October 20, 2012
UCLA / UC Berkeley Symposium - Saving Public Transit
UCLA Law and UC Berkeley Law have announced an upcoming symposium they will hold on Friday, November 2, 2012 from 9 a.m. until 4:30 p.m. in Los Angeles on the subject "Saving Public Transit." The announcement describes the symposium thus:
"Public transit in California and the nation-including the shuttles, buses, and passenger rail that serve our communities-has been battered by recession and dwindling public sector budgets. At the same time, ridership in many areas has spiked. This conference will highlight the challenges facing transit and explore solutions to overcome them and develop a world-class transit system. Art Leahy, Chief Executive Officer of the Los Angeles Metro, will be the keynote speaker."
Third Annual Environmental Law and Justice Symposium @ FAMU
Florida A&M law school has announced its Third Annual Environmental Law and Justice Symposium, which will be held in Tallahassee on November 1-3, 2012. The symposium theme is “Climate Change and Global Food Security.”
The symposium program is available here.
October 19, 2012
Univ. of Utah Free Screening - Energy Documentary "Switch"
This coming Monday, October 22, 2012 at 7 p.m., the University of Utah College of Engineering and the Energy & Geoscience Institute are hosting a free screening of the new, award-winning energy documentary, Switch.
The screening will take place at the University of Utah Marriott Library Gould Auditorium. Although the screening is free, registration is requested.
The film is described as delivering "straight answers to today’s most controversial energy questions, as energy visionary Dr. Scott Tinker travels the world, exploring leading energy sites, from coal to solar, oil to biofuels, most of them highly restricted and never before seen on film. He seeks the truth from international leaders of government, industry and academia, then cuts through the confusion to discover a path to our energy future as surprising as it is practical. As no documentary before it, SWITCH has been embraced and supported by people across the energy spectrum: environmentalists and academics, fossil and renewable energy experts, scientists and economists."
A short discussion will follow the screening.
October 18, 2012
More on Categorical Rules in Takings Law
Earlier this week, Dave Owen authored a thought-provoking post on this blog suggesting that recent activity surrounding the Takings Clause at the U.S. Supreme Court may reflect the Justices’ discomfort with categorical rules. I thought I might add a slightly different and, sadly, far less optimistic perspective.
Professor Owen's post honed in on one of the more significant tensions in takings jurisprudence: “the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.” He noted the traditional perception that “the anti-regulatory agenda and the clarity agenda” often are aligned, yet suggests that the Supreme Court’s recent steps into the takings morass might not necessarily fit within that perception.
The Roberts Court has decided one takings case (Stop the Beach Renourishment v. Florida Department of Environmental Protection) and two others are pending this term (Arkansas Game & Fish Commission v. United States and Koontz v. St. Johns River Watershed Management District). It is at least arguable that an anti-regulatory sentiment and categorical rules figure prominently in all three.
It is true that Justice Scalia’s plurality opinion in Stop the Beach rejected a categorical rule against the theory of “judicial takings;” however, in lieu thereof, the judicial takings test set forth in that opinion—that a judicial decision declaring that an “established” property right “no longer exists” implicates takings protections—could itself be considered a categorical rule. Justice Scalia’s test could be interpreted to extend the reach of judicial takings to include every judicial change to any previously declared property principle. The per se quality of the plurality’s standard in Stop the Beach—in the words of Justice Scalia, its “definiteness”—is reminiscent of the Court’s prior holdings that regulations that result in physical invasions or total economic wipeouts categorically amount to takings. Indeed, it is the bright-line nature of the Stop the Beach plurality’s test that has led several takings scholars to predict that Justice Scalia will have grave difficulty in garnering a fifth vote for his vision of a judicial takings doctrine in the future.
In an interesting side note, as reported here, Justice Stevens recently explained his recusal in Stop the Beach in a speech at Chicago-Kent College of Law. Though he stepped aside given that his wife owned waterfront property in Florida, Justice Stevens suggested that, had he participated in the case, he first would have “tried to persuade [his] colleagues to dismiss the case as having been improvidently granted review, because there was no justification for using it as a vehicle for discussing the subject of judicial takings.” He went on to say that he would have refused to join Justice Scalia’s “advisory opinion” because: (1) if any taking occurred, it was not committed by a court; (2) federal review of state court decisions altering existing rules is grounded in the Due Process Clause, not the Takings Clause; and (3) he was “sure Justice Brandeis would not have joined" Justice Scalia’s opinion.
With respect to Arkansas Game & Fish Commission, there arguably is precedent suggesting the categorical imperative that temporary flooding resulting from the government’s operation of a dam cannot serve as the basis for a takings claim. Yet the claimants advocate for a different categorical rule, one suggesting that temporary permanent invasions of land amount to per se takings. When the cert petition was granted, Richard Frank (U.C. Davis) predicted on the Legal Planet blog that “the Court will likely wind up ruling in favor of Arkansas and against the federal government, finding that even non-permanent physical invasions of property are compensable under the Fifth Amendment.” And as I noted here, commentators on both sides of the takings divide echoed this position after the oral argument earlier this month (though I, admittedly, was not as convinced that the federal government got the short end of the stick at oral argument).
As for Koontz, the Court is slated to review two issues. On the first, a considerable majority of the many state and lower federal courts that have addressed whether monetary exactions are subject to the strictures of the Nollan and Dolan tests have answered in the negative. If this is considered a categorical rule, its converse—that monetary exactions are subject to Nollan and Dolan—would seem to be, as well.
