Wednesday, June 4, 2008
With much of the domestic politics in the nation addressing plans for a future with less oil (such as the big climate change bill now pending before Congress) and efforts to develop energy from sources other fossil fuels, energy companies are finding it more difficult to get land use approval for expanded fossil fuel facilities. But while companies know that it’s good to talk “green,” they also realize that America’s demand for fossil fuels is not going to diminish significantly anytime soon. And not all places in America object to the idea of a new fossil fuel facility.
The big news in South Dakota today is that citizens in Union County (in the southeast corner of the state) voted to approve a land use plan to rezone a rural area to allow the construction of a large new oil refinery. A news report suggested that voters from the suburbs of Sioux City, Iowa, tended to vote in favor of the change (and the prospect of new jobs), while voters in rural areas (whose jobs are tied more closely to farming) tended to vote against it. The report also stated that it would be the first new refinery built in the United States in 30 years. Not only are South Dakota voters more likely to accept such a facility than are voters in other regions, but the refinery would be close to old fields in Canada, which is the United States’ largest source of imported oil –- a link that could, somewhat ironically, strengthen as global warming makes arctic oil sources more accessible …
Tuesday, June 3, 2008
The federal Clean Water Act has long served as a thorn in the side of land developers, in large part because construction work that dumps soil or fills in a stream or wetland can be considered a form of water pollution that is regulated by the Act and, if even allowed, requires a federal permit. These land use complaints have reached the Supreme Court, which in recent years has issued two opinions that narrowed the reach of the Act (with Justice Scalia calling the government an “enlightened despot”) –- except that the Court’s fractured rulings did not result in any new clear statutory delineation.
In an application that may be the most contentious yet after the latest ruling, the U.S. Army of Corps of Engineers (which issues the permits for the dumping of “fill” material) reportedly has written a draft decision that excludes Clean Water Act coverage for many tributaries of the Los Angles River, the intermittent river (like most in southern California, of course) that reaches the Pacific after running though concrete beds in the city of angels.
The complicated legal issue has many parts, but the most significant comes in applying the Act’s lynchpin term “navigable waters.” In part because it was defined by Congress to include the term “waters of the United States,” just about everyone agrees that the term can’t be defined simply by asking “Can boats navigate on it?” Yes this question seemed to play a large role in the Corps’ tentative decision. The reasoning seemed to be that because the L.A. River itself isn’t navigable by boats, its tributaries can’t be covered by the Act. But even the most restrictive of the opinions (Justice Scalia’s) in the most recent Supreme Court decision (Rapanos v United States, 547 U.S. 715 (2006)) stated that “navigable waters” includes “streams.” And shouldn’t the fact that the L.A. River reaches the Pacific Ocean (which is navigable by boats, of course) cover all tributaries whose waters eventually flow to the ocean? The fact that the L.A. River may be dry for much of the summer also seems to be to be largely irrelevant, to me, as pollution that sits in dry beds in summer will likely move rapidly downstream after winter rains.
To me, the only sensible way to approach the question of regulating water pollution is to ask: Is the dumping of pollutants likely to work its way into water bodies at some point in the future? If yes, it should be considered water pollution, and land use developers should have to deal with pollution regulation.
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
- Jesse Richardson on Local Regulation of Hydraulic Fracturing
- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy
- Fennell and Peñalver on Exactions Creep
- March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities