Friday, August 26, 2011
Robin Kundis Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?, forthcoming in Environmental Law. The abstract:
The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.
This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.
Monday, May 23, 2011
Catherine LaCroix (Case Western) has posted Urban Green Uses: The New Renewal, published in Planning and Environmental Law, Vol. 65, No. 5, p. 3, May 2011. The abstract:
As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability of land banks for cleanup of contaminated properties? Are cities required to provide municipal services to unpopulated areas within their boundaries? In the unlikely event that a city uses eminent domain to relocate owners of sparsely-populated areas, what is “just compensation” for this action? What issues might arise with zoning land for less intensive uses such as urban farms? Some of the answers are emerging. For example, state authorizing legislation has been enacted to establish the type of active land bank successfully implemented in St. Louis, Cleveland, and other cities, and it appears that cities need not provide infrastructure and services throughout their land area, though they are best advised retain any rights of way or easements that may be needed in the event of future development. Other questions – both legal and practical - have yet to be fully answered, as rust belt cities lead the way in what might tentatively be called "The New Renewal" – a form of sustainable development that dovetails well with the policies of cities that seek to combat and adapt to climate change.
May 23, 2011 in Agriculture, Climate, Density, Eminent Domain, Environmentalism, Green Building, Local Government, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 11, 2011
We've posted a few times about the curious topic of urban chickens. The issue really crosses a lot of lines between the public-health origins of zoning; class; sustainability; and modern trends like local food.
Local chickens are being debated in my hometown of Albany. Here is the story from the Times Union: Chickens Join City's Urban Sprawl. Apparently it's up to the Mayor now. The reporter also has a blog post asking for feedback here.
Thanks to Helen Festa for the link. Interestingly, Albany Law's Patricia Salkin mentioned this controversy last week when she was telling me that out of all of her (many!) recent pieces, it is her article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, that has gotten the most SSRN downloads. There must be a lot of passion out there about urban chickens!
Monday, April 25, 2011
Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review. The abstract:
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
A significant paper on drought and the increasingly alarming state of U.S. water resource law.
Wednesday, April 6, 2011
My friends at the Madison-Morgan [Georgia] Conservancy have just published and posted the Farmeander Map. This is a cool driving tour tool for visiting agritourism sites (including organic farms, berry and flower farms, and natural meat operations) in Morgan County, along with fun places to stay and a schedule of festivals throughout the year.
For many smaller agriculture operations in Georgia, agritourism is critical for economic viability. It also helps we city-dwellers create and maintain relationships with the folks who produce our food. While "Fameander" is a new (and trademarked) term, there are many agritourism programs around the country, including "Farmer for a Day." So, wherever you are, consider "farmeandering" around to find out what's what with your local food supply.
Jamie Baker Roskie
Wednesday, March 23, 2011
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 15, 2011
I must admit that whenever I see an announcement of a new article by Prof. Patricia Salkin (Albany), I make sure to do a thorough check of the blog archives because she is so prolific (putting the rest of us to shame) that I don't want to accidentally double-post. But this one seems pretty unique, and because we are on record for posting about urban chickens, the local food movement, and agricultural urbanism, it's great to see this timely article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, published in Zoning and Planning Law Report, Vol. 34, No. 3, p. 1, March 2011. The abstract:
As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law.
It's a really interesting concept and one that we will be hearing much more about in the near future. I have friends in town who live next to a would-be urban chicken spot (so I hear both pro and con about it), and it's an innovative approach to modern land use, and it needs regulatory attention.
Thursday, February 17, 2011
As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring.
- Jessica Owley
Monday, January 31, 2011
Thanks, Matt, for the wonderfully kind introduction. I am excited to be guest-posting on the Land Use Prof blog. Despite the flood of emails (and steady stream of students and professors wanting an associate dean's immediate attention), I read the Land Use Prof blog every day, and find the posts both helpful and thought-provoking. It is a real honor to be a part of the great work that y'all do!
For my first post, I want to share some insights from Judith Welch Wegner's Boehl Distinguished Lecture in Land Use Policy at the University of Louisville this past Thursday, January 27, and to highlight the value of a land-use lecture series generally. Professor Wegner is well known in legal education for her past roles as a 10-year Dean at the University of North Carolina-Chapel Hill, President of AALS, member of the Order of the Coif Executive Committee, and Senior Scholar at the Carnegie Foundation for the Advancement of Teaching. In the land use field, she is known as the Burton Craige Professor of Law at the University of North Carolina-Chapel Hill and for her especially influential article "Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals," 65 N.C. L. Rev. 957 (1987). I predict that she will play a major role in reviving interest in annexation as a land use legal and planning issue.
