Land Use Prof Blog

A response from Bill Fischel on school district consolidation, and a query on why special districts continue to fascinate scholars

I was delighted over the weekend to see a response from Bill Fischel (Dartmouth) on my blog post series about local government units.  Bill is undoubtedly well known to many readers of this blog for his work on land use and local government, such as The Homevoter Hypothesis.  Because I find our blog software tends to hide comments, I thought I’d re-post Bill’s comment in italics and then respond.  Here is Bill’s comment on my earlier post:

Stephen, as I show in my 2009 book, Making the Grade, almost all of the decline in school district numbers comes from consolidation of rural, mostly one-room schools, into larger districts. The one-room school statistically disappeared in 1972, and the number of school districts has held steady since then, with very little change in the number of urban and suburban districts. In terms of the districts that serve most of the population, their borders have been remarkably stable for about 70 years.

Special districts are another matter. They have increased, but I remain puzzled as to why they occupy scholars' attention as much as they do. Almost all of them do only one thing, have no general police powers, and tax only those they serve, mostly in proportion to benefits. The major exceptions are western water districts, whose main curiosity is their Court-permitted deviation from popular voting standards.
Bill

Unbeknownst to Bill, I had meant to mention his book, Making the Grade, in a post some time this week because that work had been recommended to me in conversations I had with folks at the U.S. Census, Joseph Dalaker and Liz Accetta, on this subject.  Joe and Liz also pointed me to this excellent presentation Bill did on Making the Grade, which I just watched and would highly recommend:

 

It seemed that this series of posts has generated some interest, and so I decided to go back through the Census data and try to find a way to elegantly portray the data underlying what Bill talks about in his comment.  To that end, I have excerpted Census tables on special districts and school districts from the data source I provided earlier.  Folks who review the data tables at the end of this post (click on tables to enlarge) will find Bill’s assertions above well supported.

That leaves the question Bill has identified in the second part of his comment:  why are scholars so obsessed with special districts? Moreover, are scholars rightfully obsessed with them?  I have several ideas on the subject I will post later in the week.  In the meantime, I thought I’d see if Bill’s comment, and the addition of this data to the discussion, will engender comments before I take my crack at it.

And thanks, Bill, for taking the time to write! 

Stephen R. Miller

 

 

Edwards on the Paradoxes of Restitution

Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review.  The abstract:

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.

Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.

After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution. 

Matt Festa

Stern on State Legislative Checks and Judicial Takings

Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review.  The abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Matt Festa

Solving last week’s local government decentralization riddle: school districts massively consolidated, special districts exploded, and counties and city governments stayed about the same

Last week I posted about some curious U.S. Census data I found that appeared to indicate that the number of local government units had shrunk by 42 percent since 1942, a trend that would seemingly buck conventional beliefs that local governments had, in fact, radically decentralized in the post-World War II era.

I couldn’t let this go, and this week contacted several researchers at the U.S. Census who gave some color to the data.  I thought I would pass along several aspects of what we discussed because it is not readily available on the Census website (or, at least, to someone like me who couldn’t otherwise find it).  Key points: 

--The aggregate numbers of local government units do, in fact, show a decrease in the number of local government units since 1942.

--However, the overall numbers are skewed by the dramatic centralization of one very particular type of local government unit:  the school district.  For instance, in 1942, there were 108,579 school districts but by 2007 (2012 data in this set is being released in the fall) there were just 13,051 school districts in the U.S.  For this data set, there are also numbers for 1932, in which there were 128,548 school districts.  That means we have just over 10% of the school districts in 2007 that we had in 1932 and with about three times the population.  Wow. 

--If you remove school districts from the data, it turns out that the conventional wisdom is right about special districts.  In 1942 there were just 8,299 special districts while in 2007 there were 37,381 special districts.  Wow…and in line with the narrative I typically tell students about proliferation of local governments.

--The number of city and county governments in the U.S. has largely held steady since the 1940s, though with regional variation.

