Friday, January 28, 2011
Hannah J. Wiseman (Tulsa) has posted Expanding Regional Renewable Governance, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011). The abstract:
Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a renewable parcel is identified, a new piece of property is superimposed upon existing boundaries and jurisdictional lines. The entities within these boundaries all possess rights to exclude, and this creates a tragedy with strong anticommons and regulatory commons elements, which hinder renewable development. This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address the governance challenges in renewable development, and it analyzes elements of existing regional institutions to suggest the ideal structure of this agency. Once formed, the regional framework should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.
Wednesday, January 26, 2011
I didn't have time to watch it last night, so I asked my students this morning to identify the land use issues in the President's speech. They mentioned two things: high-speed rail, and clean energy. From the Associated Press report, here's the key quote on HSR:
Within 25 years, our goal is to give 80 percent of Americans access to high-speed rail. This could allow you to go places in half the time it takes to travel by car. For some trips, it will be faster than flying - without the pat-down. As we speak, routes in California and the Midwest are already under way.
Potentially faster than flying, and they won't touch your junk! And here are two early responses. First, from Transportation Secretary Ray LaHood's Fastlane blog, America has a Future to Win; DOT stands ready to help:
As the President said last night, American businesses and workers are now competing in a global economy. If we are to thrive in competitive markets, we must be able to move goods and people faster and more reliably than ever.
At DOT we have been working hard to help do just that. And the projects we are supporting to rebuild America's transportation infrastructure are creating good jobs for American workers.
But the Reason Foundation's Samuel Staley is not so sanguine. Noting that the President cited China's massive investments in HSR, Staley argues that historical, economic, and geographic factors will render a similar HSR program impractical in the U.S. From President Obama, China, High-Speed Rail and the Sputnik Moment:
A key factor in ensuring high-speed rail's success is the closeness of employment and population centers. The largest Chinese cities aren't nearly as spread out as U.S. cities in terms of distance and the high speed rail lines are connecting larger urban cities.
China has 120 cities with populations of one million or more, and its cities are expected to add the equivalent of another United States - 300 million people - by 2025. The high-speed rail line will connect to most cities with populations greater than 500,000. Given existing levels of very low mobility and income, rail would be a natural beneficiary of rising travel demand as the travel market matures.
It will be interesting to see where the debate over HSR goes from here, particularly in light of the new fiscal and political constraints. I'm also curious about how many people out there may not have thought very much about the HSR issue before the President gave it a mention in the State of the Union.
UPDATE: I was planning on posting this anyway, but then as I was preparing for my afternoon Property I class, I realized it's a great tie-in to the famous INS v. Associated Press case that was assigned for today: If INS can't report the news it learns from AP's public bulletin, how come it's OK for me to blog about information I got from the AP's website? Discuss! Fun stuff.
Saturday, January 22, 2011
Don Fullerton (Illinois-Finance) has posted Six Distributional Effects of Environmental Policy on SSRN. Here's the abstract:
While prior literature has identified various effects of environmental policy, this note uses the example of a proposed carbon permit system to illustrate and discuss six different types of distributional effects: (1) higher prices of carbon-intensive products, (2) changes in relative returns to factors like labor, capital, and resources, (3) allocation of scarcity rents from a restricted number of permits, (4) distribution of the benefits from improvements in environmental quality, (5) temporary effects during the transition, and (6) capitalization of all those effects into prices of land, corporate stock, or house values. The note also discusses whether all six effects could be regressive, that is, whether carbon policy could place disproportionate burden on the poor.
January 22, 2011 in Affordable Housing, Architecture, Clean Energy, Climate, Environmental Law, Environmentalism, Green Building, Housing, Oil & Gas, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Thursday, January 20, 2011
Prentiss Cox (Minnesota) has posted Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs. The abstract:
Property Assessed Clean Energy (“PACE”) is a method of public financing for energy improvements through special assessments on local government property taxes. Interest in PACE exploded from its origination in 2008, with almost half the states rapidly enacted legislation enabling local governments to use their property collection power for this purpose. The growth in PACE is now suspended, and existing programs have been put on hold, in the face of opposition from the federal secondary mortgage market regulators. Governments and environmental advocates supporting PACE have initiated litigation against the federal regulators and are seeking passage of federal legislation to revive the programs. This Article argues that the theory underlying PACE is fundamentally flawed. PACE has been promoted as an alternative to traditional real estate financing that resolves the impediments to homeowners investing in alternative energy and energy efficiency. A careful analysis of these claims demonstrates that PACE in actual practice will operate similarly to most other types of real estate financing, and that the efforts to reconstruct PACE programs through litigation or legislation are misplaced. Instead, PACE programs should be radically restructured or should be considered a creative yet failed experiment offering valuable lessons for future residential energy investment programs.
