Saturday, April 27, 2013
Day two of ALPS is starting off with a bang. It was pretty hard to choose among panels this morning, but I just can't resist a discussion of takings.
Steve Eagle of George Mason presented The Ptolemaic Evolution of Penn Central. I loved his likening of Penn Central and its progeny to Ptolemy's increasingly complicated theories to explain retrograde planets orbiting the Earth. He demonstrated that the Penn Central test is more complicated than most people describe it. He argues that it should be considered a 4-factor test. He plans two papers on this subject.
Alex Klass of Minnesota presented Takings and Transmission. She examined the eminent domain authority being exercised by private utilities, particularly for expansion of wind energy and the associated transmission lines. This talk is based on a paper forthcoming in North Carolina Law Review.
Sally Richardson of Tulane presented Adverse Possession, an Ex-Ante Perspective. Sally began by remarking that it is a right of passage for property professors to write about Adverse Possession because frankly it is just such a weird and fascinating doctrine where we let "wrongdoers" win. While most writings seek to justify Adverse Possession, she questions the possession requirement of adverse possession and suggests allowing people to register their intent to adversely possession a piece of property. This is an early work in progress that promises to be a fun read.
Chris Serkin of Brooklyn (soon to be Vanderbilt) presented Passive Takings: Government Inaction and the Duty to Protect Property. The title should be enough to peak your interest. In this early work in progress, he suggests that where the state has a duty to act it can't avoid takings litigation by failing to act. This is of course interesting in the context of climate change. Governments at all level have expressed hesitation about enacting climate change adaptation policies for fear of takings claims. Chris argues that in some cases, the governments' decision not to take action should be equally subject to scrutiny.
Friday, April 26, 2013
With so many sessions going on simultaneously, I don't always get to see my co-bloggers present their work. BUT I was lucky enough to hear about Matt Festa's current project as well as listen to a couple of talks on my well known obsession, conservation easements.
Festa presented a work in progress that he is calling "Property Rights and the Pulic Trust." I have two public trust doctrine projects sitting on my shelf so it is an area that I have been thinking about a lot. I love Matt's project, which examines the Severance v. Patterson case in Texas and legislative responses to it. He ponders the legality of the proposed legislative response that would expand the land considered to be covered by the public trust doctrine in Texas. Can't wait to see how this develops.
Douglas Harris from UBC presented "Title Registration, the Distribution of Risk, and the Abolition of Notice." I have been intrigued by issues of notice associated with servitudes and always have fun with this topic when teaching property law (yep, my class is a hoot). Douglas Harris explained to us how the rules requiring notice. Essentially, the movement is away from a doctrine of notice and toward rules simply requiring registration of title. Exceptions remain for fraud usually. He presents a compelling story about the Land Title Act in British Columbia leaving folks there in a confusing state about whether notice requirements co-exist with the land titling act. Generally, these ideas connext to issues relating to land recordation system. I often hear folks argue that we can do with some of our common law constraints on property because our land recording systems are so much better these days. Frankly, I get nervous when people say that because land recording is still rife with errors (particularly with recordation of conservation easements and other servitudes).
Gerald Korngold (whom I was delighted to finally meet in person) presented "Governmental Conservation Easements: Balancing Perpetuity with Democracy." Gerry is looking at governement conservation easements, by which he means conservation easements held by governement agencies. He asserts that these conservation easements have some benefits over those held by land trusts. I eagerly await his forthcoming article on this topic. I think alot of government conservation easmeents but I generally think of those as conservation easements that are created under governement programs. I haven't quite wrapped my head around the difference that emerge solely based on who is the holder. I can see a good case for asserting better transparency and accountability though!
Nancy McLaughlin of Utah presented "Perpetual Conservation Easements: Contemporary Issues and Challanges."Although she spoke last, she won the contest for most interesting powerpoint (a good strategy for a 4pm talk). Nancy focused on donated conservation easement and tax law. Although not a tax prof, we property and land use folks warmly welcome her presence and often highlight her research. She showed some shocking numbers in terms of the generous level of tax deductions landowners are getting and a huge number of challenges coming through the tax courts.
The Association of Law, Property, and Society has presented its annual award to Carol Rose. She is being recognized for both her scholarship and her mentorship -- two areas where she has unquestionably excelled. Like many property and land use scholars, my own work and teaching has been influenced by her writings.