This is really fun data to review.  For those who want to learn more, the data is available here.  Download file “1-3_Govt_Org_Nat_CoArea_ElecOff-1.zip”.  Open file “1_Govt_Org_Nat_State_Counts”.  Click on the “Table 3” and “Table 4” tabs to review data in this blog post.  Unfortunately, the tables are too large to be reproduced meaningfully as a jpeg on this blog, so you’ll have to go to the source if you’d like to see the detailed numbers.

A big thank you to the great folks at the U.S. Census, Joseph Dalaker and Liz Accetta, who provided amazing research assistance and helped me solve this riddle in just a few short days!

Stephen R. Miller

Professors' Corner May 8--Commercial Leasing

As many of you know, the ABA hosts a free "Professors' Corner" teleconference each month, where we have the chance to discuss recent cases and hot topics with scholars and practitioners.  Courtesy of Julie Forrester, here is the info on this month's discussion, which focuses on commercial leasing:

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Real Estate Transactions Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, May 8, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program, moderated by Professor Jim Durham of the University of Dayton School of Law, features a roundtable on Commercial Leasing.  Our two featured speakers will be Professors Celeste Hammond and Professor Daniel B. Bogart, who are co-authors of Commercial Leasing: A Transactional Primer, now in its Second Edition and published by Carolina Academic Press.

Professor Hammond is a Professor of Law and the Director of the Center for Real Estate Law at the John Marshall Law School in Chicago.  Professor Hammond will be discussing “Green” issues in commercial leasing and the implications of this “greening” for landlords, tenants, and their attorneys.  Here is a copy (for your download and preview) of a Powerpoint presentation that will accompany Professor Hammond’s comments:  http://law.missouri.edu/freyermuth/hammondgreenleasing.pptx

Professor Bogart is the Daniel and Marjorie Bollinger Chair in Real Estate Law at Chapman University School of Law, where he serves as both the Associate Dean for Academic Affairs and as the Director of the Center for Land Resources.  Professor Bogart will be discussing some recent leasing decisions of note, including (click on the link for a copy of each decision):

J-Star Holdings, LLC v. The Pantry (Tenn. Ct. App. January 2013) (whether a commercial lease agreement requires the tenant to pay excise taxes imposed on the landlord):  http://www.tncourts.gov/sites/default/files/j-star_opn.pdf

Maida Vale, Inc. v. Abbey Road Plaza Corp., 96 So.3d 1027 (Fla. Ct. App. 2012) (whether a tenant who withheld payment of disputed CAM charges may be evicted for nonpayment of rent): http://www.4dca.org/opinions/August%202012/08-22-12/4D10-2203.op.pdf

Fairfax Portfolio, LLC v. Owens Corning Insulating Systems, 2013 WL 440726 (10th Cir. 2013) (whether a tenant that surrendered the premises without repairing significant property damage as required by the lease can be deemed to have held over while landlord effects repairs so as to permit landlord to collect rent during that period):  http://scholar.google.com/scholar_case?case=16297268405506062242&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Matt Festa

Could it be that American local governments are actually more centralized than they were a generation ago?

When I teach State & Local Government Law, one of the narratives of the course is jurisdictional fragmentation—what scholars call “decentralization”—of local governmental authority.  To support this claim, I like to bring out the U.S. Census data on local governments, which tells us that, in 2012 there were 89,055 units of local government in the U.S.  Mouths gape at the number, and my point is made.

This week, however, I had reason to go back and look at some of the historic data on local government units.  To my surprise, it turns out that, over the past seventy years, the number of local governmental units in the U.S. has actually decreased...dramatically!  In 1942, there were 155,116 local government units in the U.S., which means that 66,061 units of local government, or 42 percent, of local government units in place in 1942, have disappeared in the last 70 years!  (Click on image to see full data table, or click here for U.S. Census site.)

I find these numbers staggering, and I don’t know what to make of them.  My presumption is that a lot of the lost local government units were hyper-specialized special use districts of one type or another; for instance, maybe there were five mosquito abatement districts in some rural western county, but now there is just one mega-mosquito abatement district.  But I wonder, what was a state like Minnesota doing with 10,398 local government units in 1942 where it has just 3,634 local government units in 2012?  I plan to dig into this over the next couple months but, in the meantime, I thought I’d crowdsource it and see if anyone out there has a thought as to what this is all about.  And, moreover, does it mean that I need to revise the narrative I tell about fragmentation of American local governments?  Is the trend, in fact, toward more centralized power of local governmental units?

