Wednesday, December 7, 2016
Detroit requires community benefits agreements with November election vote, but fewer projects are subject to the law than activists originally hoped
With all the coverage of the presidential election, you'd be forgiven for having missed some of the big local stories that emerged out of November's election.
A story I am just digging in to is Detroit's passage of a requirement that certain projects must offer a community benefits agreement. That said, the voters passed "Proposal B," which would have far less impact and given communities far less say than the original activist-sponsored "Proposal A." Very interesting developments. Here is a story from Michigan Chronicle:
n a hard-fought race that drew a stark and heated dividing line between passionate Detroiters in a battle to determine what was the most sensible way to craft a community benefits ordinance that would actually benefit the community, a majority of the city’s voters sent a clear message early Wednesday morning that when it comes to how best to regulate and control community development projects in their neighborhoods, Proposal B is what makes the most sense. With 98 percent of all precincts reporting, it appeared likely Proposal B was the victor by a margin of 7 percentage points, 54-36 percent.
A bit of background: The community benefits ordinance which eventually became Proposal A was first introduced to City Council two years ago and was designed to give Detroit citizens more say-so in the development process. The original ordinance required that all $15 million development projects with at least $300,000 in subsidy be reviewed by host committees within Detroit communities.
The ordinance grew from a petition by a grassroots campaign, Rise Together Detroit. The campaign believed that the ordinance would help ensure that “those within ‘old Detroit’ are not left out” as the city continues to be developed. Rashida Tlaib, former Michigan House representative, is a leader in the push of the ordinance. In an interview with Michigan Radio, Tlaib suggested that the ordinance requires more of a burden for Detroit communities to get organized and that more public conversation regarding upcoming developments will discourage corruption. She said that what has come to be known as Proposal A would ensure that issues such as public health, noise barriers, quality of life and blight aren’t overlooked by developers.
Councilman Scott Benson submitted an alternative ordinance that is more palatable to the business community but has drawn significant fire from supporters of the original version. Opponents of Benson’s version, which became Proposal B, claimed he was trying to undermine the petition, which Benson strongly denied. Benson and his supporters (only three City Council members – Council President Brenda Jones, Councilwoman Mary Sheffield and Councilmember Raquel Castaneda Lopez – supported Proposal A) have consistently claimed that Proposal A was a poorly-worded and ultimately confusing contract that would, as a consequence, be difficult to enforce and would also discourage development in the city at a critical time when Detroit is just starting to wage a comeback.
Proposal B also offers a much higher project development threshold of $75 million compared to the $15 million offered by Proposal with the rationale that a $15 million development project is not big enough to expect any developer to put up with in addition to all other existing hurdles. Benson said that $75 million was more realistic. Proposal B also allows participation from city elected officials in the negotiation process between neighborhood groups and developers, whereas Proposal A shut out participation from city officials – elected or otherwise – altogether.
Monday, December 5, 2016
The Buffalo Environmental Law Journal is seeking proposals for its spring symposium, "Climate Change: Law, Policy, and Regulation." The symposium will be held at the University at Buffalo School of Law on Saturday, March 11, 2017.
Climate change is the most pressing environmental and human rights issue of our time. Yet, actual lawmaking in this arena has been slow to occur. Without comprehensive climate change legislation, efforts in the United States have largely focused on regulatory solutions under the Clean Air Act. The Obama Administration’s Clean Power Plan is the most recent attempt at a wide-reaching regulatory framework to address climate change drivers in the US. Yet, the Clean Power Plan faces many challenges. Advocates are grasping for other legal theories, including drawing upon the Endangered Species Act, the National Environmental Policy Act, and developing new theories like Atmospheric Trust Litigation. At the same time, challengers oppose increasing federal regulation. The Buffalo Environmental Law Journal is interested in exploring the legal challenges for climate change advocacy, alternative policy approaches, and the stumbling blocks for existing and proposed legal theories.
Speakers are invited to discuss climate change law on all themes and content areas. Articles will be published in the Buffalo Environmental Law Journal's summer issue. Some suggestions for panel topics include --
Natural resource security
Climate change and endangered species
Air and water quality
National and international security
Human rights and environmental refugees
Environmental Justice and climate change
Comparative climate change law
Climate change tax and finance
To submit a proposal, please send an article abstract (max. 250 words), as an email or attached document, to email@example.com by 5pm EST on December 16, 2016.
Friday, December 2, 2016
Funded Doctoral Fellowships available to Qualified JD students to Pursue Water Law and Science at the University of Florida - Jan. 17th Application Deadline
The UF Law Environmental and Land Use Law Program is participating in the UF Water Institute’s Graduate Fellows Program which provides funding (tuition & stipend) for four years for qualified graduate students seeking to obtain a doctoral degree. J.D. graduates from accredited law schools are encouraged to apply, and need not take the GRE. J.D. students selected for the cohort will work closely with Legal Skills Professor Thomas T. Ankersen and other faculty in an interdisciplinary program that has its research theme based in Costa Rica. Cohort students will participate in the UF Law Costa Rica Program in 2018, and in the UF Law Conservation Clinic. Some Spanish is an asset but not required; there will be an expectation that the student will further develop language skills during their time in the program. Details can be found in the flyer below and attached. In addition to contacting the Water Institute directly as provided below, interested J.D. students can feel free to contact Professor Ankersen at firstname.lastname@example.org . Note that the application deadline is January 16th, 2017.
On December 1, BLM issued a final rule that changes its approach to land use planning. The program, known as "Planning 2.0," intends to front-load commenting and shorten the time-frame for plan adoption. Here is more from the fact sheet on the final rule:
Fact Sheet – Land Use Planning – Final Rule
December 1, 2016
The BLM manages more than 10% of the nation’s land and 30% of the nation’s subsurface minerals under the authority granted in the Federal Land Policy and Management Act of 1976 (FLPMA). FLPMA requires the BLM to manage the public lands for multiple-use and sustained yield. To accomplish those management goals, FLPMA requires the BLM to prepare land use plans in coordination with other Federal agencies and state, local, and tribal governments. Resource management planning is an essential tool for balancing the many competing uses and values of the public lands.
