Saturday, September 29, 2012
Land use professors have aptly observed that the subject of land use lends itself well to the integration of theory and practice. (See, for example, past Land Use Prof postings on Nolon & Salkin’s scholarship and conference work dedicated to this topic). Each city offers up a wealth of land use proposals that can be observed through public hearings and brought into the classroom in various ways, including papers and simulations. Some professors have even used their land use courses as a practicum in which students draft land use legislation or policy-related documents.
In this posting, I propose a slight twist on the theory and practice concept; one that actively involves students in an ongoing land use matter but also provides “real time” benefits to the community by fostering education and dialogue before a land use decision is made. My proposal is to integrate student writing requirements with real time blogging about community land use proposals.
As one recent example, a student of mine named Ada Montague wanted to fulfill her advanced writing requirement through a traditional student paper. She proposed writing on the issue of private investment companies acquiring municipal water supplies. Her topic was inspired by a real life example--the pending purchase of the City of Missoula’s water supply by The Carlyle Group, a multinational private equity investment firm. After putting our heads together and meeting with a colleague in the School of Journalism, we decided to transform the writing proposal into a blog format where the student would write a series of informational pieces on the purchase and cover in "real time" the proceedings of the Montana Public Service Commission as it reviewed the proposed sale. The journalism professor would train the student in the basics of journalistic blogging and help with the technical aspects of uploading content. (Thank you, Prof. Nadia White). I, in turn, would review the postings for their legal content in much the same way as I would review a traditional AWR. The stories would be housed on the School of Journalism’s Et Al. Blog, which is a site dedicated to environmental legal news. Here is the link with the end result: http://etalnews.org/missoulawater/.
The blog’s impact exceeded our expectations. The community began using the site as the go-to source for information on the sale, and the quality of the public discourse shifted from fear-based to fact-based. The key players in the proceeding read the blog for analysis and shared items for posting. When the student gave a final presentation of her work (a requirement for our AWR), the large audience included a member of the Public Service Commission, who was there to glean insights on the issues. And the site’s content remains in place for use by other communities that may face a similar type of private equity purchase.
Needless to say, it was a powerful teaching experience to supervise this project in collaboration with my journalism colleague. Most importantly, I realized that there is no need to relegate our students' work to the standard law paper that never sees the light of day, or that reaches completion well after a land use issue has resolved itself. Both our students and our community can benefit from embedding these capstone writing experiences within the living discourse of the community. My concluding questions are: Have others tried such “real time” experiences, and what potential do you see to collaborate regionally and nationally to expand upon this local idea?
Monday, September 24, 2012
Alexandra B. Klass (Minnesota) has posted Takings and Transmission, forthcoming in the North Carolina Law Review. The abstract:
Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.
I think you could make some analogous analysis about the newly-hot issue of eminent domain and pipelines, for example the controversy over the acquisition of rights of way for the Keystone Pipeline. Interesting issues.
Sunday, September 23, 2012
Back in January I noted that there was a hydraulic fracturing issue likely to spring up over time: whether state bans on inter-state transport of fracturing wastewater would result in dormant commerce clause violations. The issue has now hit the front page in New Jersey where last week, Gov. Christie explicitly cited the dormant commerce clause as his reason for vetoing a bill passed by New Jersey's legislature that would have banned fracturing wastewater from being deposited in New Jersey. Gov. Christie's reasoning is here, noting that New Jersey is unlikely to ever be a fracturing state, and so any fracturing wastewater would necessarily come from out of state. Response from the legislature is here, citing to a New Jersey Office of Legislative Services opinion stating that the law did not violate the dormant commerce clause. (I was not able to find the opinion on-line immediately, but have requested it from OLS and will post a copy when and if I receive it.) Will Christie's explicit reference to the dormant commerce clause heighten the constitutional challenges to fracturing wastewater bans? Might a seemingly obscure dormant commerce clause claim be the first fracturing issue to make its way to the U.S. Supreme Court, whether from New Jersey or another state? Stay tuned!