Stephen R. Miller

How to Manage Smart Decline: Should We Demolish Vacant Buildings?

 

I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.

While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.

Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.

Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)

ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.

Jessie Owley

Land Use Prof bloggers unite!

The five current Land Use Prof bloggers were in Minneapolis this weekend for the ALPS conference.  A photo was taken to commemmorate this rare event, reproduced for our faithful readership below:

From left-to-right:  Ken Stahl, Jim Kelly, Matt Festa, Jessie Owley, and Stephen Miller.

A big kudos to Jessie Owley for live-blogging ALPS.  I, personally, was live-hacking my way through the event with the remnants of a cold, but had a great time meeting everyone and getting to hear a lot of great work on land use that will undoubtedly be featured on this blog in the months ahead.

Stephen R. Miller

Climate and Land Use Program Officer position - David and Lucile Packard Foundation

I saw a post today for a Climate and Land Use Program Officer position at the David and Lucile Packard Foundation that I thought might be of interest to some readers.  More details here. 

Stephen R. Miller

Call For Papers: Green Urban Infrastructure and Climate Adaptation

The Journal of Landscape and Urban Planning has announced a call for papers for a special issue. Abstracts are due May 10th with papers to follow at a later date.

Description is below with details on their website.

The ‘green city’ with high-quality and generous vegetation is an ideal with universal appeal that transcends temporal, spatial and cultural divides. Vegetated sites, including street trees, green alleys, greenways, green roofs, urban parks and informal green spaces enhance the liveability of cities by improving landscape and environmental quality, quality of life, and citizen health. Green infrastructural development has been driven by changes in local demand and urban form over time.

Global climate change poses new challenges to the planning and management of urban green infrastructure. Scientists anticipate warmer average temperatures and intensified storms and extreme weather conditions in the decades ahead. The urban heat island effect will increase the intensity and frequency of global warming impacts. Coupled with increasingly variable precipitation and gradual sea level rises, climate change is expected to bring significant impacts to urban populations, particularly medium-high  density coastal cities.

Green infrastructure constitutes a local response to the most pressing global challenge in our times. Urban greenery can potentially shield cities against adverse effects of climate change. By harnessing and blending natural processes with infrastructural development, green infrastructure can help moderate natural hazards, regulate water balance, and alleviate heat stress. Recent research has confirmed that green infrastructure should be systematically integrated into urban climate change adaptation responses. But our knowledge of green infrastructure has not been systematically assessed, and our conceptual frameworks for advancing green infrastructure as a climate change response are presently weak. Further consolidation of knowledge could achieve a higher degree of intellectual coherence, which will be conducive to building closer linkages to global discourses and practices, potentially reaching a wider institutional audience.

The aim of the Special Issue is to solicit and integrate new research findings in an effort to advance a coherent and conceptually rigorous framework of knowledge about green infrastructure. Papers are sought that critically examine the role of urban green infrastructure in response to climate change impacts. Papers must provide evidence of, and insights into, the prospects for using green infrastructure to enhance urban adaptability. The Special Issue pursues broad geographical representation, but priority is given to case studies of densely populated coastal cities. Empirical reports are encouraged, although high-quality perspective essays are also welcome. Contributions from multiple disciplines are invited. Papers are expected to address institutional concerns, apply scientific findings to formulate policy recommendations, and adopt an international perspective.

Jessie Owley

Live Blogging ALPS: Session V (The Evolution of Takings)

Day two of ALPS is starting off with a bang. It was pretty hard to choose among panels this morning, but I just can't resist a discussion of takings.

Steve Eagle of George Mason presented The Ptolemaic Evolution of Penn Central. I loved his likening of Penn Central and its progeny to Ptolemy's increasingly complicated theories to explain retrograde planets orbiting the Earth. He demonstrated that the Penn Central test is more complicated than most people describe it. He argues that it should be considered a 4-factor test. He plans two papers on this subject.