The BLM’s regulations that guide the planning process have not been updated significantly in more than thirty years. State, local and tribal governments and the public have told the BLM that the planning process is too slow – plans take an average of eight years to complete – and is not responsive or transparent to the public. By the time resource management plans are completed, they often are outdated or challenged in court, further delaying implementation. Concerns were also expressed that the plans are not responsive to the changing circumstances and demands on the public lands and do not use best practices to deal with new or ongoing issues.
The BLM developed the final planning rule through significant outreach and discussion with State and local governments, communities, stakeholders, other governmental partners, and the public. The goal of the final rule is to allow the BLM to more effectively address the complex issues facing the public lands in a timely manner and increase engagement.
Highlights of the Final Rule
- Involving the Public Early. The final rule enhances opportunities for public involvement in a number of ways, including the addition of a planning assessment as the first step in the process. The BLM will first solicit input from stakeholders to help identify public viewsdefine the planning area boundary, and collect the best available information. In another new opportunity for public involvement, the BLM will develop preliminary alternatives, which will be made available for public review before the draft resource management plan is published. These new steps are in addition to, not replacements for, all of the public involvement opportunities previously available in the planning process.
- Promoting Efficiency We believe that early feedback from the public will make the planning process more efficient and effective. Supplemental analyses will be needed less often, and litigation should be reduced by identifying and addressing concerns and conflicts earlier.
- Public Comment Periods Appropriate to the Task. The final rule increases the minimum period that public comments will be accepted on often-complex draft resource management plans from 90 days to 100 days. In order to increase efficiency and in recognition of the fact that plan amendments are typically a lot shorter and less complex than full plans, the rule reduces the minimum comment period for draft amendments from 90 days to 60 days. In appropriate circumstances any comment period also can be extended.
- Strengthening Partnerships. The final rule preserves and enhances the BLM’s partnerships with state, local, and tribal governments. FLPMA and the National Environmental Policy Act give other Federal agencies and state, local, and tribal governments a special role in the planning process and include coordination and consistency requirements. If other governmental entities choose to participate as cooperating agencies, they work side-by-side with the BLM at every stage of the process, sharing information and draft documents that are not available to the public. The rule also recognizes the unique coordination that will occur with other Federal agencies and state, local and tribal governments even if they choose not to be cooperating agencies so that the BLM keeps apprised of and considers their plans, policies, and management programs and assists in resolving any inconsistencies between their plans and BLM plans. Finally, the new opportunities for public involvement discussed above also will be available to other Federal agencies and state, local, and tribal governments at early stages of the process.
- Planning With High Quality Information and at an Appropriate Scale. The final rule encourages planning at a scale that makes sense given the resources involved. It ensures adequate flexibility to obtain high quality information about those resources at all stages of the process and to identify planning area boundaries and decision makers that are most relevant to the resource issues presented. The decision maker will in most cases still be the State Director, as it is today, but the rule provides for other configurations when that makes sense. In addition, the rule supports the use of best practices developed over the years to consider the breadth of resource values, the uses that people make of those resources, environmental and ecological conditions on the ground, and the social and economic needs and concerns of local communities.
- Adapting to Change. Pressures on BLM lands have increased due to growing demand for use, more competing uses, and resource issues such as invasive species and wildfire. The final rule will better enable the Bureau to respond to change by providing for the use of adaptive management. Under the final rule, resource management plans will set clear goals and objectives to guide future management and allow for the use of adaptive management techniques.
- Reaffirming Essential FLPMA Policy. The final rule revises and clarifies the existing planning rule. It reinforces the policy direction in FLPMA requiring management of the public lands for multiple use and sustained yield and includes a definition of the concept of sustained yield, emphasizing this core tenet of the BLM’s approach to public land management.
Key Differences between the Proposed Rule and Final Rule
Public Comment Periods Appropriate to the Task. The proposed rule would have reduced the minimum length of formal public comment periods on draft land use plans (from 90-days to 60-days) and plan amendments when an environmental impact statement (EIS) is prepared (from 90-days to 45-days).
Public comments largely supported the new, early opportunities for public involvement, but generally did not support a reduction in formal comment periods. The final rule adopts the new opportunities for public involvement and expands the current 90-day comment period for draft land use plans to 100 days. The final rule reduces the current 90-day comment period for EIS-level plan amendments to 60-days instead of 45-days as proposed.
Planning Areas and Responsibilities. The existing planning regulations identify the BLM field office as the default boundary for land use plans and assign responsibility for the preparation of resource management plans to BLM Field Managers and approval of resource management plans to BLM State Directors. Under the existing regulations as well as the final rule, the BLM Director has the authority to assign these responsibilities to a higher level or to select a different boundary.
The proposed planning rule would have removed the default planning area boundary and replaced references to State Directors with “deciding official” and Field Manager with “responsible official.” Although many public comments supported these changes, other comments expressed concern that this approach would dilute local needs or concerns and reduce the ability of State and local governments to influence BLM resource management plans. The final rule adopts the proposed terminology changes to “responsible official” and “deciding official,” but provides that, when land use plans do not cross State boundaries, the default deciding official will be the BLM State Director.
Notice Requirements. The proposed planning rule would have replaced several requirements to publish a notice in the Federal Register with a requirement to notify the public through other means, including direct email or posting to the BLM website and at local BLM offices.
Many comments requested that the BLM retain all existing Federal Register notice requirements. In response to these comments, the final rule retains most existing Federal Register notice requirements, in addition to alternative forms of notification.
Distinction between Plan Components and Implementation Strategies. The proposed rule would have distinguished between planning-level decisions (referred to as plan components) and strategies to implement the plan (referred to as implementation strategies). This proposed change was intended to provide clarity on what is considered “planning-level” management direction and requires a plan amendment to change.
Many comments stated that the concept of “implementation strategies” created confusion and uncertainty, not clarity. In response, the final rule adopts the proposed “plan components” which provide planning-level management direction, but does not adopt the proposed “implementation strategies.”
Coordination with State, Tribal, and Local Governments. The BLM received many public comments regarding coordination with State, Tribal, and local governments, as provided in section 202(c)(9) of FLPMA. Many comments raised concerns that the proposed rule would diminish coordination requirements. Several changes are made to clarify coordination requirements in response to these comments, while retaining the existing framework for coordination, to ensure the BLM “keep[s] apprised of the plans, policies and management programs of other Federal agencies, State and local governments, and Indian tribes.” In addition, the final rule includes a new regulatory requirement to consult with Indian tribes on a government-to-government basis during the preparation and amendment of resource management plans.