Judith gave her Boehl Distinguished Lecture in Land Use Policy on "Annexation, Urban Boundaries, and Land Use Dilemmas: Learning from the Past and Preparing for the Future." Her basic concern is that annexation is often disconnected from land-use planning, which results in problems of sprawl, uncoordinated growth, inadequate infrastructure, and fiscal stress. Drawing on census data and examples from North Carolina's famous "annexation wars," Judith pointed out that there are no quick-fixes, no one-size-fits-all model solutions (a point that I particularly like and have addressed most recently in "Fourth-Generation Environmental Law: Integrationist and Multimodal"). Local culture matters. Some of the worst conflicts do not arise from expanding large cities but from small municipalities in rural or at least non-urban areas, making it difficutl to get a handle on what exactly "smart growth" might mean in these low-density communities. Water and wastewater dynamics play significant roles, as do municipalities' desires to improve their fiscal health by increasing their property-tax base through annexations. When municipal annexation is difficult, though, alternatives to annexation take its place, including the proliferation of special districts, the rise of county authority over land use, and the dominance of gated communities. All in all, according to Judith, annexation conflicts demonstrate why local governance structure is a "wicked problem" but one that is critically important to land use practices and sustainable development. I am looking forward to the publications that will result from her research. Annexation issues have received too little attention in the land use legal literature.
But her lecture implicitly makes another point -- the value of a land-use lecture series. More on that tomorrow . . . . [OK, maybe not as tantalizing as who shot J.R., but hopefully something of a hook to bring you back.] Again, thanks for letting me come aboard!
January 31, 2011 in Agriculture, Common Interest Communities, Comprehensive Plans, Density, Development, Exurbs, Lectures, Local Government, Planning, Politics, Smart Growth, Sprawl, State Government, Suburbs | Permalink | Comments (1) | TrackBack (0)
From time to time on this blog we've written about local agriculture, including a post I wrote about a controversy in Fall 2009 where the Georgia agriculture department seized a large shipment of raw millk from a local purveyor.
Today's Athens Banner-Herald has an article about a local farm producing small batches of low temperature pastuerized milk. To me this is a nice compromise - locally produced milk that is pathogen free and tasty. Unfortunately, in my experience it doesn't seem to last as long as milk that's been pastuerized at high or ultra high temperatures, so the hubby and I sometimes have difficulty finishing a half gallon (the smallest size available) before it goes bad. (Obviously we don't drink much milk - we use it more for tea and cereal) However, it's super popular locally and it often sells out at our daily co-op.
Another interesting aspect of the article is the farmer discussing how much agriculture officials struggled to understand that his process is perfectly legal. It seems like there's an initial reaction against milk processing that isn't being done in the predictable way, by large dairies. I guess it's another version of small businesses being tripped up by red tape. It's great the farmer was able to get this worked out, because my guess is that local ag is a small but growing part of Georgia's very significant agricultural economy. (And with home building at a stand still, we need all the economic growth we can get!)
Jamie Baker Roskie
Friday, January 28, 2011
The Urbanophile shares a story by James Griffioen called Yes, there are Grocery Stores in Detroit. Griffioen is responding to the oft-repeated assertion that the city of Detroit--still the 11th largest city in America with over 800,000 people--does not have any major national chain grocery stores in the city. This asserted fact is often invoked to illustrate arguments about urban decline, problematic land use arrangements, Detroit's particularly sad problems, and the current focus on the link between poverty and health and obesity in urban areas. Griffioen says that the narrative of grocery-less Detroit is . . . a canard (he uses a more pungent term involving bovine scatology).
In the time I’ve lived in Detroit, I’ve come to realize that the most sensational claims and the public perception they create often have little to do with the day-to-day reality of being a Detroiter. This is a complicated city, and even in the most sincere efforts to cull some truth from it, visiting journalists often end up spreading damaging falsehoods.
One of the most annoying is that Detroit has no grocery stores. . . .
What surprises most people who've heard that there are no grocery stores in Detroit is that there are actually independent stores far more appealing than any chain. One of the nicest grocery stores in Detroit is Honeybee La Colmena (I wrote an extensive profile about the store here). Honeybee is owned and operated by individuals who grew up and still live in the neighborhood where the store is located and they have created dozens of jobs for their neighbors. Honeybee has some of the best produce and prepared foods in the metro area, and it is actually a Detroit supermarket where people from the suburbs come into the city to shop.
Griffioen acknowledges that there are indeed parts of Detroit that are underserved by the market, but it is important to note that cities are often much more complex than any attempt to reduce them to a generalized observation or metaphor.
