Wednesday, October 1, 2014
In early August, microcystin from toxic algal blooms in Lake Erie forced officials to issue a “do not drink” order for all municipal water users in Toledo. The drinking-and-cooking ban affected nearly 400,000 people and lasted for two days, leaving residents scrambling for bottled water. Given that some 40 million people in the U.S. and Canada rely on the Great Lakes for drinking water, Toledo’s experience was something of a wake-up call for leaders throughout the region.
Last week, mayors and officials from cities throughout the Great Lakes and St. Lawrence watersheds met at the Mayors Drinking Water Summit in Chicago to discuss measures needed to prevent the kind of pollution that poisoned the water in Toledo. A biggest culprit in polluting the water is excess phosphorus loads in runoff, which feeds toxic algal blooms. The mayors called for concrete steps to address both agricultural and urban sources of runoff:
- For the EPA to establish a common limit and an emergency response protocol for microcystin in drinking water for the Great Lakes and St. Lawrence region;
- For Great Lakes states to establish a phosphorus open lake water quality standard;
- For agriculture to further reduce the runoff from farms into Lake Erie, including better nutrient management and application of the ‘4R Nutrient Stewardship’ program;
- For municipalities to further reduce phosphorus loadings through more green infrastructure, better treatment plant operations, and pollution prevention measures.
One aggravating factor in the spikes the increasing prevalence of high-precipitation rain storms occasioned by climate change. Heavy storms strip fertilizer from fields and cause municipal sewer systems to overflow, causing large spikes of excess phosphorus to flow into the Great Lakes. Cities sorely need upgrades to antiquated sewer systems that overflow during heavy rain events. In the meantime, cities can better prepare for these intense storms by working to increase the amount of green infrastructure—green roofs, wetlands, and vegetation—to capture rainfall as it occurs and filter runoff.
Last week municipal leaders and environmental groups stood together in calling for swift and sensible action. What happens from here remains to be seen, but if there is one environmental issue that pretty much everyone can get behind quickly it’s that the water that flows from the tap should be safe enough to drink.
On another note: this is my last guest post here at Land Use Prof Blog. Many thanks to Jess Owley and Stephen Miller for inviting me into the conversation.
~Celeste B. Pagano, DePaul University College of Law
Tuesday, September 16, 2014
As the implementation phase of last year’s Illinois medical marijuana statute gets underway, the real action now is happening at zoning boards and city councils around the state. Famously the nation’s strictest medical cannabis law of the twenty-four enacted to date, Illinois’ statute allows for the licensing of up to 22 marijuana cultivation sites and up to 60 dispensaries, distributed among specified geographic regions throughout the state through a competitive licensing process. Applications for cannabis entrepreneurs became available on August 14 and are due next week.
Among the application requirements are a showing that the proposed cultivation facility or dispensary complies with all local building and zoning codes. In addition, an applicant can earn bonus points for putting in place a Community Benefits Plan and for a showing of local support for the proposed location. While municipalities cannot ban cannabis facilities outright, they may limit them to specific districts or impose reasonable conditions on their permits. The State’s own prohibition on dispensaries within 1,000 feet of a school or nursery renders it very unlikely that tony chiefly-residential suburbs will ever see cannabis facilities in their towns; nevertheless, these towns (reluctantly) amended their zoning codes to allow for the possibility. Other jurisdictions allow cultivation facilities as of right in agricultural areas but subject dispensaries to permit conditions—measures typically aimed at addressing the additional security concerns of businesses potentially housing large quantities of drugs and cash. In Chicago, despite some initial efforts on the part of at least one alderman to confine dispensaries to manufacturing districts, dispensaries are now allowed in almost any business, commercial, mixed use, or downtown service district.