Alex Klass of Minnesota presented Takings and Transmission. She examined the eminent domain authority being exercised by private utilities, particularly for expansion of wind energy and the associated transmission lines. This talk is based on a paper forthcoming in North Carolina Law Review.

Sally Richardson of Tulane presented Adverse Possession, an Ex-Ante Perspective. Sally began by remarking that it is a right of passage for property professors to write about Adverse Possession because frankly it is just such a weird and fascinating doctrine where we let "wrongdoers" win. While most writings seek to justify Adverse Possession, she questions the possession requirement of adverse possession and suggests allowing people to register their intent to adversely possession a piece of property. This is an early work in progress that promises to be a fun read.

Chris Serkin of Brooklyn (soon to be Vanderbilt) presented Passive Takings: Government Inaction and the Duty to Protect Property. The title should be enough to peak your interest. In this early work in progress, he suggests that where the state has a duty to act it can't avoid takings litigation by failing to act. This is of course interesting in the context of climate change. Governments at all level have expressed hesitation about enacting climate change adaptation policies for fear of takings claims. Chris argues that in some cases, the governments' decision not to take action should be equally subject to scrutiny.

Fun Stuff!

Jessie Owley

Live Blogging ALPS: Session III (Constrains on and Structures for Land Use, Sale, and Development)

With so many sessions going on simultaneously, I don't always get to see my co-bloggers present their work. BUT I was lucky enough to hear about Matt Festa's current project as well as listen to a couple of talks on my well known obsession, conservation easements.

Festa presented a work in progress that he is calling "Property Rights and the Pulic Trust." I have two public trust doctrine projects sitting on my shelf so it is an area that I have been thinking about a lot. I love Matt's project, which examines the Severance v. Patterson case in Texas and legislative responses to it. He ponders the legality of the proposed legislative response that would expand the land considered to be covered by the public trust doctrine in Texas. Can't wait to see how this develops.

Douglas Harris from UBC presented "Title Registration, the Distribution of Risk, and the Abolition of Notice." I have been intrigued by issues of notice associated with servitudes and always have fun with this topic when teaching property law (yep, my class is a hoot). Douglas Harris explained to us how the rules requiring notice. Essentially, the movement is away from a doctrine of notice and toward rules simply requiring registration of title. Exceptions remain for fraud usually. He presents a compelling story about the Land Title Act in British Columbia leaving folks there in a confusing state about whether notice requirements co-exist with the land titling act. Generally, these ideas connext to issues relating to land recordation system. I often hear folks argue that we can do with some of our common law constraints on property because our land recording systems are so much better these days. Frankly, I get nervous when people say that because land recording is still rife with errors (particularly with recordation of conservation easements and other servitudes).

Gerald Korngold (whom I was delighted to finally meet in person) presented "Governmental Conservation Easements: Balancing Perpetuity with Democracy." Gerry is looking at governement conservation easements, by which he means conservation easements held by governement agencies. He asserts that these conservation easements have some benefits over those held by land trusts. I eagerly await his forthcoming article on this topic. I think alot of government conservation easmeents but I generally think of those as conservation easements that are created under governement programs. I haven't quite wrapped my head around the difference that emerge solely based on who is the holder. I can see a good case for asserting better transparency and accountability though!

Nancy McLaughlin of Utah presented "Perpetual Conservation Easements: Contemporary Issues and Challanges."Although she spoke last, she won the contest for most interesting powerpoint (a good strategy for a 4pm talk). Nancy focused on donated conservation easement and tax law. Although not a tax prof, we property and land use folks warmly welcome her presence and often highlight her research. She showed some shocking numbers in terms of the generous level of tax deductions landowners are getting and a huge number of challenges coming through the tax courts.

Jessie Owley

 

Live Blogging ALPS: Carol Rose on Property Futures

The Association of Law, Property, and Society has presented its annual award to Carol Rose. She is being recognized for both her scholarship and her mentorship -- two areas where she has unquestionably excelled. Like many property and land use scholars, my own work and teaching has been influenced by her writings.