Thursday, January 13, 2011
This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act begins around 2005, when the nation’s energy policy again turned to the potential of renewable energy. The Mojave is an obvious sight for large-scale solar energy development, but that supposedly green technology threatens many of the scenic values that Congress decided to protect in the CDPA.
The common theme that runs through this article is that the law needs to develop better ways to address the importance of visual perception of both natural and cultural sights. The sights of the Mojave Desert elicit different reactions from different people. Each of these reactions is both strongly held and reasonable, which challenges the law’s ability to accommodate them. The experience with desert preservation and the proposed solar facilities shows that the law needs to find a way to respect contrasting perceptions of the same things. Sometimes this can be achieved by putting the right thing in the right place. Often, though, the same sight that some people treasure is a sight that others find offensive. In such cases, we should prefer decision-making processes that solicit public involvement that first identifies those contrasting perceptions and then seeks to honor them. The role of public input is especially critical on government property, which characterizes most of the Mojave Desert. Congress has intervened to insure the appropriate response to the conflicting public perceptions for each of the three contested Mojave Desert sights. That congressional action and the attendant place-based lawmaking offer the best hope of honoring the contrasting perceptions of the sights of the Mojave.
January 13, 2011 in Aesthetic Regulation, Clean Energy, Environmental Law, Environmentalism, Federal Government, Las Vegas, Sun Belt, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Friday, December 17, 2010
From Fred Cheever at University of Denver:
REGISTRATION NOW OPEN
ROCKY MOUNTAIN LAND USE INSTITUTE CONFERENCE
MARCH 3-4, 2011
UNIVERSITY OF DENVER CAMPUS
Register now for early bird rates of:
Early bird rates expire midnight on February 1, 2011. Rates increase in each
category by $100 on February 2, 2011 except for the Student category.
This promises to be the best RMLUI Conference yet. Our 20th anniversary will
● 2 world-class keynotes, and a special featured presentation
● 32 sessions on today’s critical land use and development issues, including:
Sustainable Economic Development
Please join many of the nation’s top land use practitioners and scholars as we
explore the field’s most challenging subjects, share insights and knowledge
about best practices and begin to map out the region’s next 20 years and the
path to the Next West.
Sounds pretty interesting - I've always wanted to go to this conference. Maybe next year I'll actually make it!
Jamie Baker Roskie
Tuesday, December 14, 2010
Ryan D. Dreveskracht (LLM, Washington) has posted Native Nation Economic Development Via the Implementation of Solar Projects: How to Make it Work, forthcoming in the Washington and Lee Law Review, Vol. 68. The abstract:
This Article examines the issues surrounding sustainable economic development in American Indian country via the implementation of solar energy projects. Section II addresses Native American economic development, generally, focusing on Indian gaming, practical sovereignty, capable institutions, and cultural match. Section III discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country, specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. In arguing for the implementation of solar energy projects, Section III of the Article also provides instruction for the realization of these projects by tribes and state/federal regulatory/legislative bodies. Finally, having argued for and laid out a framework for economic development via solar projects, Section IV offers concluding remarks.
Monday, December 13, 2010
Robert Glennon (Arizona) and Andrew M. Reeves (JD candidate, Arizona) have posted Solar Energy's Cloudy Future. The abstract:
With governments and environmental groups both clamoring for clean alternatives to fossil fuels, the future of solar energy looks bright. To date, however, solar power produces less than one percent of the U.S.’s electricity needs and, despite unprecedented subsidies since the 2008 passage of the American Recovery and Reinvestment Act, very few utility-scale solar projects have broken ground. Solar remains an emerging technology not yet price competitive with fossil fuels, but this efficiency gap alone does not account for the lack of a burgeoning utility-scale solar market - especially when subsidies are considered. Instead, as this article explains, large land and water requirements for utility-scale solar technologies, the arduous permitting process required for proposed sites on public lands, disincentives created by a preference for agriculture, and stringent objections from politicians and environmentalists toward actually siting utility-scale solar projects, better explain the state of solar power in the United States. This article will suggest that solar companies would be wise to focus their efforts to site their projects on private or tribal lands. And, it will suggest that, if solar is ever going to contribute significantly to this country’s energy needs, we must minimize the disincentives and strike a balance between the opposing environmental goals of preserving pristine land and reducing carbon emissions.
