May 26, 2012
Stevenson & Eckhart on Standing as Channeling in the Administrative State
My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012). The abstract:
For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.
This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.
The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits.
You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services. And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case.
May 25, 2012
Fracking: More on the story from out west
As Jessica Owley noted in her post yesterday, it seems everyone is talking about fracking these days. And it’s not just the east-coast-Marcellus-Shale-folks having all the fun.
Out here in Idaho, fracking looms big on the horizon for two reasons. First, Idaho’s spring legislative session was marked by heated debate about whether local governments should retain control over siting of fracking operations, or whether such powers would be brought to the state level. When the dust settled, the state-level folks won with the March, 2012 passage of Idaho H464, which effectively preempts local control over fracking siting. The issue has now become a matter in upcoming elections in those counties where fracking is most likely to occur in the state.
Second, I’m pleased to announce that I was asked to be the faculty advisor for the 2012-2013 Idaho Law Review’s symposium, which will be held in Spring, 2013, and will focus on fracking. Already several luminaries on the topic are slated to speak, and I’ll announce more on the symposium as time draws closer. We will plan to make the symposium resources readily available since this is such a hot topic.
In the meantime, an interesting side note: natural gas prices keep falling and are really low. As in, a 30-year low. Will the market for natural gas make the fracking fracas fade? Maybe. But probably not. T. Boone Pickens doesn’t think so, and not just because he’s an oil and gas man, but because he believes in global warming. His argument for why natural gas, and fracking, aren’t going away any time soon—and shouldn’t—is here. Is he convincing?
Stephen R. Miller
May 24, 2012
Everyone in New York is talking about fracking. We routinely have folks stopping by our door asking us to sign petitions or donate money to fight fracking. (In fact, NYSPIRG stopped by last night.) I live in the city of Buffalo, which has banned fracking. This is the case in many towns and municipalities around the state and may work because of New Yorks Home Rule law. As there is a moratorium in place pending some additional environmental review, we have some time before courts fully examine the legitimacy of these local bans. The ban in Buffalo is largely sympolic as no one is proposing to drill any gas wells here, but some of these communities are in the heart of the Marcellus shale.
Last week, Vermont became the first state with a state-wide ban. Again this is probably largely symbolic but the public outcry against this technique is worth listening to.
New San Francisco public art fee amendments permit off-site and temporary performance funding
Last January I noted in a post that San Francisco was contemplating changes to its public art fee program that I believed were significant in the evolution of such fees. Well, I'm here to report that, after a year of wrangling, such changes were finally adopted and became effective in late May. You can access the text of the legislation here.
Like the majority of over 350 other public art fee programs adopted across the country since the Sixties, San Francisco's new public art fee amendments assess a "percent-for-art" fee on new development, which requires that such development use the stated percentage (typically between .5 and 2 percent) of the total project cost for publicly-accessible art. Many percent-for-art programs apply only to public projects; however, San Francisco's ordinance has long applied to all private development within its downtown core. Most percent-for-art fees also typically require that the public art be placed on-site; however, San Francisco's new amendments require on-site public art, but permit the developer to choose to place part of the required art funding into a trust fund that could be used for off-site or temporary public art performances or installations. The permission of off-site and temporary performances or installations for private development is really what is novel here.
As I describe in an upcoming article (I'll share the link very soon), this change in the public arts funding model reflects a change in the nature of public art itself towards temporary installations. As such, San Francisco's new ordinance is a timely model for other cities that might be considering how to update the funding of public art to reflect changes in the medium funded.
Stephen R. Miller
Call for Presenters: ABA Land Use "Professor's Corner" Teleconference (August 8, 2012)
First, a big congrats to Jessica Owley and Stephen R. Miller on permanently joining the Land Use Prof Blog! An exceptional blog just got even better!
How often do you get a chance to make a presentation to a national audience of legal scholars without ever leaving the confines of your own office? The ABA's RPTE Section has begun holding monthly "Professor's Corner" teleconferences at which law professors from across the country discuss recent court decisions. Land Use Prof Blog's own Matt Festa made a presentation at one of these teleconferences back in May. The upcoming August 8th teleconference (12:30 Eastern/ 11:30 Central) will focus solely on land use law issues, and the ABA is seeking two additional panelists to give 15-minute presentations on a recent land use decision of their choice.