At her lunchtime talk today, she explored the dignatory aspects of property. A few interesting thoughts:

• Homeownership is all about taking risks and maybe we should be rethinking the value of home ownership. (See her new book: Saving the Neighborhood).
• Ideas of dignity are connected to preserving a location of undisturbed freedom where others cannot intrude
• Land titling programs are redstribution of wealth policies, but some of the goals of the land titling policies may not materialize becuase squatters' rights and connections to their homes are different than other type of homeownership (even if you give them title). Rose suggests there may be better programs for redistribution if that is the real goal.
• Property rights are growing but facing pushback. Many examples in the IP realm with patenting life (animals, genes, etc.) and copyright of creative work. But some folks argue that these strong IP rights actually stifles creativity and hampers research.
• Crowdsourcing efforts show examples of useful activities that are not driven by property interests. More akin to gifts than any other property form
• Property can get in the way of good things.

 Jessie Owley

Hey Hey Hey The Gangs All Here!

I just looked around and realized that all of us land use bloggers are in Minnesota at ALPS Annual Meeting (Association of Law Property and Society). There are also several past and future guest bloggers gathered here. The progam looks great and things are just getting underway here with a fascinating panel on different approaches to doing property research. Expect to hear more from the gang over the next few days with some live blogging and tweeting (@JessicaOwley).

Jessie Owley

 

Environmental Justice and Healthy Homes

I am sad that I won't be back in Buffalo tomorrow for an amazing event the law school is organizing in conjunction with EPA and local environmental activists and community organizers. Stemming from a Healthy Home Practicum taught by Kim Connolly, the event will involve discussion of improving our local Western New York communities. More than a symposium, this forum will explore ideas with a goal of actually implementing plans to improve environmental and public health here in Buffalo.

More Info:

Local activists, academics, community organizers and federal experts will exchange ideas toward making Western New York’s homes and communities healthier at a daylong environmental justice forum on April 26. The gathering, titled “An Environmental Justice Forum for Buffalo Homes and Neighborhoods,” will run from 9 a.m. to 2 p.m. at the University at Buffalo’s Clinical and Translational Research Center, 875 Ellicott St.

Matthew Tejada, recently installed as director of the Environmental Protection Agency’s Office of Environmental Justice, will open the forum. William J. Hochul '94, US attorney for the Western District of New York, will discuss the importance of enforcement in addressing healthy homes matters. Other presenters include environmental justice experts from the EPA’s headquarters offices, the U.S. Department of Housing and Urban Development, and the Agency for Toxic Substances and Disease Registry.

The program’s sponsors include SUNY Buffalo Law School and its Healthy Homes Legal Practicum, the Community Foundation for Greater Buffalo’s Green and Healthy Homes Initiative, Neighborhood Legal Services, UB’s Civic Engagement and Public Policy Research Initiative and the UB Office of Sustainability.

Students participating in the Law School practicum provide legal support to the National Green and Healthy Homes Initiative, which has chosen Buffalo as one of 17 pilot cities for its work in promoting safer housing. Among the work produced by practicum students is 36-page publication called “A Neighborhood’s Continuing Evolution: An Environmental Justice Walking Tour of Buffalo, NY’s West Side.”

Professor Kim Diana Connolly, who directs the Law School’s clinical program and is one of three instructors of the practicum, says of the conference: “This forum will showcase the on-the-ground work being done by SUNY Buffalo Law School students and faculty that’s changing lives here in Buffalo while becoming a model for next-generation environmental justice elsewhere in the nation.”

The conference recognizes the presence, especially in the City of Buffalo, of an aging and deteriorating housing stock, environmentally unhealthy conditions in many neighborhoods, as well as high poverty and unemployment rates. Many families live in homes or communities that are unhealthy, unsafe and not energy-efficient.

Though local groups have been working to address these problems, their efforts are incompletely coordinated. The forum seeks to begin to develop “a truly sustainable strategy for healthy homes and communities that can become a model for other cities.”