Monday, December 6, 2010
Uma Outka (Florida State) has posted The Renewable Energy Footprint, forthcoming in the Stanford Environmental Law Journal. The abstract:
Renewable energy is widely considered essential to climate change mitigation, and policies favoring renewable energy are finding their way into law at all levels of government. With the shift toward renewable energy comes the potential for staggering land impacts – many millions of acres may be consumed to meet demand for electricity and fuel over the next 20 years. To conservationists’ dismay, the more renewable energy we use, the more land we need. This article is concerned with two primary questions: What are the implications of renewable energy development for land use and land use law, and how might the land use context inform emerging energy policy?
Siting power plants and transmission lines is notoriously difficult, and renewable energy has proved no exception. As investment in the sector has grown, so has dissatisfaction with existing siting frameworks. This perceived inadequacy has led to a flurry of siting-related law and policymaking tailored to large-scale renewable energy infrastructure. So-called NIMBYs opposing renewable projects are derided for hindering the green economy. Almost reflexively, we hear, it’s a “trade-off”: shrink the carbon footprint, grow the land use footprint.
This article rejects the trade-off reflex as counterproductive for both causes – it presents an often false choice that obscures legitimate land use concerns and slows renewable development. Instead, our focus should be on deliberately crafting law that avoids needless compromise wherever we can. This perspective demands a far greater integration of energy policy and land use law. To date and across the board, regulatory apparatus for siting is almost exclusively fixated on site-specific land use. Although this remains important, it reflects a worrisome myopia given the land impacts at stake. Accordingly, I argue, cumulative land impacts should be a central consideration in the development and implementation of energy policy.
Well it's not exactly "land" use, since the Sun is a ball of fiery gas, but it is a key player in the status of the Earth's land and ecology, and the issue involves property rights, so check out this story: Spanish Woman Claims Ownership of the Sun:
MADRID (AFP) – After billions of years the Sun finally has an owner -- a woman from Spain's soggy region of Galicia said Friday she had registered the star at a local notary public as being her property.
Angeles Duran, 49, told the online edition of daily El Mundo she took the step in September after reading about an American man who had registered himself as the owner of the moon and most planets in our Solar System.
There is an international agreement which states that no country may claim ownership of a planet or star, but it says nothing about individuals, she added.
"There was no snag, I backed my claim legally, I am not stupid, I know the law. I did it but anyone else could have done it, it simply occurred to me first."
Apparently she plans to start charging a fee (a special assessment?) to all users of the Sun. So prepare to either stay indoors forever (and ditch your solar panels) or pay up. When I get the information about where to send your checks, I'll pass it on. Thanks to Lyle Higginson for the pointer.
Wednesday, November 17, 2010
The US Department of Energy is hosting a webinar today:
Wind Energy Ordinances Webinar
Contact: Susan Hinnen, NREL
1:00 p.m. Mountain Time
Join us for a discussion on wind energy ordinances and new tools being developed by Wind Powering America partners to educate local planners.
* Tom Tuffy, PennFuture
* Erica Heller, Clarion Associates
* David Loomis, Illinois State University
The Wind Powering America team hosts live Webinars with participant Q&A on a variety of themes. Each Webinar will focus on a particular subject of interest to the Wind Powering America community and will feature special guest experts, summarize the latest research on siting and deployment issues, and provide a chance for you to share your own experiences, ask questions, and engage with the Wind Powering America network. The Webinars will be posted on the Wind Powering America Web site after the events.
Visit the website for access information.
Thanks to Rita Kilpatrick at Southern Alliance for Clean Energy for the heads' up.
Jamie Baker Roskie
Tuesday, November 9, 2010
We've done a fair amount of posting about the Deepwater Horizon disaster. (See for example here and here.) Marc Poirer is planning to teach a week-long course at Seton Hall in January on the blowout, and he gave the Environmental Law professors listserv a heads' up to this interesting article. It summarizes all the errors that lead to a collosal disaster.
More than 100 hours of testimony before a federal investigative panel, two dozen congressional hearings and several internal company reports have brought the genesis of the spill into sharp focus. The record shows there was no single fatal mistake or cut corner. Rather, five key human errors and a colossal mechanical failure combined to form a recipe for unprecedented disaster.
It's a great summary of everything that went wrong. Thanks, Marc, and good luck with your course!