Presenting at an ABA Professor's Corner teleconference obviously requires no travel, gives you an excuse to read up on a recent case, and is something worthy of adding to your CV! If you're potentialy interested in being a panelist, please contact me directly at firstname.lastname@example.org for the details.
Nolon on Regulatory Takings, Property Rights, and Sea Level Rise
John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll. The abstract:
Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”
This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.
This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux. The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.
May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack
May 22, 2012
Oswald on Deference in Judicial Review of Public Use Determinations
Lynda J. Oswald (Michigan--Business) has posted The Role of Deference in Judicial Review of Public Use Determinations, forthcoming in 39 Boston College Environmental Affairs Law Review (2012). The abstract:
In Kelo v. City of New London, the United States Supreme Court emphasized its longstanding practice of deferring to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights and that the state courts are entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines: (1) the ways in which the role of deference in judicial review of public use determinations can vary between federal and state courts and among state jurisdictions; and (2) the difficult issues raised by the interplay between legislatures and courts in public use determinations. Because the Supreme Court’s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to assume increasing importance. Property owners, therefore, need to understand the issues raised by deference in judicial review of public use challenges in both federal and state courts.
Today I was listening to a podcast from the Congress for the New Urbanism's annual meeting last week (more on CNU 20 to come . . . ), and I heard a talk by Charles L. Marohn, Jr., the Executive Director of a nonprofit called Strong Towns. The organization is dedicated to improving community life at the town and neighborhood level. Here's a link to its ten Placemaking Principles for Strong Towns.
What looks like the best feature is the excellent Strong Towns Blog, which posts in-depth original analyses three times per week. Recent posts are on topics such as "The Micro City Beautiful"; Low-Impact Development (LID) vs. New Urbanism; and weekly news digests of interesting land use and planning stories. Check it out.
Kelly on Strategic Spillovers
Daniel B. Kelly (Notre Dame) has posted Strategic Spillovers, 111 Columbia Law Review 1641 (2011). The abstract:
The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This Article investigates the costs of strategic spillovers, the circumstances in which threatening to engage in these spillovers may be credible, and potential solutions for eliminating, or at least mitigating, this form of opportunism through externalities.
Survey for Environmental/Land Use Profs
I am excited for the upcoming AALS midyear workshop on Torts, Environment and Disaster.In particular, we will have a session addressing head on the opportunities and needs for mentoring and making connections across and within communities of scholars. In preparation for a session on 'Generations of Environmental Law' at the upcoming AALS midyear meeting, my fellow panelists and I have created a survey for environmental law professors. With this survey, we hope to get a sense of the types of mentoring available to environmental law faculty as well as get some suggestions for improvement. If you consider yourself a land use or environmental law professor, please add your voice. The survey is only 9 questions and should take 5-10 minutes. We will share the results at the conference and with the environmental law community via listserv and blogs. We appreciate your participation and our community’s efforts to improve connections among colleagues.
Thanks for your participation,
(co panelists = Daniel A. Farber, Bruce R. Huber, John Copeland Nagle, Hari Osofsky, Melissa Powers, and Kalyani Robbins).
Glad to be back!
I am delighted to return to Land Use Prof Blog permanently after my stint here earlier this year. My thanks to Matt Festa and the other editors for giving me a chance to do so.
In addition to new content, I will soon begin posting updates on several items I mentioned in my January posts that have taken interesting turns since. Stay tuned! I also hope to continue the use of this blog as a voice for both the academic and practicing land use community. And so, if you have articles, events, or announcements you'd like to feature on the blog, feel free to contact me, and I'll do my best to get notices up in a timely manner.
Once again, it's great to be back. And the real blogging will begin momentarily...
Stephen R. Miller
DuVivier Wins Best Title Contest
How can you pass up a document called "Beware the Dark Side of Trees?"