Now that the fierce competition for licenses is genuinely underway, municipalities are busy approving those special use permits. Local hostility towards the facilities appears to be reversing as authorities consider the economic benefits that medical cannabis might bring to their cities and towns. As explained by Joliet Mayor Tom Giarrante and reported in the Joliet Herald News, “It’s kind of like gambling. If it's going to happen, I want it in Joliet so we get the sales tax and jobs." Some savvy jurisdictions are negotiating with cannabis entrepreneurs to offer a letter of support in exchange for benefits to the city. The far-northern Illinois city of McHenry has negotiated a Contribution Agreement with one grower, under which the mayor will write a letter of support of the grower’s license application in exchange for payments to the city of at least $20,000 per year, should that grower win the coveted state cultivator’s license. Not to be outdone, last night the City Council of Batavia unanimously authorized that town’s mayor to send a letter of support in favor of another applicant for a proposed cultivation facility there. McHenry and Batavia are both located in the same 5-county district in Northern Illinois, which under the legislation will house only one such facility. Similar rivalries are taking place all over the state, including in counties that have hedged their bets by amending zoning in such a way as two approve two facilities, even though no more than one of those will win the coveted license. (Among those, Will County, home of the City of Joliet, whose optimistic mayor is quoted above.)
Wherever Illinois' 60 medical marijuana dispensaries and 22 cultivation facilities are eventually located, it looks like patients will not be the only ones to benefit. Medical cannabis will be a boon to business in Illinois—not to mention a boon to government. The non-refundable state application fee for a cultivation facility license is $25,000; operating fees for successful licensees will total in the hundreds of thousands annually. And due to a little local clout in the decision-making process, counties and municipalities may end up benefitting as well.
~Celeste Pagano, DePaul University College of Law
Saturday, September 13, 2014
Wednesday, May 21, 2014
In an interesting election twist, organic farmers in Jackson County, Oregon, spearheaded a county-wide ban on crops containing genetically modified organisms. You can read more in the Idaho Statesman, and on the environmental blog Grist.
Jamie Baker Roskie
Tuesday, April 8, 2014
Nancy McLaughlin (Utah) has posted Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?, 2013 Utah L. Rev. 687. Here's the abstract:
April 8, 2014 in Agriculture, Conservation Easements, Environmental Law, Environmentalism, Federal Government, Historic Preservation, Scholarship, Servitudes | Permalink | Comments (0) | TrackBack (0)
Monday, April 7, 2014
Community Law Center, Inc. and University of Maryland Francis King Carey School of Law are hosting the 2014 Urban Agriculture Law Conference on September 19, 2014 in Baltimore to share information and best practices in urban agriculture laws, policies and practices across the country. We are currently accepting proposals for conference papers, presentations, and workshops. Click here for the Call for Papers and Presentations. To download the application, you need to click here.
Located in the heart of Baltimore, the 2014 Urban Agriculture Law Conference will bring together national and local leaders, legal practitioners, and scholars who are addressing the diverse roles of urban agriculture in the renewal of urban communities.
All proposals must be submitted by June 15, 2014. Community Law Center will notify all selected speakers by July 15, 2014 of their acceptance and time slot.
Sarah Schindler (Maine) has posted Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement, 2014 Wisc. L. Rev __ (forthcoming). Just in time for the finalizing of my presentation on unauthorized vacant property use for next month's ALPS conference (in Vancouver!). Here's the abstract:
It is becoming more common in many urban and suburban areas to see chickens in backyards, vegetable gardens growing on vacant, forclosed-upon, bank-owned property, and pop-up restaurants operating out of retail or industrial spaces. The common thread tying all of these actions together is that they are unauthorized; they are being undertaken in violation of existing laws, and often norms. In this essay, I explore ideas surrounding the overlap between food policy and land use law, and specifically the transgressive actions that people living in urban and suburban communities are undertaking in order to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate.
Monday, March 10, 2014
There has long been debate fluttering around about whether conservation easements are charitable trusts. A recent opinion from Wyoming has me thinking about charitable trusts and conservation easements from a different viewpoint.
In Davis Foundation v. Colorado State University Research Foundation, the Supreme Court of Wyoming examined a transfer of property from the Davis Foundation and family jointly to CSU and University of Wyoming. The working ranchland was donated to the school as a way to provide a living laboratory for students to learn ranching and to provide revenue for the programs (through ranching revenues). In the process of conveying the land, the Davis Foundation also conveyed a conservation easement over the property to The Nature Conservancy. The conservation easement purports to protect the scenic and historical resources of the property and restricts possible property uses to ranching, farming, and education.
Putting aside whether the conservation easement itself was a charitable trust (and without information about whether it was sold or donated to TNC I am not gonna make a call on that one), the court found the existence of the conservation easement integral in its analysis of whether the Davis Foundation created a trust when donating the property to the educational institutions. Basically, the schools now want to sell the land (subject to the conservation easement). If the donation was a gift to the schools, they have the ability to do with the land as they see fit (within their limits as state organizations or non-profits) BUT if it is a charitable trust, the schools actions with respect to the land are more limited. The Wyoming Supreme Court held that no trust was created. It reached that conclusion in part because of the existence of the conservation easements. The court explained that the conservation easement limited what the land would be used for, not the gift to the schools. Structures of donations like this are not unusual. We see examples in many states of landowners donating fee to one entity and a conservation easement to another. This may be particularly common where the fee is donated to a government entity. This case indicates that the presence of the conservation easement may serve as evidence that the donation did not create a trust. Of course, there are no blanket rules here and one would have to look at each conveyance to determine whether a trust was intended. I find this fascinating. If you donate parkland to a city but also put a conservation easement on the land because you don't totally trust the city, you may have made the donation look more like a gift than a trust (which may not have been your intention!).
Tuesday, November 12, 2013
Stephanie Maloney (Notre Dame Law Review) has posted her note entitled Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture, 88 Notre Dame L. Rev. 101 (2013). Here's the abstract:
This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.
Wednesday, June 26, 2013
As mentioned in my previous post, I have already done a lot of traveling this summer. Like most nerds people, I always keep my eye out for interesting land use patterns whereever I go. When I travel to Norway, I eschew the typical tourist locales and staying with my friends and family from when I was a high school exchange student there over 20 years ago. This puts me in the county of Ostfold and usually in the town of Rygge. Norway's mainland is made up of 19 counties, and Ostfold is one of the smaller counties (ranked 17... about the size of Rhode Island) and one of the densest (ranked 4 ... roughly as dense as Minnesota). I think of Ostfold as an area of rolling hills and small farms. Norwegians see that but also characterize it as an area of dense population with big towns (big in Norwegian terms is over 20,000 people). I love the look of the place and enjoy the result of rules protecting both agriculture and environmental amenities (doesn't hurt that the state has a lot of money and has kept out of the EU).
As with much of the developed world, there has been a push in Norway to buy local goods -- especially food products. Some of the food companies have therefore started advertising campaigns highlighting the use of local products and even using images of local farms and farmers on the packaging. (I am particularly fond of the norwgian-style sauerkraut that bears the image of my host brother.) I was looking at a similar style advertizement on the back of the milk carton one morning and the difference in land use and agricultural practices hit home. Tine, the cooperative that produces most of the milk in the country, was boasting that the milk I was drinking came from cows right there in Ostfold (and profiled one of the farms). What was notable about the statement is that it said there were over 2,400 dairy farms in Ostfold. That's right, 2,400 dairy farms in one of the most densely populated smallest counties where dairy farms are not even a dominant land use. Having grown up in Wisconsin and lived in California (USA's top producing dairy states), this shocked me. I am used to dairy farms averaging 135 cows (with this number steadily growing as farms consolidate) and hundreds of acres. While I couldn't find any data on Norwegian dairy farms, my family there was unsurprised by the statistic explaining that dairy farms only have 5 or 6 cows. Admittedly, I know nothing about dairy farming or agriculture economics but from a land use stand point, it makes a landscape that is fun to look at.
Thursday, April 11, 2013
Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.
My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.
I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.
- Jessie Owley
Friday, January 25, 2013
A new article in Landscape and Urban Planning demonstrates that tourism can play a strong role in shaping landscape, indeed more so than local residents might realize. What I find interesting about the study is that it also shows conversion of land from agriculture to tourism resulting in an increase in economic benefit and ecosystem services. It may be hard to apply these findings outside of the Italian Island where the research was conducted, but the lessons about perceptions and planning models extend elsewhere.