Jamie Baker Roskie
Tuesday, October 19, 2010
Patricia Salkin (Albany) has posted Sustainable Development, Climate Change and Land Use for Local Governments, New York Zoning Law and Practice Report, Vol. 11, No. 2, September/October 2010. The abstract:
Over the last two years a number of state level initiatives in New York have been announced and enacted to address sustainable development and climate change. For example, Governor Paterson issued a series of executive orders: requiring a new State Energy Plan (which was adopted in December 2008); setting a goal of reducing greenhouse gas emissions by 80% by the year 2050 and calling for the creation of a climate action plan (the draft plan is scheduled for release for public comment in November 2010; and creating an interagency committee on sustainability and green procurement. In addition, he signed into law a number of new programs including: the Green Residential Building Grant Program, the Green Jobs – Green New York Program, the Municipal Sustainable Energy Loan Act, and improvements to net metering. While these and other State-level programs are vital to achieving emissions reductions goals and promoting sustainable communities, New York’s cities, towns, and villages have also been at work trying to develop and implement strategies to curb emissions. Municipalities are choosing to adopt clear statements and action items in their comprehensive land use plans, and they are creating climate change or sustainability task forces and developing strategies. Local governments are also enacting regulations to promote green building and alternative energy development. This article introduces the ways in which local governments have taken the lead in mitigating and preparing for climate change, focusing on the manner in which local governments have incorporated climate change concerns into the local land development regime.
Friday, August 27, 2010
From Lee Paddock at GW
The George Washington University Law School has added a new Journal of Energy and Environmental Law, the first issue of which was published in July (Summer 2010 issue). The Journal focuses on the intersections among energy, environment and climate. It is published in collaboration with the Environmental Law Institute and distributed to subscribers of Environmental Reporter News & Analysis, allowing authors to reach a professional audience in addition to the traditional law review audience. Some of you may find this an attractive audience for your scholarship. The Journal's Call for Articles follows:
The George Washington University Journal of Energy and Environmental Law (JEEL) is calling for full length articles for its spring issue. Articles should address topics that explore critical issues at the intersection of energy, environment and climate. We are particularly interested in articles addressing international treaties, legislative initiatives in other countries, U.S. federal and state legislation, and case law developments dealing with issues such as:•energy generation and distribution with a special focus on renewable and
•facility siting, including transmission infrastructure;
•mechanisms for enhancing energy efficiency in all use sectors;
•public benefit funds, net metering requirements, renewable portfolio standards and other forms of utility regulation;
•implementation of a “smart grid;”
•climate change and carbon sequestration;
•air and water pollution issues related to energy generation;
•water use and water conservation related to energy production;
•land use questions;
•assessment of the environmental impacts of energy production and
energy-intensive activities; and
JEEL is published twice each year as a supplement to ELI’s Environmental LawReporter (ELR) News & Analysis. Articles must be submitted by September 20, 2010 to: firstname.lastname@example.org.Questions can also be directed to Lee Paddock, Associate Dean for Environmental Law Studies, at email@example.com.
Jamie Baker Roskie
Tuesday, August 17, 2010
According to a recent story on NPR's Morning Edition, California has recently declared one of the most ambitious targets for renewable energy in the world - 1/3rd of its electricity from renewable sources by 2020. (Sadly, Georgia has no currently goal. No Southeastern state has, except North Carolina.) However, like Cape Wind, struggles continue over siting renewable energy projects - like this solar project proposed in Central California.
However, according to a recent story in The New York Times, there are places where the siting of solar projects is popular with pretty much everybody - on abandoned agricultural land.
Thousands of acres of farmland here in the San Joaquin Valley have been removed from agricultural production, largely because the once fertile land is contaminated by salt buildup from years of irrigation.
But large swaths of those dry fields could have a valuable new use in their future — making electricity.
Farmers and officials at Westlands Water District, a public agency that supplies water to farms in the valley, have agreed to provide land for what would be one of the world’s largest solar energy complexes, to be built on 30,000 acres. At peak output, the proposed Westlands Solar Park would generate as much electricity as several big nuclear power plants.
It's interesting that one environmental problem - saltwater intrusion from overpumping of the coastal aquafers - might contribute to another environmental solution - reduction of dependence on coal-fired power plants. Anyway, it's nice to see a non-controversial renewable energy project, for a change.