K.K. DuVivier recently posted a very helpful document about planting trees in a way that does not reduce the potential passive solar heating you can get for your home. It even comes with helpful diagrams. Who knew a law professor could produce something so practical!
Here is DuVivier's abstact:
Everyone loves puppies, and everyone loves trees. But just as we had to learn to curb and clean up after our dogs, we now need to learn to become responsible tree owners. Many of today’s well-intentioned tree-planting programs ignore the dark side of trees that threaten green energy solutions such as urban gardens, buildings with passive solar designs, solar hot water, and solar-generated electricity systems.
This short pamphlet (one 2-sided page with illustrations) is an attempt to alert everyone to be aware of the dark side of any tree you plant — both the planting location and the shade footprint. Otherwise, any carbon-capture gains from the new trees may be offset by the increased fossil-fuel burned to replace the clean solar energy lost.
May 21, 2012
Welcome Stephen R. Miller!
We are excited to announce that Stephen R. Miller (Idaho--Boise) has agreed to join the Land Use Prof Blog on a permanent basis. He did a great job guest-blogging earlier this year, and he'll be a terrific addition to the team. His faculty bio:
Stephen R. Miller joined the faculty of the University of Idaho College of Law in 2011. Miller received his undergraduate degree from Brown University, and a master’s degree in city and regional planning from the University of California, Berkeley. In 2006, he graduated from the University of California, Hastings College of Law, where he was senior articles editor of the Constitutional Law Quarterly, and was a research assistant to Professor Joel Paul. Miller also worked for a land use and environmental law firm in San Francisco, California prior to joining the faculty. His research interests include economic development, sustainable development, land use, environmental law, and local government law.
Coming on the heels of the Owley Land Use Coup, this is an exciting time for us at the Blog. We will get Jessie's and Stephen's contact info up on the masthead soon, but in the meantime if you google him, note that he is Stephen *R* Miller-- just so you don't mistake him for a picker, a grinner, a lover, or a sinner, or any other sort of Miller. He is Stephen Miller the land use prof! And we're very glad to have him on board.
Blocks Where No One Has Fun: Salon on Urban Entertainment Districts
Will Doig has an interesting article in Salon called Urban Entertainment Districts: Blocks Where no one has Fun. Subtitle: "Cities keep trying to create downtown cool with dull nightlife districts. But who wants to hang out at the mall?" The article starts with a criticism of Dallas' Victory Park, moves to Kansas City's Power & Light District, and generally paints a negative picture of big-project attempts to create "entertainement districts"--or "districts" of any kind, including "arts districts." It's a well-written article with a good general critique, so read the whole thing. Let me tease out one of the sub-themes here: the problem of comprehensive urban development projects.
What could be wrong with a district where nightclubs and galleries are encouraged to thrive? Nothing, necessarily; done right, a city can help foster these scenes with a gentle guiding hand. Constructing an entire milieu from whole cloth, however, is where cities get into trouble. “The problem with these created-overnight districts is that you’re trying to create a culture as opposed to letting one grow,” says Nathaniel Hood, a Minneapolis-based transportation planner. “You’re getting the culture that one developer or city council member thinks the city needs, as opposed to the ground-up culture that comes from multiple players.” . . .
“A district inherently becomes a single-use idea,” says [studio owner Patrick] Kennedy. “Everything [in the "arts district"] has to be ‘art.’ You end up with a bunch of performing arts spaces and when they’re not in use it becomes a vacuum.” This vacuum has made the district itself a museum of sorts, something impressive to observe but strangely inert. (The Chicago Tribune called the area “the dullest arts district money can buy.”) . . .
So it seems like there are two problems with the "let's-create-a-cool-urban-district" impulse: (1) the practical (and cultural) limitations of comprehensive development projects, and (2) the inherent tendency towards single-use separation that comes with large scale "districting" plans:
That’s a defeatist choice to have to make, but the monocultures created by urban districting make it almost inevitable. At last week’s 20th annual Congress for the New Urbanism, Hood spoke about the folly that is Kansas City’s Power & Light District, an $850 million entertainment district whose neon signage is as blinding as its eagerness to be hip. . . .