Roberta Aretano, Irene Petrosillo, Nicola Zaccarelli, Teodoro Semeraro, Giovanni Zurlini, People Perception of Landscape Change Effects on Ecosystem Services in Small Mediterranean Islands: A Combination of Subjective and Objective Assessments, 112 Landscape and Urban Planning 63 (2013).
ABSTRACT: Humans constantly modify their environment to better fit their needs. These changes are even more important in small Mediterranean islands, where the flow and type of ecosystem services (ES) is constrained by insularity and heavily exploited by economic activities. We evaluated the dynamics of ES from 1954 to 2007 linked to the changes of the landscape of the Vulcano Island (southern Italy) and related such transformation to the perception of the local communities. We estimated the changes in the total economic value of ES and we coupled this objective assessment with a survey among inhabitants to measure the perception of driving forces and ES. The results show that agriculture was replaced by tourism, which simultaneously has profoundly affected the landscape and brought economic benefits to local population. Despite the urban-sprawl related to tourism development there is an increase of the flow of ES over time because of the conversion of some land-cover classes into others that provide a greater amount of ES. Local communities are aware of landscape and ES dynamics, but they do not perceive tourism as a driving force, which affects the natural attractiveness and cultural identity of their island. This approach integrates a commonly accepted objective technique to assign value to ES, with a subjective assessment taking into account how local people value the flow of ES. Effective strategies for ES management and governance need to address and incorporate local population expectations so to empower local stakeholders in the achievement of higher level of quality of life.
Tuesday, December 18, 2012
Sometimes it is the studies with obvious sounding results that are the most helpful. A recent study of protected forest areas in Costa Rica examined levels of regrowth in those areas. Previously studies had really only assessed whether protecting areas prevented degradation. Happily, the study reveals that not only do you prevent deforestation and degradation by setting up protection areas, you also get some reforestation and improved forest health. Interestingly, the results did not vary by level or method of protection. Just setting aside the land made reforestation more likely. (Unless you are at a university or employer with access, you may have to pay for the article, which will appear in the next edition of Conservation Letters.) Abstract Below --
Global efforts to protect forest biodiversity and ecosystem services rely heavily on protected areas. Although these areas primarily aim to prevent losses from deforestation and degradation, they can also contribute to restoration. Previous evaluations of protected area impacts focus on avoided deforestation and fires. In contrast, we focus on the additional regrowth induced by Costa Rica's renowned system of parks and reserves. We use a quasi-experimental empirical design to control for confounding baseline characteristics that affect both regrowth and the assignment of protection. Between 1960 and 1997, an estimated 13.5% of previously unforested lands inside protected areas reforested because they were afforded protection. The level of additional regrowth does not vary by the strictness of protection. As in previous studies of protected area impacts on avoided deforestation, estimators that do not account for non-random assignment of protection can overstate protected areas’ impacts on regrowth by nearly double.
- Jessie Owley
Monday, December 17, 2012
Apparently, new studies are arguing that we have more than enough farmland worldwide to feed everyone. The conclusion then becomes that we can start converting some of that farmland to protected natural space. Perhaps it is because the study is assessing farmland worldwide (instead of considering its distribution), but these numbers seem hard to accept. (also unclear if the report fully considers climate change implications). If this assessment is correct, what should that mean for all the programs across the nation working to protect ag land?
by the way, the UN has reached a very different conclusion assessing the need for many millions of addition acres.
Tuesday, September 11, 2012
Contributing to the growing national dialogue on agriculture and food law, the University of Montana’s Land Use Clinic recently issued a report on agricultural protection through local planning, regulation, and incentives. While portions of the report are specific to Montana, other portions are more national in scope, discussing a variety of communities that have used land use planning techniques to not only protect agricultural lands from development but also build agricultural support systems that keep producers in operation.
