June 24, 2011
Giant Kenyan Superhighway
My husband grew up in East Africa and follows the regional news fairly closely. A couple of days ago he sent me a link to this NPR story about a gigantic superhighway being built in Kenya, 16 lanes wide in some places, that engineers hope will alleviate Nairobi's epic traffic problems. Apparently, some folks still haven't gotten the decades-old news that you can't build your way out of traffic congestion...
Jamie Baker Roskie
June 22, 2011
In Memorium: Anne Dupre
I am very sad to report that UGA law professor Anne Proffitt Dupre passed away this morning, due to complications from cancer. I had Professor Dupre for my first year Contracts class. She was an exacting and dynamic professor who was also a wonderful mentor and friend to many, many law students over the years. This is a tremedous loss to both the academic and the Athens community. My sympathy goes out to her husband, Bill, and her many friends and colleagues. The law school has posted a memorial page.
Jamie Baker Roskie
Why Women Don't Cycle
Thanks to my friend Tracie Sanchez of BikeAthens and leader of our local women's cycling group "Westside ladies who ride...in skirts if they wanna" for alerting me to this blog post on Grist.org. An excerpt:
A widely cited 2009 study found that women are more likely to choose to ride on quiet residential streets, while men are more likely to choose direct routes even if they have heavier traffic. Women are an "indicator species" for cycling, this study concludes, and that cities can cajole greater women ridership by building safer-feeling bike infrastructure.
Much is also made of another concern women often express in surveys -- that cycling to work will impede our ability to conform to professional norms in clothing, makeup, and hairstyles. The response can be seen in the proliferation of the "Cycle Chic" brand, tweed rides, and the commingling of bicycling and high fashion in advertising.
There's plenty of truth in both the fear and fashion theories. But before we commit to blaming women's transportation practices on our timidity and vanity, I think it's worth looking at some other potential factors.
Like the economy.
Women are more likely than men to be poor. We still don't earn equal pay -- as recently as 2009, women made 77 cents for each dollar earned by men doing equivalent work. Other factors range from the kind of work available to women to hiring bias against pregnant women and mothers.
Despite the economy of bicycle transportation, households with lower incomes are less likely to have access to bikes. Barriers to bicycling include the cost of bicycle purchase when all one's transportation dollars are tied up in a car, cultural barriers such as perception and police profiling, and lack of access to safe infrastructure in neighborhoods with low housing costs.
On the days I don't cycle, it's more likely that I don't like the safety of the route I would need to take, or that I have to wear "lawyer clothes" on a 100 degree day, but I do believe that overall economic issues lead to a dearth of women riders. But bicycling is potentially economical, healthy transportation for folks in every economic bracket, so it's important to address all factors that keep folks who might want to cycle from doing so.
Jamie Baker Roskie
June 21, 2011
Craig on Energy System Impacts
Robin Kundis Craig (Florida State) has posted Energy System Impacts, forthcoming in THE LAW OF ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS, American Bar Association, 2012. The abstract:
The exact impacts of climate change in the U.S. are still uncertain, so the effects on the energy sector are also highly uncertain, although the uncertainty is greater regarding effects on energy supply and production than regarding energy demand. Overall, climate change is likely to increase energy demand, increase peak demands, and shift energy needs from heating oil and natural gas to electricity, all of which effects will be driven primarily by increased needs for residential, industrial, commercial, and agricultural space cooling as summers grow hotter and heat waves become more frequent. As for production and supply, the greatest overall effects of climate change in the U.S. are likely to be on operators’ abilities to cool power plants and the consequent loss of efficiency and capacity as a result of increased air and water temperatures and reduced water supplies; on hydroelectric generation as a result of reduced and more variable flows; and on energy-related infrastructure of all types as a result of increasingly severe weather events and sea-level rise. Importantly, however, these national or overall projections mask important regional variations in climate change impacts, and hence adaptation strategies should be cognizant of and responsive to those regional differences. Moreover, climate change impacts on the energy sector strongly indicate that adaptation efforts will need to coordinate energy policy and water policy to reflect the likelihood that climate change will have significant impact on the energy-water nexus.
Mulvaney's take on SCOTUS cert grant for PPL Montana v. State of Montana
I'm excited to post this guest blog from Professor Timothy Mulvaney, a land use prof from Texas Wesleyan School of Law in Fort Worth. He's written extensively about judicial takings and exactions, and proivdes this timely and interesting post about yesterday's U.S. Supreme Court cert grant. This case has been somewhat under the radar, but could end up being very important. Thanks to Tim for the early and interesting analysis-- Matt Festa
Thank you very much for the opportunity to guest blog during this important week at the U.S. Supreme Court.