It’s not just that the developers are boring people — the economics of single-owner districts incentivize blandness. Chain stores and restaurants can afford to pay higher rent, so they get first dibs. To boost rents even higher, tenants are sometimes promised that no competition will be allowed nearby. “Starbucks will be willing to pay the higher rent if [the developer doesn't] let other cafes into the area,” says Hood. . . .
He contrasts these contrived districts with the more organic development of an entertainment scene at Boston's Kenmore Square: "it shows that these districts work better without all the bureaucratic attachment parenting."
Let's not forget that these grand schemes usually come from good intentions, which combine economic incentive with a genuine desire to create attractive places. But there are some limitations that inhibit these grand schemes. I think that the biggest challenge for the intermediate-term urban planning future will be to figure out how to make legal and incentivize the creation of public spaces through an incremental but still realizable process.
I'm going to Dallas for a bar lecture in a couple of weeks, so I'll try to check out Victory Park. Thanks to Jason Rowe for the pointer.
Where Can I find Burrowing Owls?
I have been quite impressed by the information available electronically these days especially in map (and GIS) format. For example, I quickly added aps to my Ipad that allow me to track soils and tree species in my neighborhood. The latest in fun online resources is the Map of Life. Started by a consortium of scientists, Map of Life will map distributions of vertebrate species. I used it to track all my favorite owl species.
Jessie "Hoot Hoot" Owley
Joining the Fray
I want to thank Matt Festa and the Land Use Prof crew for welcoming me to the family. I first blogged here in February 2011 and as Matt notes, I was hesitant to call myself a Land Use Prof. This hesitation centered mostly on the fact that I do not teach Land Use (and indeed had not even taken the class as a student), but as readers will quickly note much of what I write and think about falls firmly into the land use camp. I actually started graduate school back in 1998 thinking I would become a land use planner. Happily, I have found this awesome career and hope to periodically share my thoughts and experiences with you. As Matt noted, I have a couple of nonlaw degrees under my belt and think of myself as an interdisciplinary scholar. I hope to also increase readers' exposure to some nonlaw research in the land use area out there.
Happy to Be Here
May 20, 2012
Penalver & Alexander: An Introduction to Property Theory
Eduardo M. Penalver (Cornell) and Gregory S. Alexander (Cornell) have posted the introduction to their new book on Property Theory. The book is An Introduction to Property Theory, in the series Cambridge Introductions to Philosophy and Law. The intro chapter is on SSRN, and here is the abstract:
This book surveys the leading modern theories of property – Lockean, libertarian, utilitarian/law-and-economics, personhood, Kantian, and human flourishing – and then applies those theories to concrete contexts in which property issues have been espe- cially controversial. These include redistribution, the right to exclude, regulatory takings, eminent domain, and intellectual property. The book highlights the Aristotelian human flourishing theory of property, providing the most comprehensive and accessible introduction to that theory to date. The book’s goal is neither to cover every conceivable theory nor to discuss every possible facet of the theories covered. Instead, it aims to make the major property theories comprehensible to beginners, without sacrificing accuracy or sophistication. The book will be of particular interest to students seeking an accessible introduction to contemporary theories of property, but even specialists will benefit from the book’s lucid descriptions of contemporary debates.
Dod & Duhart on Evaluating Katrina
Eloisa C. Rodriguez-Dod and Olympia Duhart (Nova Southeastern) have posted Evaluating Katrina: A Snapshot of Renters’ Rights Following Disasters, Nova Law Review Vol. 31, p. 467. The abstract:
Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.
This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity of land, increases in costs for repairs, higher insurance, infrastructure uncertainty, rental property inflation, uncertainty over flood protection, zoning restrictions, and criminalization. This article discusses legislation and attempted legislation impacting renters post Katrina. The article explores the increase in rent after disasters and a suggested control. It further discusses the manner in which criminal backgrounds determine rental options following disasters. Specifically, the article focuses on legislation limiting access to rentals and suggests, with the right legislation in place, New Orleans will be able to successfully rebuild its lower and middle income housing.