Cooperating Agency Status. The BLM received many public comments stating that the proposed rule contained language that commenters believed would restrict which agencies could participate as “cooperating agencies.” This was not the intention, and this language was removed. The final language tracks the Council on Environmental Quality’s NEPA implementation regulations and the Department of the Interior’s NEPA implementation regulations.
Consistency with State, Tribal, and Local Government Plans. Several public comments expressed concern that the proposed language could be read to narrow inappropriately the BLM’s responsibility to maximize consistency with the plans of other Federal agencies and State, local, and Tribal governments. In response to public comments, the final rule revises the provisions related to consistency. Changes include replacing “land use plans” with “plans”; defining “officially approved and adopted plan” as a “resource-related plan”; and removing proposed language which would have required consistency “to the extent the BLM finds practical.”
Thursday, December 1, 2016
Crimetown: A podcast about the unbelievable life of Buddy Cianci, America's most famous, and infamous, mayor
I can hardly believe it, but there is a new podcast answering some of the deepest questions I had as a young college student at Brown University in the earky Nineties: who is this mayor Buddy Cianci, and how the hell does anyone ever become Buddy Cianci?
As any east coaster knows, Buddy Cianci is the legendary mayor of Providence, Rhode Island, who did just about anything good a mayor ever did for a town, and also did just about anything bad a mayor could do for a town. It's an incredible story... and now it's a podcast.
Catch Crimetown here.
The trailer is embedded below:
The shadow Carrier "incentives" and the return of corporate welfare masquerading as economic development
While President Trump is in Indiana this morning touting his retention of Carrier jobs, we all have reason to worry about what this deal portends for the next several years. Vice-President Elect Mike Pence, who is still the Governor of Indiana where the factory is located, reportedly secured unspecified "incentives" for the facility to retain the jobs there. The State of Indiana and Carrier refuse to specify terms of the incentives; this sets a terrible precedent.
Those that follow the blatant corporate welfare that is traditional "economic development" policy know that these deals almost always mean tax breaks, tax incentives, or even tax credits to the corporation in exchange for job retention. Those tax dollars--whether as foregone revenue or a return of revenue--mean that the citizens of Indiana are now subsidizing each job at the factory. Put another way, Trump didn't "save" Carrier jobs; rather, he has forced the citizens of Indiana to pay the difference between off-shoring each Carrier job and keeping it in Indiana. Time to come clean.
If Trump wants to engage in economic development activities for the working class, he should require, in exchange for whatever corporate welfare his future Vice President has forced Indiana residents to provide, that Carrier assist the working population with things like skill creation or improving community assets, such as schools, that could provide the workers' children a long-term competitive place in the global economy. Requiring citizens of Indiana to subsidize Carrier, without requiring the company to invest in its workers, simply impoverishes the State and leaves its workers without long-term futures when the subsidies run out.
[Update: Since I wrote this post, the NYT reported that the incentives were valued at $7 million over 10 years, though details still remain scant.]
Wednesday, November 30, 2016
A friend of mine here in Boise rents out her home on Airbnb enough to have earned herself "super host" status. Several weeks ago, she was approached by Airbnb to engage in an activity that was remarkably wonderful and, to Airbnb's credit, not highly publicized: they just did it.
The conceit was simple: in cities with recent arrivals of refugees, Airbnb asked hosts if they would be willing to serve a newly-arrived refugee family Thanksgiving dinner. My friend here in Boise agreed and was paired with a 7-member family recently resettled from the Congo: a mother and father both ages 50, with children ages 21, 19, 16, 14, and 7 years old. As folks may know, Boise has a large resettlement community and, amazingly, was the the city where hosts reached out the most of any place in the country. Here is a follow-up e-mail my friend received from Airbnb:
. . . Across the country 41 host families invited over 130 newly resettled refugees from 8 different countries for dinner - with a couple rescheduled for next week. Boise led for the most number of plates served, with Pittsburgh and Raleigh coming in a close second.
Tuesday, November 29, 2016
Last year, I served as an adviser on United States' land use policy for OECD's survey of worldwide land use policy. The fruits of OECD's massive study are just now rolling out. Here is a link to the first summary publication, called The Governance of Land Use: Policy Highlights. The document serves as a great introduction to land use law and policy, its complexities, and where it is likely to go from here. The global focus also gives a refreshingly new look at issues. Well worth a read. The larger reports that this report summarizes will tentatively roll out in Spring, 2017.
Here is a brief video framing the issues:
Friday, November 18, 2016
As my friends melt down around me and declare that Trump’s election means the end is nigh, I have found myself feeling remarkably resilient and thinking about how now is precisely the time that state and local governments matter most.
I am not the first to declare this. Bruce Katz at Brookings has a nice piece declaring the importance of cities regardless of the impending diminishment of federal leadership on just about everything.
Nonetheless, I wanted to give my own particular spin on this because I feel this election really tugs at different parts of my history. Before I divulge my policy prescriptions, let me indulge in a little personal history.
I grew up a decidedly middle-class Midwesterner in Dayton, Ohio, though I should be clear that my father was a physicist, and so ours was not exactly a “Joe Six Pack” family or one tied to the factories or mills of the Rust Belt. That said, I went to a public school, and I met and was friends with a wide variety of kids who were tied to that life. The Moraine Assembly, one of the enormous and fabled facilities of the mighty General Motors days, was located in my town, and all those kids were in my classes. From that place, I headed east to an Ivy League, then west to a law degree and a master’s at ultra-liberal California universities, and spent most of my adult life in New York City and San Francisco. I’d become, in some sense, an “elite,” though, as Joan Williams notes in her excellent post-election essay in the Harvard Business Review, the folks back home never really thought much of anything I’d accomplished because it was intellectual work and it didn’t make me rich. For the past six years, I have lived in Boise, Idaho. Though I root for the Boise State Broncos, my boyhood’s sense of geography still views Ohio Stadium as the locus where important things are decided, such as college football championships and presidential elections.