Jessie Owley

Talking Energy in Minnesota

It's been a whirlwind of conferences for me this month. Two weeks ago I was at GW. Last week, we had a conference at Buffalo. Now, I am sitting in sunny but snowy Minnesota attending the 2013 Consortium Annual Conference, entitled "Legal & Policy Pathways for Energy Innovation."

My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.

Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were  not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!

And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.

Conference Summary

The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.

- Jessie Owley

 

Idaho Law fracking symposium presentations now available on-line for free

The video from the day-long Idaho Law Review symposium on hydraulic fracturing, which was held March 29, is now available for free online.  Papers and Powerpoints for the symposium can also be downloaded at the same site.  We had a great group of speakers and, by sharing these sessions for free, we are hoping to make these informative talks as widely available as possible.  Check it out!

Stephen R. Miller

Stern on Residential Social Capital's "Dark Side"

Stephanie Stern (Chicago-Kent) has posted The Dark Side of Town: The Social Capital Revolution in Residential Property.  Here's the abstract:

Social capital has pervaded property law, with scholars and policymakers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital — its capacity to effectuate local factions and promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, land cartels, and residential self-governance. First, contrary to the assumption of a social capital deficit, residential racial segregation and land cartelization, perhaps the deepest imprints on the American property landscape today, suggest an abundance of local social capital and possible unintended consequences of interventions to build social capital. Second, “governing by social capital,” or relying on social capital for property self-governance, may empower factions, breed conflict, and increase the demand for residential homogeneity as a proxy for cooperation. In light of the mixed evidence for social capital’s benefits and its sizable dark side, the more pressing and productive role for property law is not to promote social capital, but to address its negative spillovers and illiberal effects.

Jim K.

The Big Thaw: Policy, Governance and Climate Change in the Circumpolar North

We are just starting day two of a conference here at Buffalo on climate change in the artic. We have participants from many fields (coming in person and electronically). This conference is also our first try at broadcasting our conferences via webinar. This enables folks to participate from all over the globe (not just by passively listening but also offering real-time questions and comments). It also seems a great way to do CLE.

I am including the information on the  conference below in case any of you have some free time today and want to join the webinar. Also, the papers steming from the conference will be available in a SUNY Press book on the issue coming out next year.

Conference Summary:

The Big Thaw: Policy, Governance and Climate Change in the Circumpolar North will bring together experts in science, law, sociology, and other fields to explore the pressing issue of climate change in the arctic. Conference participants will deliberate on international, national, and local perceptions of environmental, cultural, social and economic change in the arctic, interweaving the contexts of policy, legal, local and scientific models. Through its core focus on time, space, change and movement, this conference seeks common measures to the time scales of lived human experience in the arctic and sub-arctic region in a warming world.

The circumpolar North is a critical observatory for changing relations between human societies and the environment, and the policies that should accompany such change. The arctic and the sub-arctic are at the center of global debates on post- Cold War partnerships and issues of
post-colonial governance, strategy and regional sovereignty. For political and other reasons, the circumpolar North has only recently reemerged as a "region," revealing past connections and current common problems, and pointing to future challenges. Experts will gather and share thoughts on how we arrived at the current situation(s), where exactly things stand, and where to go from here.

 

Jessie Owley

Church Fire in Athens

So I've been taking something of a break from blogging during my quasi-sabbatical, but I got a powerful lesson about the power of place this week, something that seemed worth sharing.  

Monday night Oconee Street United Methodist Church in Athens experienced a terrible fire.  This is the church my husband and I attended in Athens, and it's been powerful to see the effect of the fire on the community.  At first there was shock and grief but very quickly the community began to rally. The church is the home of the local soup kitchen, and only hours after the blaze they were serving breakfast in front of the still smoldering building.  A campaign has begun to restore the historic structure (originally built in 1903).  This church is an Athens institution, popularly known as the "church on the hill."

A few years ago I blogged about the rebuilding of another Athens insitution gutted by fire, the Georgia Theater.  The community banded together to help finance the two year rebuilding process, and the theater re-opened better and more beautiful than ever in 2011.  Here's hoping the same thing can happen with this wonderful little community church!

Jamie Baker Roskie