It is understandable that today’s headlines regarding the Supreme Court are devoted to several landmark decisions released yesterday, including rulings rejecting class certification in Wal-Mart v. Dukes and holding that the Clean Air Act displaces federal common law nuisance claims when it comes to greenhouse gas emissions in AEP v. Connecticut. But in addition to these major holdings, the Supreme Court also took the noteworthy step of granting certiorari in PPL Montana, LLC v. State of Montana. This case could have important implications for property, land use, natural resources, and environmental law.
In 2010, the Montana Supreme Court held that the State of Montana owns the beds of the Missouri, Madison, and Clarke Fork Rivers as an incident of state sovereignty. This ruling confirmed that PPL Montana is required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power. PPL Montana claims that the riverbeds are private property, such that no rent to (or approval from) the State is necessary to conduct their operations. To determine whether these rivers are held in trust by the State or rather in private ownership turns on whether the rivers are considered “navigable.” The U.S. Supreme Court has defined waterways as “navigable” in the context of such a title dispute if the rivers were “used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel [were] or may be conducted” when the relevant State was admitted to the Union.
In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark. As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.” The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.
One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades. How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.
Yet there may be another issue lurking under the surface. In seeking the Supreme Court’s review, PPL Montana and several of its amici sought to frame the Montana Supreme Court’s decision as a “judicial taking.” You will recall that in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court left the existence and scope of a judicial takings doctrine in a state of flux. To cull from a law review article I authored on Stop the Beach this past winter:
A four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an “established” property right “no longer exists” may amount to an unconstitutional taking. … Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed. … Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” [Justice Stevens recused himself.]
In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, “[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.” In support of PPL Montana’s petition, the Cato Institute joined the Montana Farm Bureau Federation in contending that the Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause, calling the Court’s ruling a “thinly-disguised judicial taking.” For its part, the State of Montana maintained that nothing in the Montana Supreme Court’s decision contravened established property law, for PPL Montana’s “deeds and pleadings show it has no riverbed property to take” and the State “has claimed and received compensation for uses of navigable riverbeds for decades.”
It remains to be seen whether the U.S. Supreme Court will address the judicial takings question when it takes up PPL Montana, LLC v. State of Montana in the coming year. The certiorari stage documents are available here. It is anticipated that the parties and their amici will brief the case this summer, with oral argument likely to occur in the winter. Stay tuned to the Land Use Prof Blog for updated information.
Supreme Court News
It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out. Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term.
Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."
Also, Wal-Mart Stores, Inc. v. Dukes et al. This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field. The Wal-Mart Wars involve a distillation of many of the major land use issues in current events. I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher. Thanks to Troy Covington for the pointer.
In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case. We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!).
Call for Proposals New Partners for Smart Growth Conference
From Roberta White at EPA:
The deadline for submitting session proposal ideas for the 11th Annual
New Partners for Smart Growth Conference is quickly approaching --
please submit your session ideas before the June 30th deadline. The
conference will be held February 2-4, 2012 in San Diego, CA.
The Call for Session Proposals (CFSP) Submittal Instructions and online
Submittal Form are available on the conference web site. All proposals
must be submitted using the online form under the link below. This
process should be used to submit any proposals for breakouts, workshops,
lightening rounds, trainings, tours, or networking activities. The CFSP
process is open until June 30, 2011.
To access the form and instructions, visit this website.
Jamie Baker Roskie
June 20, 2011
Ziegler and Laitos on Property Rights, Housing, and the American Constitution
Edward H. Ziegler (Denver) and Jan G. Laitos (Denver) have posted Property Rights, Housing, and the American Constitution: The Social Benefits of Property Rights Protection, Government Interventions, and the European Court on Human Rights’ Hutten-Czapska Decision, Indiana International & Comparative Law Review, Vol. 21, No. 25, 2011. The abstract:
Nations around the world utilize government interventions to promote the availability and affordability of housing. This article focuses on various types of government regulatory interventions, such as rent controls, building dedications and exactions, and density and growth controls on housing. These interventions are common in the United States and in other countries and may contribute to inefficient resource allocation and poor housing outcomes. This article examines whether these types of government interventions may require, in particular cases in the United States, judicially required compensatory damages for affected property owners. The social costs of these forms of government intervention are examined from the perspective of the benefits accruing from a regime of property rights protection. This article further explains that there is some existing precedent under international human rights norms, as illustrated by the Hutten-Czapska v. Poland decision, for the standards used in the United States for protecting the property rights of owners and developers of housing from excessive and unwise government regulation.
Bronin on Solar Rights for Texas Property Owners
Sara C. Bronin (Connecticut) has posted Solar Rights for Texas Property Owners, Texas Law Review See Also, Vol. 89, p. 79, 2011. The abstract:
In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.
Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France's suggestion that zoning ordinances protect homeowners' solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France's proposal, according to Bronin.
Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France's proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas's current budget shortfall, and powerful interests groups that are affected by the proposal.
Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as "small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment." Bronin believes that renewable energy microgrids "should be a key part of solar access regimes in any state."