Friday, December 1, 2006
Because the legal response to global warming inevitably complicates land use law, I am justified in this post about the argument in the U.S. Supreme Court Wednesday in the case of Massachusetts v. EPA. The case shows two major failures of representative democracy in addressing perhaps the world’s most important topic.
First, it is quite likely that the Court will dismiss the case for lack of standing. A number of states and environmental groups claim that the EPA must regulate carbon dioxide (the leading “greenhouse gas”) as a “pollutant" under the Clean Air Act’s mobile source emission standard, § 202(a)(1), 42 U.S.C. § 7521(a)(1). Among others, Justice Scalia has been at the forefront of imposing tough requirements on plaintiffs to show that their asserted injuries are “imminent,” “concrete,” and “particularized.” But these requirements are largely the creation of judge-made law of the 20th century; the U.S. Constitution does not even use the word “standing.” I assert that the Court’s recent jurisprudence on standing in environmental law cases deprives citizens (and state governments) of the essential power to obtain judicial review of violations of federal law.
Second, and more fundamentally, the plaintiffs’ substantive demand –- that EPA regulate carbon dioxide through the Clean Air Act – exposes a failure of the political branches of the federal government. The immensely difficult policy choices in responding to global climate change –- Impose a carbon tax? Cap-and-trade? Kyoto? Invest billions in a potential technological fix? –- are questions that should be decidedly squarely by Congress and the President. They should not be decided by dumping the issue in the lap of an agency (EPA) through a statute that was not designed to deal with global warming. It is true, of course, that political hot potatoes are often sent to agencies; with global warming, however, it is time for Congress and the President to act, regardless of the outcome of Massachusetts v. EPA.
Thursday, November 30, 2006
Our era of divisive politics brings out conflicts between land use law, which tries to ensure harmony and conformity, and free speech, which protects controversy. Earlier in the week I wrote about the debate over a peace sign wreath in Colorado. Today comes another controversy –- this one from Lafayette, Cal., an affluent community just over the hills east of the San Francisco Bay. On private property across from the train station, anti-war advocates have created what they call a memorial, with hundreds of crosses and a large sign listing the number of American servicemen killed in Iraq. City law prohibits signs this large (maximum size 4 square feet), but makes exceptions for memorials.
Wednesday, November 29, 2006
[The Wal-Mart Wars, continued …]
They once said that what happens in California eventually slides down to the rest of the country. If this is still true, we may see other localities following the vote of the San Diego (population: 1.2 million) City Council yesterday to ban any big box store that also sells groceries -- in other words, no Wal-Mart Supercenters.
I won't write yet another defense of the free market and yet another rant against the demonization of the nation's largest employer. But I will comment on a statement by a San Diego councilman who said he supported the ban because he wants a "walkable" community. It is no exaggeration to say that many Americans do much of their walking by visiting the shopping mall, at which they park and walk among stores (witness the popular phenomenon of "mall walking"). Wal-Mart now builds "Supercenters" of more than 200,000 square feet, including the grocery section. Since box-box retailers have yet to allow auto driving inside the store (although this may be in our future), I wouldn't be surprised to learn that the sheer size of the giant stores forces some shoppers to walk more than they would if they drove to two or three smaller stores to get their shopping done!
Tuesday, November 28, 2006
As Americans return to their workplaces after the busiest travel weekend of the year, here are two updates, from opposite sides of the globe, on transportation topics that I wrote about last week.
Environmental advocates are pushing New York City to impose a fee, like downtown London's, on motor vehicles entering the crowded southern half of Manhattan. While I like the concept of impact fees, the plan raise some concerns (beyond the opposition of outer borough and suburbanites who don't have easy access to the subway, bus, or commuter rail system). First, the supposed air pollution benefits are likely to be minimal, considering that the number of vehicles in lower Manhattan is just small fraction of the area's total air pollution. Second, unlike London (and other less-sprawling European metros), New York should worry that making it more difficult to get to Manhattan may encourage businesses to re-locate or establish in the suburbs. Many big corporations have already fled the congested city for greenfields in New Jersey, Westchester, or Connecticut in recent decades; relative disadvantages in transportation laws will simply encourage more movement to the suburbs, undermining the intended effect of the city's plan. (Right, Judge Posner?)
Across the world in Sydney, Australia, the city is planning to turn some downtown street lanes into dedicated bus routes, instead of the more expensive option of rail routes. As more and more cities across the globe accept the idea of clean, efficient, and hi-tech dedicated bus routes, eventually many Americans will abandon their almost innate rejection of the urban bus as the most promising solution to urban transportation needs in the 21st century.
Monday, November 27, 2006
[HOAs run wild: First in a series about reigning in common-interest-community rules]
In the latest example of homeowners associations run amuck, an HOA in Pagosa Springs, Col., has ordered a resident to take down a Christmas wreath in the shape of a peace sign. The private government contends that it violates the association's no-sign rule. Some residents have complained that the peace sign expresses a political message and is offensive to those with relatives serving in the military.
Rules of HOAs fulfill a useful role by serving as private regulation of anti-social activity that does not quite rise to the level of a nuisance under public tort law. Ten barking dogs, piles of garbage in the front yard, and a 50-foot statue of Elvis over the house: these are the kinds of annoyances that HOA rules are properly aimed at. They are especially welcome in our society of individualists, for whom respect for others' feelings and interests is a low priority.
But homeowners associations have run wild, and are imposing upon Americans an unnecessary uniformity of action, and sometimes of thought. It is truly cockeyed when a nonverbal symbol such as a Christmas wreath is impermissible solely because it expresses a THOUGHT, such as "peace." Although the First Amendment does not apply to private HOAs, of course, state law should ensure that residents (who often have no choice, in a nation in which about half of all new housing units come with substantive covenants) do not have to give up their free speech rights at home. Which kinds of actions and speech should state law protect? I'll leave this to later blog posts. But the peace wreath is a good place to start …