With my sabbatical looming next year, I had long thought that I would spend some time next year returning to my boyhood home to answer a certain question that I had framed in my mind as something like, “whatever happened to Dayton?”. I never expected that question to be of any real significance to anyone other than myself until the election and, suddenly, everyone was talking about the industrial Midwest, the “white working class,” and how this bastion of blue went red. Someday, I am going to write more about that.
For today, I am less interested in thinking about how the industrial Midwest turned a presidential election than I am in thinking about how the kind of work that I do—and that many of the blog readers do—can have an effect in soothing some of the underlying cankers that the election exposed.
Here are several prescriptions for dealing with the issues the election exposed, some of which have to do with the Midwest, and some of which are more broadly framed.
First, the industrial Midwest clearly needs to engage all areas, and especially its rural areas, in economic development that helps them create a “ground up” vision of their own economic future.
If you look at a vote of industrial Midwestern states by county, you see that most urban areas voted blue, most rural areas voted red. Now, it may be that a lot of those voting “red” are simply conservatives, which is perfectly fine. But reports seem to indicate that many of them voted for Trump because of a sense of hopelessness about their economic futures. Whether that is true, or just a convenient narrative that is developing, is unclear to me at this point. I will say, however, that it rings true to me as a native Midwesterner: Almost every major business that was located in Dayton when I grew up there in the Eighties is now gone. NCR. Mead. Citizens Bank. And, of course, the Moraine Assembly, where GM had built S-10 pickups, all closed or moved elsewhere, among many others.
To address this, the bottom-up model for economic development I suggest Midwest communities adopt is the Colorado Blueprint, which I wrote about in an article a few years ago. Here is how I summarized that project:
In January, 2011, then-newly-elected Colorado Governor John Hickenlooper initiated one of the most aggressive “bottom up” economic development planning strategies ever devised in the United States. The strategy was outlined in Hickenlooper’s Executive Order 2011-003, Implementing a Statewide Economic Development Strategy, which provided:
In order to grow Colorado’s economy, it is vital to engage Coloradans across the state in developing a comprehensive and collaborative approach to economic development. This new approach is designed to identify the needs, priorities, vision, strengths, and weaknesses of each of the state’s counties, and incorporate them into 64 economic development plans, tailored to each county. These plans will roll up into fourteen regional plans that will comprise a comprehensive, statewide economic development plan.
This planning effort, which became known as Colorado Blueprint, engaged more than 5,000 people at more than 50 meetings around the State. More than 8,600 surveys were completed and all of the State’s 64 counties participated. A State team designated to lead the effort traveled more than 6,000 miles. In addition, a dozen state agencies and statewide organizations participated. This was the “bottom up” approach: the State did not begin drafting any economic development objectives until it first went and talked to people throughout the State’s regions.
The result of the “bottom up” approach was the Colorado Blueprint document, which was delivered in October 2011, just nine months after Governor Hickenlooper began the program.
The document provided detailed action items for the State in six identified objectives: (1) build a business friendly environment; (2) retain, grow, and recruit companies; (3) increase access to capital; (4) create and market a stronger Colorado brand; (5) educate and train the workforce of tomorrow; and (6) cultivate innovation and technology.
But what is most instructive for rural economic development is that the Colorado Blueprint process did not begin with the statewide plan. Instead, the process created action plans for each of the State’s counties and then rolled those up into fourteen regions plans. For instance, the Comprehensive Economic Development Strategy developed for Region 9 (Region 9 Strategy) encompasses some of Colorado’s most rural areas located at State’s most south-western area. The Region 9 Strategy concluded with a chart that listed each of the region’s priorities, established strategies for achieving those priorities, listed specific actions that could be taken to advance the strategies, and then listed expected outcomes and measurable results.
As a bolded statement in the Colorado Blueprint document noted, “This is not a comprehensive collection of all-encompassing end-goals for all of Colorado, but rather a first set of achievable objectives to undertake together.” This type of action item planning arising from the communities empowers localities with steps to an achievable local future that is, simultaneously, tied to a statewide and even a global future.
If the industrial Midwest really feels as disenfranchised as it seems in this election, a broad embrace of Colorado’s ground-up economic development planning seems a necessity for those states.
Second, liberals need to learn to talk “red state,” especially with regard to environmental goals.
Successful environmental results in red states largely evade the notice of blue state environmentalists because blue states are looking for success on their terms. To be successful in red states, environmentalism needs to realize that it needs to “speak” to the other half of the country that is not necessarily “progressive,” and doesn’t ever want to be. Apparently this is something people are just starting to contemplate in earnest: I was at a fundraiser earlier this week for a conservation group here in Idaho and the director said his phone was ringing off the hook with people all over the country asking him how the group had been so successful in a deeply red state.
Let me give several other examples of how I have seen this play out since being in Idaho that perhaps expand on the necessity to speak environmentalism in a language that aligns with conservative values.
The City of Boise recently established what it calls a “LIV District,” which largely causes confusion among those that don’t look further. So, what does LIV mean? Here is how Boise defines it:
Recognize, protect and improve the health and sustainability of all our activities, our connections to one another, and our natural resources.
Work with individuals, nonprofits, and businesses to encourage creativity and collaboration that will promote economic prosperity and improve lives.
VIBRANT COMMUNITIES Engage citizens and organizations to spark new connections, inspire cooperation, and strengthen Boise’s rich, community-minded spirit.
Now, if you have just the most basic knowledge of sustainability principles, you will recognize these as essentially the trivium of “Es”—environment, economy, and equity—that have formed the basis of sustainable development theory for decades. But in a conservative state like Boise where the word “sustainability” draws out the anti-Agenda 21ers, Boise is re-branding these core ideas in a way that is amenable to the local community.
Similarly, the law school here in Boise recently moved into a beautiful, renovated WPA-era courthouse as our new location. As part of upgrade, the building was attached to the city’s geothermal system, making it almost certainly one of the most energy-efficient law schools in the country. But guess what? This is a red state, and so the state administrative agency that owns the building didn’t bother with LEED certification, and we as a law school make no effort to publicize that we have this incredibly “green” building. Why? Because “green” in Idaho is distrusted. But the state administrative agency that manages buildings could justify expanding the geothermal system because it made excellent long-term economic sense. And so, while the law school building is a great “green” success, it will never be marketed as such. Instead, it will be marketed as an efficient use of taxpayer dollars, which it also is.
By the way: did you know that Boise has the country’s largest geothermal heating system that heats most of the major downtown buildings? Probably not, because it’s not the kind of place that highlights how “green” it is.
Finally, I heard one of the leaders of Envision Utah, probably the country’s most successful regional planning organization of the last several decades, talk about how they address a deeply conservative population about planning. He noted that they never talk about “density”; instead, they did significant outreach to find out what mattered to individuals in the greater Salt Lake City area. What they found was that there was significant concern that families could not stay together because there was not a housing mix that allowed for family members in different life stages to live close together. That interest in keeping families close together became a way to talk about density that resonated with the local values in a way that “density” never would.
These are just a few examples, but they illustrate that environmentalism in red states cannot proceed with the same language as in blue states. It needs to speak to local values. Given that the two fastest growing regions of this country—the Mountain West and the South—are dominated by conservative constituencies, there is an imperative to develop a language of environmentalism and land use law that speaks to the values of those who live there. By speaking the local language, new avenues of collective engagement open up where doors might be closed to the same policies when cloaked in “progressive” values.
Third, cities should continue to focus on driving markets for energy efficiency and climate change.
Whatever Trump does with climate change as a policy matter, he cannot change the fact that the large majority of carbon emissions (up to 70% by some estimates) arise from cities that, overwhelmingly voted against Trump and that want to do something about carbon emissions. For this reason, leadership by cities is more important than ever. Take for instance, Santa Monica’s leadership in implementing its recent net-zero residential building requirement, or Salt Lake City’s commitment to use 100% renewable energy by 2032. Barring a far-reaching federal preemption over matters traditionally of local concern, Trump will be powerless to control cities that seek to aggressively combat climate. Of course, there are many aspects of climate change that require a federal response, but let us not underestimate the power of cities, regions, and even states to lead the way while the Trump administration dithers in pseudo-science.
Finally, we must face the fact that the real enemy of the white working class is not trade, but technology, and we must chart a legitimate way forward.
By painting the demise of Midwestern jobs in trade, Trump was able to wrap the loss of jobs in the bitter reprise of Springsteen that “those jobs are going boys and they ain’t coming back.” Trade permitted the indulgence in racism, xenophobia, and a “them” that was taking away everything from an “us.”
But let us return, once more, to the Moraine Assembly, so close to my childhood home. Growing up, the Assembly made S-10s. Later, when I was off at an Ivy League, I read that GM had re-tooled the whole factory to make brakes. After that I lost touch, but with a little research I learned that GM kept the place open until 2008. Since then, that massive stretch of steel that could house 41 football fields has been idle.
(Incidentally, the closure of the Assembly was the subject of an HBO documentary, The Last Truck: Closing of a GM Plant filmed by Steve Bognar and nominated for an Oscar. Steve was a childhood hero of mine. He taught a documentary film class at my high school and led a group of us in making a documentary about the lawsuit over whether Robert Maplethorpe’s photographs were pornography that arose from display at the Cincinnati Contemporary Arts Center. We called it, "Oh Say Can We See?". It was not nominated for an Oscar.)
Until 2014, when the Assembly was purchased by China-based Fuyao Glass Industry Group Co. Ltd., which manufactures automotive glass for GM and other automakers. That’s right, a Chinese investor bought this facility in the heartland and...a Chinese company brought jobs back to the U.S. It now employees several thousand, but at $12 an hour, whereas the GM jobs paid $30 an hour.
So, if we were to re-write the Springsteen verse to the parable of the Moraine Assembly, it would be that “those jobs probably aren’t coming back, but if they do, there will be fewer of them, you’ll get paid less, and you’ll be working for a Chinese company.”
What changed since the closure of the GM factory and the Fuyao factory opened, of course, was automation. The speed of technological change affects the working class first, and it affects industrial workers most. The twenty-first century is only going to exacerbate this trend; as has been well documented, the impending ubiquity of autonomous vehicles will largely destroy the last bastion of “good” white working class jobs, the long-haul trucker.
So, if there is a culprit to the loss of jobs in this part of the country, technology is probably a more likely culprit than trade. But as vital as it is to address that challenge, it has no easy resolution. There is no easy scapegoat to technology’s march.
The best first response might be to invest in re-training to help factory workers transition to other industries. This was the lure of “green jobs” when the Midwest’s factory workers were going to be employed making wind turbines but, again, that required just a fraction of the jobs employed prior to the march of technology.
I have no easy response to what technology does to industrial towns. But let me end, with a broader parable about my hometown. Earlier this year, I picked up David McCullough’s The Wright Brothers about the Dayton-born brothers who invented mechanized flight. The book chronicles the Dayton of their time and, as hard as it is to imagine, living in Dayton at the turn of the twentieth century was kind of like being in Palo Alto when Hewletts and Packards were tinkering in their garages. Here is how McCullough describes it:
Then, too, there was the ever-present atmosphere of a city in which inventing and making things were central to the way of life. At about this time, just prior to the turn of the century, according to the U.S. Patent Office, Dayton ranked first in the country relative to population in the creation of new patents. The large factories and mills of Dayton kept growing larger, producing railroad cars, cash registers, sewing machines, and gun barrels. (36)
Dayton was not alone; at the turn of the twentieth century, the industrial Midwest was a place of tinkerers that were pushing the forward edges of industrialism. But there was also something else about the Midwestern culture that was always a little reluctant to engage the future and embrace change. I have always recalled this passage from a New Yorker article about the Cincinnati race riots several decades ago (Cincinnati is just south of Dayton):
At other times, in other ways, conservative impulses have thwarted social and economic progress. For instance, in the early nineteenth century, Cincinnati was the nation’s leading cultural and mercantile outpost beyond the Alleghenies; but by mid-century the city fathers, prosperous and satisfied stewards of an economy tied to steamboat transportation, resisted the imperative to adapt to a railroad-based system. (One consequence was that this hastened the meatpacking industry’s shift from Cincinnati to Chicago.)
That passage stuck with me because it gave a history to the impulse that I felt, from an early age, to leave the industrial Midwest. For, while I felt the spirit of the Wright Brothers in the place, it always seemed there was a self-satisfied impulse that what existed now was good enough. Whatever had allowed Chicago to bypass Cincinnati prevented the place from fully engaging the world as it is rather than a nostalgia for a bygone era.
If I am upset about the election, it is that the destructive nostalgia of the place I left now has hold of the nation. That makes it all the more imperative not to brow-beat the Midwest, but engage and help those afraid of the future find a place in it, and perhaps even attain some aspiration to lead. I always had a special, local’s love of Melville’s declaration that, “men not very much inferior to Shakespeare, are this day being born on the banks of the Ohio.” For all of the hubris in such a claim, why shouldn’t Ohio, and all the Midwest, be that kind of place that Shakespeares are born, and moreover, that they want to stay? It would mean creating a culture there not just of getting jobs back, but picking up where the Wright Brothers left off: embracing change, technology, and facing down the strong headwinds that give lift to the wings of planes, states, and nations. I don’t know if the industrial Midwest will ever get there, but it seems we all may need to spend more time helping them try.
Thursday, November 17, 2016
The sharing economy is bringing a whole host of new issues to the fore that perhaps were not imaginable a few years ago. One of the most important might be the relation between the Communications Decency Act § 230 (CDA § 230) and land use regulation. In short, CDA § 230 has become Airbnb and other short-term rental companies' litigation strategy of the year. They argue that CDA § 230, in essence, provides them immunity from cities seeking to impose penalties against the STR companies for advertising illegal units. At its base, the argument is that because platform-based companies do business on the Internet, they are immune from land use regulations that would otherwise apply to them if they were a business operating off the Internet. This strikes me as an incredibly dangerous line of cases because, should Airbnb prevail, it would seem that anyone could take an existing non-Internet business, move it to a platform-based delivery model, and all of a sudden, land use regulations that would otherwise apply are magically unenforceable.
Also of note are that the only amicus briefs filed thus far in these CDA § 230 cases are by professors and organizations that are strong advocates of the Internet as a regulation-free zone. Their amicus briefs make no mention of the local effects of the STR industry, much less even acknowledge that their arguments would preempt local land use regulations not just in the case of STRs, but potentially in a very broad set of circumstances. Here are the two amicus briefs from the San Francisco case:
It is surprising to me that no land use / property / local government professors are weighing in. I will acknowledge my own failure to do so (where does the time go?); however, I really think courts need to hear from this group of scholars on the implications of viewing the Internet as some purely disembodied, privileged mechanism that transcends time, space, and regulation. The effects of STRs are very local, and very real. As many folks know, I am actually a believer in growing sharing economy uses, but I do not believe that shrouding such businesses in preemption of local regulation simply because of the avenue of commerce used makes any sense at all.
Luckily, the first court to weigh in on this seems to understand what is at stake. A decision denying a preliminary injunction was just issued on November 8 by a district court in San Francisco. Here is an excerpt on the CDA § 230 claim from Airbnb, Inc. v. City & Cty. of San Francisco, No. 3:16-CV-03615-JD, 2016 WL 6599821, at *3–6 (N.D. Cal. Nov. 8, 2016):
Monday, November 14, 2016
Sunday, November 13, 2016
From our students (and my colleague Anastasia Telesetsky, who is working with the students on this project):
The Idaho Law Review’s
Natural Resources & Environmental Law 2018 Edition:
“Climate Change and Adaptation in the Pacific”
The Idaho Law Review is pleased to announce that the theme of the Natural Resources & Environmental Law (NREL) 2018 Edition will be “Climate Change and Adaptation for the Pacific.” This edition will showcase eight to ten substantive articles that analyze existing and proposed adaptation policies and practices in both the Pacific Northwest Region and the Pacific Islands. All articles will be submitted for peer-review.
Sea level rise, extreme weather events, increased flooding, infrastructure damage, increased drought, wildfires, ocean acidification, and shifting fisheries, are forcing governments to address the impacts and consequences of an increasingly warming climate. Under the United Nations Framework Climate Change Convention, States are expected to formulate, implement, publish, and regularly update national and regional program to facilitate adequate adaptation to climate change. The objective of this law review edition is to explore how the United States is adapting to climate pressures in the Pacific Northwest and in those Pacific Island regions where the U.S. has jurisdiction (e.g. Guam, Northern Mariana Islands, and American Samoa).
Some of the questions that we hope will be addressed within this edition and at the conference organized in advance of the edition include:
- How are laws and policies within the Pacific Region addressing sea level rise, erosion, inundation risks, and flooding linked to climate change?
- Is there a need for a initiative to address how vulnerable ecological areas will adapt to sea level rise and ocean acidification? What is the appropriate level for such an initiative--state, national, or regional level?
- What roles could or should local, state, and federal governments play in establishing and developing policies and initiatives that promote climate change adaptation in regards to water resource management within the Pacific Northwest and Pacific Islands particularly in relation to drought and wildfire risks?
- To what extent should governments require actions from private firms to implement adaptation programs?
- What role should businesses like insurance companies play in developing programs that promote climate change adaptation and stimulate protective infrastructure developments?
- In regards to climate-triggered species migrations, due to our increasingly warming climate, how can the U.S. adapt its policies in the Pacific Northwest or the Pacific Islands including fisheries plans and habitat conservation plans to be responsive to climate change?
Individuals who are invited to publish an article with the Idaho Law Review will also be invited to a public research conference to be held either in Moscow, Idaho or Couer D’Alene, Idaho before the publication in early Spring 2018. We invite you to please submit your short abstracts (no more than 300 words) and CVs to be considered for this edition. Please contact the Review by sending an e-mail to Janell Middleton at email@example.com by December 1, 2016.
Friday, November 11, 2016
CALL FOR PRESENTATION PROPOSALS
Institute for Law Teaching and Learning—Summer 2017 Conference
Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302
July 7-8, 2017
University of Arkansas at Little Rock William H. Bowen School of Law
ABA Standard 302 requires all law schools to establish learning outcomes in certain areas, such as knowledge of substantive and procedural law, legal analysis and reasoning, and the exercise of professional and ethical responsibilities. While requiring outcomes in these areas, however, the ABA also has given law schools discretion under Standard 302(d) to individualize their programs by establishing learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession.” These other professional skills “are determined by the law school and may include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.” This language encourages law schools to be innovative and to differentiate themselves by creating learning outcomes that are consistent with their own unique values and particular educational mission.
The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law schools are establishing learning outcomes related to “other professional skills,” particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills. Which, if any, of the outcomes suggested in Standard 302(d) have law schools established for themselves, and why did they select those outcomes? How are law professors teaching and assessing skills such as cultural competency, conflict resolution, collaboration, and self-evaluation? Have law schools established outcomes related to professional skills other than those suggested in Standard 302(d)? If so, what are those skills, and how are professors teaching and assessing them?
The Institute welcomes proposals for workshops on the teaching and assessment of such skills in doctrinal, clinical, externship, writing, seminar, hybrid, and interdisciplinary courses. Workshops can address the teaching or assessment of such skills in first-year courses, upper-level courses, required courses, electives, academic support teaching, or extracurricular programs. Workshops can present innovative teaching materials, teaching methods, course designs, assessment methods, curricular, or program designs. Each workshop should include materials that participants can use during the workshop and also when they return to their campuses. Presenters should model best practices in teaching methods by actively engaging the workshop participants.
The Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. To be considered for the conference, proposals should be one single-spaced page (maximum) and should include the following information:
- the title of the workshop;
- the name, address, telephone number, and email address of the presenter(s);
- a summary of the contents of the workshop, including its goals and methods; and
- an explanation of the interactive teaching methods the presenter(s) will use to engage the audience.
The Institute must receive proposals by February 1, 2017. Submit proposals via email to Kelly Terry, Co-Director, Institute for Law Teaching and Learning, at firstname.lastname@example.org.
Schedule of Events:
The UALR Bowen School of Law will host a welcome reception on the evening of Thursday, July 6. The conference will consist of concurrent workshop sessions that will take place at the law school all day on Friday, July 7 and until the early afternoon on Saturday, July 8.
Travel and Lodging:
A block of hotel rooms for conference attendees has been reserved at the Little Rock Marriot Hotel, 3 Statehouse Plaza, Little Rock, AR 72201. The discounted rate will be available until June 5, 2017. Reservations may be made online by using this link: Group rate for UALR School of Law Room Block July 2017. Reservations also may be made by calling the hotel’s reservations department at 877-759-6290 and referencing the UALR Bowen School of Law/ ILTL Conference Room Block.
The conference fee for participants is $400, which includes materials, meals during the conference (two breakfasts and two lunches), and the welcome reception on Thursday evening, July 6. The conference fee for presenters is $300.
For more information:
Please visit our website (http://lawteaching.org/conferences/2017/) or contact one of the ILTL Co-Directors:
Professor Kelly Terry
Professor Emily Grant
Associate Dean Sandra Simpson
Thursday, October 27, 2016
...this lovely new book, The Story Cure: An A-Z of Books to Keep Kids Happy, Healthy and Wise, co-written by my friend Susan Elderkin and out today. It is a UK book, but I think would still be of interest to American readers. Here is the blurb:
From tantrums to tummy aches to teenage mood swings, there are times when a book is the best medicine of all. The Story Cure is a manual for grown-ups who believe that the stories which shape children's lives should not be left to chance.
In these pages bibliotherapists Ella and Susan recommend the perfect children's book - from picture books to YA novels via the golden world of chapter books - for every hiccup and heartache. Whether the young child you know is being bullied, the toddler can't sleep, or the teenager has fallen in love for the first time - or just doesn't know what to read next - the right story will help them feel themselves again. Packed full of helpful lists of the best books to read when turning ten or going through a spy/horse/superhero phase, you'll find old favourites such as The Borrowers and The Secret Gardenalongside modern classics by MT Anderson, Malorie Blackman and Frank Cottrell Boyce. The Story Cure is the perfect companion for initiating young readers into one of life's greatest pleasures.
New York and Airbnb head back to court over illegal short-term rentals, and it may all come down to the Communications Decency Act
In a spate of cases across the country, Airbnb is opening up a line of attack that pits Internet freedom against land use regulation. The shield Airbnb seeks to use these days is primarily the Communication Decency Act Section 230, which provides that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Airbnb is arguing that this broad provision protects it against a host of regulations and fines.
For an analysis of some of the broader implications of how CDA is applying to short-term rental regulation, you might check out a podcast I did last month with Jamila Jefferson-Jones (UMKC) for the ABA Real Property Trusts and Estates Section, which is available here for RPTE Section members.
The latest salvo in this series of cases is Airbnb's new lawsuit against New York City. From the NYT:
Hours after Gov. Andrew M. Cuomo of New York signed a bill that would impose steep fines on Airbnb hosts who break local housing regulations, Airbnb filed a federal lawsuit contending the new law would cause it “irreparable harm.”
The heightened battle in New York follows lawsuits that Airbnb has filed against its hometown San Francisco and in Santa Monica, Calif., which have both moved to fine the company for illegal listings.
The company, which operates in a regulatory gray area around the globe, is also fighting tough battles in Amsterdam and Barcelona, Spain, which penalizes hosts who list illegal rentals, and in Berlin, which has banned most short-term rentals.
The new law in New York allows authorities to fine hosts up to $7,500 if they are caught listing a property on a rental platform such as Airbnb.
“New York is taking a bold step that will hopefully set a standard for the rest of the country and other countries in the world that are struggling with the impact of Airbnb on affordable housing,” said Assemblywoman Linda B. Rosenthal, a Manhattan Democrat who sponsored the bill.
Airbnb, which has tripled in value in just two years to $30 billion, is fighting hard against any regulation that would affect the number of hosts on its platform. The company cannot expand without a steadily increasing number of hosts, and its rental revenue growth could slow as more cities around the world move to push potential providers off the platform.
The New York law is particularly worrisome for Airbnb. New York City is the company’s largest market in the United States. The city’s hosts generated about $1 billion in revenue last year, and the company took a cut of that amount in fees.
In its lawsuit, filed Friday afternoon in Federal District Court in the Southern District of New York, the company contends that the law violates the company’s constitutional rights to free speech and due process, as well as the protection it is afforded under the Communications Decency Act, a federal law that says websites cannot be held accountable for content published by their users.