The Montana Constitution is unique in requiring state lawmakers to “protect, enhance, and develop all of agriculture” (Mont. Const. art. XII, § 1), and Montana is among a small handful of states in expressly requiring mitigation of impacts to agriculture during subdivision review after submission of an Environmental Assessment (Mont. Code Ann. § 76-3-603, -608(3)). These legal protections were implemented in the early 1970s but have yet to be fully carried out by Montana local governments, many of which are now facing the reality of dwindling agricultural lands and growing demand for local food supply. A Missoula Independent story titled "Digging In" profiles one case study that is representative of the larger issue.
Agricultural protection is revealing itself to be contentious in Montana, with property rights interests pitted against interests in local food supply and the protection of agricultural heritage. Last month, I attended a community listening session that was packed with a divided crowd. Participants were often emotional, but also quite thoughtful, in explaining the dilemma. Dozens of young farmers belonging to the Community Food Agricultural Coalition sported green t-shirts that read “I like AG in my culture.” These new farmers expressed a strong desire to pursue agriculture as their livelihood but need significant help locating farmland on which to operate. This proves difficult because they are not born into farming families and thus unlikely to inherit agricultural property. The new farmers also need older operators to train them in the trade. Farmers market representatives added their perspective about the growing demand for local food as a key part of the economy. Even 4H kids stood up and said “I want to protect agriculture!”
Existing farmers, often nearing retirement age, admonished the audience that their farmland is their “IRA”---the sale of farmland to developers is often their sole source of retirement income after years of hard labor working the land. To keep the land in production, they argue, requires that the community pay them to do so. Mitigation requirements, they contend, are simply taking more off the farmers’ backs. Representatives from the realty organizations argued that people also have a right to housing, and that urbanizing communities will need to look beyond their boundaries for food supply.
The Clinic’s report offers a possible road map for local governments to begin the long process of creating robust agricultural protection programs that balance these competing interests. We were lucky enough to receive a grant from the Pleiades Foundation to print and disseminate this report to local governments. If there are case studies that you believe should be mentioned in the report, we welcome additional suggestions before the final version goes to print.
Sunday, August 12, 2012
I am writing this blog post from lovely Kona on the island of Hawaii, where I am in town for the next week for the wedding of two good friends. And, as luck would have it, I happened upon an interesting land use topic on my first full day here. The National Historic Park Pu`uhonua O Hōnaunau, also known as Place of Refuge, was a designate piece of land where law breaking civilians, or warrior during times of war, could come and seek protection from the penalty of death.
The park, which also include royal grounds adjoining the Place of Refuge, crosses over three Ahupua‘a, traditional Hawaiian land divisions that run in narrow pie-shaped tracts from the ocean to the mountains. A number of these separate tracts would be under the control of an individual chief, and each Ahupua’a was ruled by a designated subordinate. The boundaries of the Ahupua’a were shaped by streams or other natural features. Each Ahupua’a was designed to be a self-contained area, which provided access to the sea for fishing and salt, to arable land for crops, and to the forests and mountains for resources. The sizes of Ahupua’a would vary to ensure provision of adequate resources, resulting in wider tracts in less plentiful areas.
The Ahupua’a were largely split through land redistribution in the nineteenth century, but some remained intact under private ownership for some time. In addition to being a system of land division, the Ahupua’a provided for cooperative use of the land and an emphasis on carefully protecting resources needed for survival. Some contemporary groups are seeking to retrieve elements of the Ahupua’a system in the interests of sustainability and localism.
According to a Park Ranger I spoke with, it is believed that the Ahupua’a system was derived from Polynesian methods of land and social division. I have heard of similar methods of dividing land into narrow tracts providing access to a range of resources in places including parts of Guyana and West Africa.
Tuesday, August 7, 2012
I just can't enough of Buffalo these days. Yesterday, I posted about our "zombieness" and today I learned of something fun being done with some of our vacant land (up to 20% of the land in the city of Buffalo is vacant -- no that is not the same thing as open space). Some Brooklyn-based architects are suggesting we turn the land into artfarms. Never heard of artfarms? Me neither. The architects describe them as sculptures that serve as agricultural grow structures. Urban farming meets local artists.
