute Supplemental Decree literally draws a line in the sand for California. The question is whether that State will continue to build centrally planned castles in the air, or whether it will dig into those submerged sands to build its own energy future based on  the “minerals, and other natural resources” it actually has inside its own now-clarified borders. ~