The new law “would impose significant immediate burdens and irreparable harm on Airbnb,” the company said in its complaint. “In order to be assured of avoiding liability, including potential criminal prosecution, Airbnb would be required to screen and review every listing a host seeks to publish.”
The lawsuit was filed against Eric T. Schneiderman, the state attorney general, Mayor Bill de Blasio and the City of New York.
New York lawmakers, including State Senator Liz Krueger, one of Airbnb’s primary legislative foes, counter that they had the Communications Decency Act in mind when they drafted the bill, which is why it holds the hosts responsible for advertising illegal listings and does not impose any fines on Airbnb.
Wednesday, October 26, 2016
From a listserv:
For the first time in 12 years, [Center on Budget and Policy Priorities] CBPP has an opening for a new Housing Policy Analyst to join our team in the DC office. I think you all know our work well enough to appreciate what a good career opportunity this could be for someone with a masters’ (or J.D.) who is interested in making an impact on housing policy. The person in this position will focus (at least initially) on funding and policy reforms for federal rental assistance, particularly the Housing Choice Voucher program, but the scope of work may expand as opportunities arise. We’re looking for a really smart, insightful analyst with excellent communications skills and a deep commitment to making poor people’s lives better. Please share this announcement with people you think would be interested and qualified (check out the job posting at http://www.cbpp.org/careers/po
licy-analyst-housing). Salary really is commensurate with experience – we’re open to mid-level people as well as those recently out of grad school. We hope to have the new analyst begin work in January.
Nov 17-19: ABA State & Local Government Law 2016 Fall CLE and Networking Conference in Phoenix, Arizona
Register for the meeting:
Please make your hotel reservation today! The room block expires tomorrow. Use the attached link to book your room at The Camby, Autograph Collection for $199.00 per night:
The meeting overview is provide below. Full conference details are also attached, for your convenience.
Thursday, November 17, 2016
12:30 p.m. to 1:30 p.m. – Young Lawyers Committee
Conference: 866.646.6488; 476.263.2730#
1:45 p.m. to 2:45 p.m. - Executive Committee Meeting
Conference: 866.646.6488; 476.263.2730#
3:00 p.m. to 4:00 p.m. - State and Tribal Attorneys General Hot Topics Roundtable
4:15 p.m. to 6:00 p.m. - Cybersecurity Table Top Exercise
6:00 p.m. to 7:30 p.m. (Pool Rooftop) - Welcome and Networking Reception
Sponsor: Dentons US LLP, Phoenix, AZ
8:00 p.m. to 10:00 p.m. - No Host Dine Around
Dinner with your colleagues at a local restaurant (choose one):
- Steak 44, 5010 N. 44th Street
- The Henry, 4455 Camelback Road
- Donovan's Steak & Chop House, 2502 E. Camelback
- Tomaso, 3010 E. Camelback
- Tarbells , 3212 E. Camelback Street
- Barrios Café, 2814 N.16th Street
- Vincent, 3930 E. Camelback Road
Friday, November 18, 2016
7:00 a.m. to 6:00 p.m. - Section Registration & Hospitality
7:00 a.m. to 8:00 a.m. – Breakfast
8:00 a.m. to 9:30 a.m. - Election Dissection: Lessons Learned from the 2016 Election
9:45 a.m. to 10:45 a.m. - Siting on Indian Lands
11:00 a.m. to 12:00 p.m. – The “Legalized” Theft of Native American and African American Lands
1:45 p.m. to 3:00 p.m. - Nurturing Innovation in Building Design and Urban Planning: How Local Government Can Encourage and Enable Advances in Green Building and Sustainable Development
3:15 p.m. to 4:15 p.m.- Towards a Permanent Tribal Homeland: The Challenge of Indian Water Rights Settlements in the West
4:30 p.m. to 6:00 p.m. - On and Off the Reservation: Mutual Trust, Sustainability, and Environmental Integrity
7:30 p.m. to 9:00 p.m.- Group Dinner: The Gladly, 2201 E Camelback Road
This is a ticketed event at $80 per person
Saturday, November 19, 2016
7:00 a.m. to 8:00 a.m. – Breakfast
8:00 a.m. to 9:00 a.m. -
Urban Lawyer Advisory Board
8:00 a.m. to 9:00 a.m. –
Membership Committee, Diversity Outreach Committee and Electronic Communications
9:00 a.m. to 10:00 a.m. – Publications Oversight Board
10:00 a.m. to 10:30 a.m. – Sponsorship Committee
10:30 a.m. to 11:30 p.m. – Land Use Committee Business Meeting
11:30 a.m. to 12:00 p.m. –Content Advisory Board
12:00 p.m. to 1:00 p.m. – Substantive Committee Business Meetings: Condemnation, Public Finance, Government Operations, International, Environmental and Energy, Ethics, Public Education, Public Contracts, Emergency Management, Diversity Law, Native American Tribal Law, International Law, Judicial, Sharing
1:00 p.m. Board buses for Tour (meet in lobby)
1:30 p.m. – 3:30 p.m. - Frank Lloyd Wright's Taliesin West Insights Tour
(Tickets are $50/person and include bus transportation)
4:00 p.m. – 6:00 p.m.
Public Service Project: Native Health Community Garden, 4221 N Central Ave.
Sunday, November 20, 2016
8:30 a.m. to 11:00 a.m. - SLG Council Breakfast Meeting
Conference: 866.646.6488; 476.263.2730#
Tuesday, October 25, 2016
Be sure to check out the new interactive collection of maps, Mapping Inequality: Redlining in New Deal America, which allows viewers to look through the original risk maps created by the Home Owners' Loan Corporation. As most readers know, these maps started with the presumably good intention of stabilizing communities during the Great Depression; however, in grading communities, and thus determining the availability of federally-back mortgages, HOLC relied heavily upon racial factors. Later termed "redlining" for the red color of the often African-American communities on these maps, racial segregation deepened because red communities on the maps had difficult times receiving mortgage assistance. Seeing this in a neighborhood you know, and the blatant terms coded onto the forms, brings home how a good idea in theory--assessing property--became one of the most harmful racial tools in American history.
It seems it would be a valuable teaching tool.
Here are several maps, one of the entire country and another screenshot from my hometown of Dayton, where the colors match up almost precisely with the racial distribution in that city during mid-century.
Saturday, October 22, 2016