Thursday, January 27, 2011
Anthony B. Schutz (Nebraska) has posted Grassland Governance and Common-Interest Communities, published in Sustainability Vol. 2, pp. 2320-2348, 2010. The abstract:
In the United States, today’s ranches are engaging in small-scale nature-based endeavors to diversify their income base. But the geographic boundary of the land they own creates a relatively small area within which to operate, and fragmented ownership diminishes the ability of any single landowner to produce nature-based income. Collective action among nearby landowners can produce a set of resources from which all members of the group can profit. Such action can enhance the economic, social, and environmental sustainability of grasslands and the populations that use them. This article shows that common-interest communities can be used to provide and allocate wildlife and other resources on ranchlands, enabling individual landowners to generate more income from selling nature-based experiences to customers. Common-interest communities are familiar in urban settings but they have not yet been used in this setting. Thus, the article proposes a new approach to ranchland management based upon a familiar set of largely private legal arrangements. More broadly, the article illustrates the relevance of private law and private property to sustainable development by explaining how property owners can use private law to engage in environmentally beneficial and economically profitable enterprises on the vast privately owned landscape of the U.S. Great Plains.
Tuesday, January 18, 2011
Polly J. Price (Emory) has posted Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State, Emory Law Journal vol. 60 (2010). The abstract:
Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control. Efforts to "federalize" the mosquito encountered significant limitations, and never accomplished primary federal responsibility for the eradication of malaria. One federal agency in particular - the Office of Malaria Control in War Areas - institutionalized the federal response to malaria in the South during World War II. This assertion of wartime jurisdiction maintained only nominally the primacy of state authority.
The New Deal administrative state saw structural experimentation and innovation at a grand level; this Article’s study of federal efforts to combat malaria in the southern United States provides a good example. In one decade, federal efforts ranged from Works Progress Administration employment, experiments with scientific expertise within the Tennessee Valley Authority, federal intervention in civilian areas as a war strength rationale, and malaria control by federal appropriation. The most significant step resulted from reorganization of the New Deal administrative state under the Federal Security Agency, an independent agency of the U.S. government established pursuant to the Reorganization Act of 1939.
From a federalization perspective, a critical point is that the federal government initiated a malaria eradication effort with broad jurisdiction that helped reshape public perception of the federal government’s responsibilities. It did so under a "national security" mandate that blurred the distinction between domestic and international security, with an effect on the federal government’s regulatory power. But the federal government then withdrew from this wartime assertion of jurisdiction, leaving public health federalism largely unchanged.
The New Deal and of the rise of the administrative state had some significant land use stories that are not as well known as they should be.
Tuesday, January 11, 2011
Just in time for today's (my one and only) class dealing with water law . . . the U.S. Supreme Court heard oral arguments yesterday about the concept of "beneficial use" in the Western states' prior appropriation approach ("first come, first served" per Chief Justice Roberts) to water law. The case seems to hinge on whether or not Wyoming is in violation of a compact signed by Montana, Wyoming and North Dakota if less water is being returned now to the Yellowstone River basin by Wyoming irrigation systems than was being returned in 1950, the date for the "beneficial use" benchmark. In 2008, the Court appointed Buzz Thompson (Stanford) as special master for the matter. Today's NY Times article suggests that the Court, which has original and exclusive jurisdiction over the matter, is skeptical of Montana's complaint.
In the UK, today was the last day for objections to an application for planning permission submitted by Nocton Dairies’ to build a ‘a US-style ‘mega’ dairy farm’ in rural Lincolnshire for a 3,770 cow dairy unit, dwarfing the average herd that has no more than a few hundred cows. An extraordinary 70,000+ objectors have objected to the proposed development, even though the new farm has reduced the number of cows it proposes to keep (the initial application was for 8,100) and despite impressive commitments to reduce carbon emissions in milk production.
While there are many concerns, objectors link two particularly resonant strands of opposition. The first is that a dairy farm of this size is out of place in the English countryside, the second is that keeping the cows inside, without letting them graze in the fresh air, infringes British beliefs in animal welfare. While much milk is imported into the United Kingdom from elsewhere in the EU, consumers have demonstrated a continuing desire for local dairy products and all the major supermarkets have stated that they would not sell Nocton’s milk in their stores. Campaigners and retailers alike have drawn on understandings of rurality, locality and an understanding of British (as opposed to American) farming to suggest that ‘if this proposal goes through it would not only have a disastrous effect on the well-being of the animals, but will potentially allow other factory farms in to change British farming and our countryside forever’.
As one campaign group puts it (drawing on a British love of tea), ‘Would you drink factory milk from battery cows? Not in my cuppa.’
Friday, January 7, 2011
I’m getting ready to start teaching Johnson v. M’Intosh in Property on Monday. I like the choice by the Dukeminier book website to look at the Iroquois three-crop agrarian culture to challenge the hunter-gatherer generalization about Native American land use; but, I think the point about the variety of Native relationships to land could be strengthened by showing just how closely some indigenous land tenure systems resembled European feudalism.