Jamie Baker Roskie
Wednesday, June 23, 2010
Courtesy of the Houston Tomorrow newsletter, here is a report on the proposed Livable Communities Act. Senate Bill Connects Transportation, Land Use Planning: Livable Communities Act. Quoting the D.C. Streetsblog:
The Livable Communities Act would provide about $4 billion in competitive grants to coordinate housing, transportation, and economic development policy with an eye toward promoting sustainable development. About $400 million would be slated for planning with the remainder funding implementation. The bill would also create a new office within the Department of Housing and Urban Development to guide and administer the programs. If passed, it would strengthen the Obama administration’s multi-agency Sustainable Communities Initiative.
Sounds great in its intent, though short on specifics, as most proposed legislation is. Senator Dodd opines:
Senator Dodd described the bill at the hearing, stressing that “integrated transportation and land use planning can help address a host of challenges: high foreclosure rates, climate change and oil dependency, deteriorating infrastructure, traffic congestion, and the loss of farmland. “
I have a couple of questions, though. First, to the extent that this bill can be construed to represent the Obama administration's commitment to rethinking urban development and land use, and promoting transit oriented development and sustainable communities, how does it square with the other administration policies that seem determined to continue promoting single-family home ownership in suburban sprawl?
Second, I'm not persuaded by this last exchange on performance measures:
Senator Warner supports the bill, but would like to see the Livable Communities Act have performance measures in place. He asked, “Is it just squishy livability? Is there a way that we can define this with metrics?”
He was assured by responses saying that many of its results can be measured, such as “the volume of reduced greenhouse gases, acres of preserved open space and rises in property values,” the article reports.
I'm skeptical of "performance measures" and "metrics" generally. More substantively, I think that the point of legislation such as this--agree or disagree with it on the merits--should be to promote qualitatively different community development (which is a quintessentially local issue) and not to be wrapped up in larger transnational issues like global warming. Really, should the "metric" for whether a "Livable Communites" grant is successful be its infinitesimal contribution to reducing the Globe's carbon footprint? There are better ways to fight climate change. I for one would rather promote "squishy livability" than to try to shoehorn some "metric" for carbon reduction into the analysis of whether we should subsidize certain forms of development. If the legislation promotes good development, then that is the primary outcome that should be measured.
Tuesday, May 11, 2010
Victor Flatt recently wrote an editorial for the Houston Chronicle entitled "Did a single week reverse energy fortunes forever?" in which he contrasts the fallout from the Deepwater Horizon explosion and the approval of Cape Wind.
Jamie Baker Roskie
Sunday, May 9, 2010
Charles Davis (Colorado State--Political Science) has posted Federal Agency Involvement in Western Renewable Energy Resource Decisions: Assessing the Views of Colorado County Commissioners. The abstract:
Tuesday, April 27, 2010
Sara C. Bronin (Connecticut) has posted Curbing Energy Sprawl. The abstract:
Energy sprawl - the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities - is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects - especially large-scale projects that require large-scale transmission and distribution infrastructure - contribute to energy sprawl. This Article does not aim to stop large-scale renewable energy projects or even argue that policymakers focus solely on land use in determining whether energy projects are allowed to proceed.
Rather, it proposes that we advance the legal institutions necessary to facilitate one possible solution to energy sprawl: the alternative energy microgrid - that is, small-scale distributed generation between neighbors of energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells. Microgrids are attractive from a public policy perspective. They decentralize energy production, reducing the need for massive transmission lines and large centralized plants. They allow property owners to achieve economies of scale by spreading the costs and the risk of installation and maintenance among many parties. They provide cleaner alternatives to conventional energy methods of production. And they improve system efficiencies by reducing the amount of energy lost during transmission across long distances to end users.
Despite such benefits, regulatory, political, and economic barriers thwart microgrids. For example, state laws prohibit or severely limit their viability, while neighbors may object to living nearby. This Article offers three proposals to address such barriers. First, Congress should require states to consider a model standard for microgrids, just as it has required states to consider model standards in other areas of utility law. Second, states should provide guidance to localities with respect to siting and permitting microgrid projects. Third, states should develop and authorize legal institutions that would support microgrid projects, drawing from Professor Robert Ellickson’s proposal for block improvement districts, which accommodate the public-private nature of shared energy. Together, these proposals would support small-scale energy sharing collectives whose emergence could transform the American landscape.
I attended Prof. Bronin's presentation of this at ALPS and it's a fascinating paper. Bring on the microgrid.
Tuesday, April 13, 2010
Patricia Salkin (Albany) has posted a two-part piece on SSRN: Renewable Energy and Land Use Regulation, ALI-ABA Business Law Course Materials Journal, p. 47, February 2010. Here is the link to Part 1 and its abstract:
Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.
Part 2 and abstract:
This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.
Very relevant and timely.