"These above-ground, vertically designed sculptures will provide a means to produce fruits, vegetables and flowers for the surrounding community, but they will also provide a creative basis for expansion. In essence, the concept of Artfarms is to create and erect devices that are not just aesthetically appealing, but that will serve a greater purpose by triggering redevelopment."
I hope they find some funding and support to make these happen. Nothing tastes better than a local ogranic tomato grown on a structure that belongs at Burning Man.
Tuesday, July 24, 2012
These authors create a model to figure out which land uses optimize species protection while maximizing economic output.
Analytical Solutions to Trade-Offs between Size of Protected Areas and Land-Use Intensity from Conservation Biology by Van Butsic, Volker C. Radeloff, Tobias Kuemmerle, and Anna M. Pidgeon
Land-use change is affecting Earth's capacity to support both wild species and a growing human population. The question is how best to manage landscapes for both species conservation and economic output. If large areas are protected to conserve species richness, then the unprotected areas must be used more intensively. Likewise, low-intensity use leaves less area protected but may allow wild species to persist in areas that are used for market purposes. This dilemma is present in policy debates on agriculture, housing, and forestry. Our goal was to develop a theoretical model to evaluate which land-use strategy maximizes economic output while maintaining species richness. Our theoretical model extends previous analytical models by allowing land-use intensity on unprotected land to influence species richness in protected areas. We devised general models in which species richness (with modified species-area curves) and economic output (a Cobb–Douglas production function) are a function of land-use intensity and the proportion of land protected. Economic output increased as land-use intensity and extent increased, and species richness responded to increased intensity either negatively or following the intermediate disturbance hypothesis. We solved the model analytically to identify the combination of land-use intensity and protected area that provided the maximum amount of economic output, given a target level of species richness. The land-use strategy that maximized economic output while maintaining species richness depended jointly on the response of species richness to land-use intensity and protection and the effect of land use outside protected areas on species richness within protected areas. Regardless of the land-use strategy, species richness tended to respond to changing land-use intensity and extent in a highly nonlinear fashion.
Tuesday, July 10, 2012
News of a great Colloquium being planned for next year at the University of Maine School of Law, via Sarah Schindler:
The Maine Law Review invites you to participate in its 2013 Food Law Colloquium. The Colloquium presents an opportunity for discussion and debate about the legal architecture of food systems in Maine, the United States, and beyond. To complement the Colloquium, the spring volume of the Review will be devoted to high-quality legal scholarship focusing on a wide range of food law topics.
The Maine Law Review seeks submissions of papers for oral presentation at the Colloquium and for publication in its Spring 2013 volume. We invite contributions in the form of articles or essays addressing any aspect of food law. Topics may include, but are not limited to: local food ordinances and states’ rights movements; the effects of the 2012 Farm Bill on small-scale agriculture; food safety and security; judicial responses to competing interests of seed patent owners and farmers; the challenges of securing financing for farmland conservation; administrative hurdles confronting the seafood industry; cooperatives and securities law; comparative analyses of food law frameworks; and emerging issues in food law. Although traditional, full-length papers are welcome, we principally seek shorter essays (roughly 8,000 to 15,000 words, including references) that will stimulate lively discussion at the Colloquium.
Draft abstracts and queries may be addressed to Aga Pinette, Editor-in-Chief, at firstname.lastname@example.org, no later than September 30, 2012. Please accompany submissions with a curriculum vitae, and indicate your willingness and availability to travel to Portland, Maine, to participate in the Colloquium in February or March 2013.
Wednesday, May 16, 2012
Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation. Legal commentators have analyzed it as an environmental issue. As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights. Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land. The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.
Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.
“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”
The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .
Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”
This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas. Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:
Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.
The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good. In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.
May 16, 2012 in Agriculture, Economic Development, Eminent Domain, Environmental Law, Environmentalism, History, Houston, Judicial Review, Oil & Gas, Property Rights, Scholarship, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)