My own law-school-days study of Aztec land ownership showed me a complex scheme of plot allotments to small family groups with other parcels set aside for the economic benefit of aristocratic, military and clerical castes. Iroquois and Huron farming economies also depended on allotment to female clan members. The historical record strongly controverts Locke’s defense of acquisition by discovery/conquest.
I would love to hear about anyone bringing Pre-Columbian land use patterns into their teaching or writing. I think it offers many possibilities for teaching on sustainability, female land tenure and the fundamental connection between how we get our food and how we relate to land.
Friday, December 24, 2010
In an interesting variation on "coming to the nuisance," the Los Angeles Film School has moved next door to the Hollywood Farmers' Market and is now contesting renewal of the market's permit. Apparently, the market - which operates only on Sunday - blocks access to one of the school's parking lots. There's a Joni Mitchell song in there somewhere. Read about it in The New York Times.
Jamie Baker Roskie
Wednesday, December 22, 2010
Last week my dad sent me a link to this article, about Hansjorg Wyss, a wealthy maker of medical devices, and his campaign to buy and conserve up to one million acres in the mountain west.
In an exclusive interview with The Associated Press, Wyss, 75, said he first became enamored of the Rockies as a college student who toured the region in 1958. And he defended his actions against those who chafe at the prospect of an outsider buying up land that in some cases has been logged, ranched or farmed for generations.
"Look, these are beautiful landscapes," Wyss said. "There was controversy when Yellowstone (National Park) was created and when they declared the Grand Canyon as a National Monument. But there are areas in the United States that must be protected."
As the article notes, Wyss isn't the first billionaire to buy lots of Montana land. Ted Turner famously bought and conserved millions of Montana acres in the '90s and the '00s. And Wyss isn't the first businessperson turned conservationist to create controversy. Consider, for example, apparel moguls Kris and Doug Tompkins (of Patagonia and Esprit fame, respectively) who bought up large swaths of Chile and Argentina in what came to be know as "The Green Land Grab." In 2003 one Newsweek writer noted:
For any developing nation, an economic crisis may not be the best time to retire open lands from commercial use. But much of the land for sale in Patagonia has been so overgrazed that ranchers describe it as pelado, or peeled, anyway. So far, Argentines have been too busy protesting international bankers to take much notice of the land rush, but that could change, warns Buenos Aires political analyst Felipe Noguera: "There is the potential for Argentines to feel that yet more of the family silver has been sold off to foreigners." Arguably, if Argentina has to sell off land, better to sell to green tycoons for public nature preserves than to other tycoons for private playgrounds. But it's not clear a financially battered populace would make such distinctions.
It's an open question whether it's a great idea for any nation, developed or developing, to permanent conserve thousands of acres of potentially productive land. But there's no question that the Rockies, and the Andes, are landscapes that are part of our collective environmental heritage. Whether we can conserve these unique areas while allowing the local population to make a living has been an active question for many years. Obviously the last word has yet to be written.
Jamie Baker Roskie
Tuesday, November 30, 2010
William P. Kratzke (Memphis) has posted Russia's New Land Code: A Two Percent Solution, from the Minnesota Journal of International Law, Vol. 12. The abstract:
On October 25, 2001, President Vladimir Putin signed the Land Code of the Russian Federation into law. Factions in the Duma extensively debated the proposed Land Code during the 1990s. The communists and agrarians essentially had argued for a throwback to the bad old days. The new law only applies to 2% of all the land in Russia – but a very valuable 2%, i.e., urban land and dacha property. The Code provides opportunities for great success or failure. It is partly a zoning law, an environmental law, an eminent domain law, a historical preservation law, a “Superfund” law, a private trespass law, and a nuisance law. The Code also reflects Russia’s traditional concern for agriculture. It establishes principles of federalism in land matters by delineating the respective regulatory authorities of the Russian Federation, the regions, and municipalities. The new Land Code recognizes principles of private ownership that include the right to sell land – necessary conditions to its efficient use. The Soviet system of state ownership rejected these principles. Much of the new Land Code does not create any new or unfamiliar principles. However, the very breadth of the Code should sweep within its scope, or sweep away, any number of federal, republic, and local laws. In subtle ways, the Code acknowledges various shortcomings of local government officials. This article provides a first look at the new Land Code, reviews its provisions, and raises some legal and practical questions that will need resolution.
November 30, 2010 in Agriculture, Comparative Land Use, Eminent Domain, Environmental Law, Historic Preservation, History, Property, Property Rights, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)
Friday, November 26, 2010
Reed D. Benson (New Mexico) has posted Environmental Review of Western Water Project Operations: Where NEPA has not Applied, Will it now Protect Farmers from Fish?, forthcoming in UCLA Journal of Environmental Law & Policy, Vol. 29, No. 2, 2011. The abstract:
The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger’s recent decisions applying NEPA to the Bureau’s efforts to comply with the Endangered Species Act in operating the Central Valley Project. The article concludes that the Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species.