In those jurisdictions where monetary exactions are not subjected to Nollan and Dolan scrutiny, those exactions are regularly subjected to the ad hoc analysis set forth in Penn Central. But the second issue in Koontz is different in this regard: the Florida Supreme Court arguably held that exactions that are proposed but later refused or withdrawn can never be challenged as takings under any test. The U.S. Supreme Court’s abandoning this categorical rule seemingly would depart from the traditional perception that Professor Owen so readily identified, in the sense that eschewing the categorical rule would promote the anti-regulatory agenda at the expense of clarity.
October 17, 2012
A Plea for Environmental Programs to Stop Sending Paper Brochures
I have been slowly but surely cleaning out my office the last couple of months as part of a broader effort at more functional patterns. Sadly, most of my cleaning has consisted of recycling piles of law spam that made it into my office and never got sorted. The spam at times made me miss meaningful communication and was just a depressing waste. I have instituted a new rule that no pile makes it from the mail room to my office without my going through it to recycle spam.
In that context, I have been particulary saddened to get a number of paper brochures just this past week from leading environmental programs. I promptly recycled them and it lowered rather than raised my opinion of those programs. As we've moved to electronic announcements towards the list, some leading programs have moved towards only sending email updates. I've been trying to send emails acknowledging those updates so that those programs know that they can actually reach people this way. At Minnesota, we are aiming to go electronic in our communications with you and I'll be in touch soon with our latest. But it should be all of us, as we try to convince our colleagues outside of this field to limit the brochures as well. So please, environmental law programs, stop wasting paper and adding to the spam of this time of year.
October 15, 2012
Takings, the Supreme Court, and the Demise (Maybe) of Categorical Rules
The United States Supreme Court recently granted cert in Koontz v. St. Johns River Watershed Management District, a takings case involving wetlands and exactions. The case already has received quite a lot of attention on blogs and elsewhere (see, e.g., here, here, and here, as well as Tim Mulvaney's previous posts on this blog) and I have only one small, and perhaps somewhat obvious, point to add.
For years, the Court’s takings decisions have sought to resolve a few tensions. One—probably the most important one—pits our desire to protect private property owners from regulatory control against our desire to let government protect society (including other property owners) from problematic uses of property. But another prominent tension has been between the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.
Lawyers who think about takings have grown accustomed to perceiving the anti-regulatory agenda and the clarity agenda as aligned. That’s most prominently a product of Justice Scalia’s opinion in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), which many commentators viewed as an effort to provide property owners with predictable anti-regulatory protection through the creation of a categorical legal test. That alignment has manifested itself in other contexts as well. The one I’m most familiar with is the intersection of takings doctrine and water rights, where takings plaintiffs and advocacy firms have sought, largely but not entirely unsuccessfully, to convince courts that the categorical physical takings test ought to apply to regulatory restrictions on water rights. Conversely, some advocates of a more government-friendly takings doctrine have argued that the ad-hoc Penn Central takings test has much to offer.
The last few years, however, have produced a few cases that don’t fit with that traditional perception. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, one key question was whether a so-called “judicial taking” is possible. Justice Scalia’s plurality opinion endorsed the idea that judicial takings could exist, thus rejecting a potentially clear and categorical rule against judicial takings. Last week, the Court heard oral argument in Arkansas Game & Fish Commission v. United States. The case arose because management of a federal water project allegedly caused extensive and damaging, but also temporary, flooding of state land. Prior decisions seemed to endorse a categorical rule that such flooding couldn’t be the basis for a takings claim—the remedies instead lie in tort law—but at oral argument, the conservative justices seemed skeptical of that rule. Finally, in Koontz, one key issue is whether a monetary exaction can be categorically excluded from the Dollan exaction test (the other key question is whether a “failed exaction”—that is, and exaction that is proposed but never imposed—can form the basis of a takings claim). While no one outside the Court knows exactly why the Court granted cert, one reasonable hypothesis is that some of the justices are troubled by that categorical rule as well.
So does that mean that the conservative justices have discovered a new love for ad-hoc standards, and have lost their interest in categorical rules? Probably not. First, one plurality decision, an oral argument transcript, and a cert grant don’t exactly add up to a trend (and if it was a trend, it wouldn’t be entirely new; the Court’s First English decision, which rejected a categorical rule against temporary regulatory takings, was to similar effect). Second, the justices may just care a whole lot more about regulatory intensity than they do about legal predictability. Categorical rules and ad hoc analyses, then, are primarily tools to be deployed in a larger struggle, not independent ends.
October 14, 2012
In Case You Missed It: Week of October 7-13
Here's a good overview of Romney’s environmental positions (anti-Clean Air Act, pro-Keystone XL, anti-fuel efficiency, and pro-oil and gas exploration) and various barriers that would (hopefully) prevent him from doing what he says he would do.
Oil that may be from BP’s Macondo well showed up again in Gulf waters.
Department of Interior is fast tracking renewable energy development on public lands in the West. On Tuesday, it announced that over 10,000 megawatts (MW) of renewable power have been authorised on public lands. On Friday, it finalized a Programmatic Environmental Impact Statement (PEIS) for a plan regarding utility-scale solar energy permitting in Arizona, California, Colorado, Nevada, New Mexico and Utah.
Deforestation spiked in Brazil in August, prompting the Brazilian federal government to announce the establishment of a new, special environmental security force.
A new poll from George Mason University and Yale’s Project on Climate Change Communication found that a large and growing majority of Americans say “global warming is affecting weather in the United States” (74%, up 5 points since our last national survey in March 2012).