At her lunchtime talk today, she explored the dignatory aspects of property. A few interesting thoughts:
- Homeownership is all about taking risks and maybe we should be rethinking the value of home ownership. (See her new book: Saving the Neighborhood).
- Ideas of dignity are connected to preserving a location of undisturbed freedom where others cannot intrude
- Land titling programs are redstribution of wealth policies, but some of the goals of the land titling policies may not materialize becuase squatters' rights and connections to their homes are different than other type of homeownership (even if you give them title). Rose suggests there may be better programs for redistribution if that is the real goal.
- Property rights are growing but facing pushback. Many examples in the IP realm with patenting life (animals, genes, etc.) and copyright of creative work. But some folks argue that these strong IP rights actually stifles creativity and hampers research.
- Crowdsourcing efforts show examples of useful activities that are not driven by property interests. More akin to gifts than any other property form
- Property can get in the way of good things.
I just looked around and realized that all of us land use bloggers are in Minnesota at ALPS Annual Meeting (Association of Law Property and Society). There are also several past and future guest bloggers gathered here. The progam looks great and things are just getting underway here with a fascinating panel on different approaches to doing property research. Expect to hear more from the gang over the next few days with some live blogging and tweeting (@JessicaOwley).
Thursday, April 25, 2013
I am sad that I won't be back in Buffalo tomorrow for an amazing event the law school is organizing in conjunction with EPA and local environmental activists and community organizers. Stemming from a Healthy Home Practicum taught by Kim Connolly, the event will involve discussion of improving our local Western New York communities. More than a symposium, this forum will explore ideas with a goal of actually implementing plans to improve environmental and public health here in Buffalo.
More Info:Local activists, academics, community organizers and federal experts will exchange ideas toward making Western New York’s homes and communities healthier at a daylong environmental justice forum on April 26. The gathering, titled “An Environmental Justice Forum for Buffalo Homes and Neighborhoods,” will run from 9 a.m. to 2 p.m. at the University at Buffalo’s Clinical and Translational Research Center, 875 Ellicott St.
Matthew Tejada, recently installed as director of the Environmental Protection Agency’s Office of Environmental Justice, will open the forum. William J. Hochul '94, US attorney for the Western District of New York, will discuss the importance of enforcement in addressing healthy homes matters. Other presenters include environmental justice experts from the EPA’s headquarters offices, the U.S. Department of Housing and Urban Development, and the Agency for Toxic Substances and Disease Registry.
The program’s sponsors include SUNY Buffalo Law School and its Healthy Homes Legal Practicum, the Community Foundation for Greater Buffalo’s Green and Healthy Homes Initiative, Neighborhood Legal Services, UB’s Civic Engagement and Public Policy Research Initiative and the UB Office of Sustainability.
Students participating in the Law School practicum provide legal support to the National Green and Healthy Homes Initiative, which has chosen Buffalo as one of 17 pilot cities for its work in promoting safer housing. Among the work produced by practicum students is 36-page publication called “A Neighborhood’s Continuing Evolution: An Environmental Justice Walking Tour of Buffalo, NY’s West Side.”
Professor Kim Diana Connolly, who directs the Law School’s clinical program and is one of three instructors of the practicum, says of the conference: “This forum will showcase the on-the-ground work being done by SUNY Buffalo Law School students and faculty that’s changing lives here in Buffalo while becoming a model for next-generation environmental justice elsewhere in the nation.”
The conference recognizes the presence, especially in the City of Buffalo, of an aging and deteriorating housing stock, environmentally unhealthy conditions in many neighborhoods, as well as high poverty and unemployment rates. Many families live in homes or communities that are unhealthy, unsafe and not energy-efficient.
Though local groups have been working to address these problems, their efforts are incompletely coordinated. The forum seeks to begin to develop “a truly sustainable strategy for healthy homes and communities that can become a model for other cities.”
Wednesday, April 24, 2013
It's been a whirlwind of conferences for me this month. Two weeks ago I was at GW. Last week, we had a conference at Buffalo. Now, I am sitting in sunny but snowy Minnesota attending the 2013 Consortium Annual Conference, entitled "Legal & Policy Pathways for Energy Innovation."
My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.
Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!
And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.
The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.
Sunday, April 21, 2013
The video from the day-long Idaho Law Review symposium on hydraulic fracturing, which was held March 29, is now available for free online. Papers and Powerpoints for the symposium can also be downloaded at the same site. We had a great group of speakers and, by sharing these sessions for free, we are hoping to make these informative talks as widely available as possible. Check it out!
Stephen R. Miller