Land Use Prof Blog

Cleveland's EcoVillage

Dennis Keating (Cleveland State) and Wendy Kellogg (Cleveland State-Urban Affairs) have posted Cleveland's Ecovillage: Green and Affordable Housing Through a Network Alliance.  The article offers a case study of EcoVillage, a transit-oriented affordable housing project in the Detroit Shoreway neigborhood of Cleveland.  Here's the abstract:

This article presents a case study of the inter-organizational network that formed to produce four housing projects in Cleveland's EcoVillage designed to integrate social equity and ecological stewardship as the basis for neighborhood redevelopment. Our paper builds on concepts of community development and housing production through inter-organizational networks spanning nonprofit, public, and private organizations that developed and supported four green and affordable housing projects. We are interested in understanding how development of the housing projects changed and connected traditional neighborhood development and ecologically-oriented organizations and how their interaction changed the practice of housing production and environmental and sustainability advocacy locally and regionally. The results of the study reveal that the marriage of green and affordable housing in Cleveland, despite some challenges, was viewed as important and beneficial by the organizations involved, and resulted in a range of demonstration projects that not only changed the EcoVillage, but affected other neighborhood housing projects in Cleveland as well. The projects resulted in enhanced capacity for green housing production through creation of a new network of organizations spanning the housing and environmental sustainability fields of practice that continues to support sustainable housing and neighborhood development in Cleveland.

Jim K.

 

Salkin and Nolon on Sustainable Development and Climate Change for Planners and Attorneys

Patricia Salkin (Albany) and John Nolon (Pace) have posted Integrating Sustainable Development Planning and Climate Change Management: A Challenge to Planners and Land Use Attorneys, published in Planning and Environmental Law, Vol. 63, p. 3, March 2011.  The abstract:

This essay is based on our new book, Climate Change and Sustainable Development Law in a Nutshell (West 2011) which describes the close relationship between sustainable development and climate change management. It begins with a discussion of recent discussions and agreements at the international level and it provides a brief history of sustainable development and climate change policy. The article then explores national and local strategies to address sustainable development goals. Local planning and zoning, transit oriented development, energy efficiency and green infrastructure issues are also addressed.

The book, Climate Change and Sustainable Development Law in a Nutshell, is really helpful for lawyers, planners, and students in getting an orientation to this very hot topic.  The article provides some great examples and pushes us to think about the federal/state/local/sublocal legal divides that land users have to face. 

Matt Festa

Rosser on Carbon Offsets

It was great to have the chance at ALPS to get a preview of a work-in-progress by Ezra Rosser (American).  In his talk, "The Limits of (Progressive) Property," Ezra articulated the reasons for his pessimism about property law as a vehicle for progressive social change, responding to the views expressed by several leading neo-Aristotelian property scholars in a 2009 special issue of the Cornell Law Review.  I am looking forward to seeing Ezra's work in print.

Recently Ezra has posted his forthcoming article, Offsetting and the Consumption of Social Responsibility, 89 Wash. L. Rev. ___ (2011).  Here's the abstract:

This Article examines the relationship between individual consumption and consumption-based harms by focusing on the rise in consumption offsetting. Carbon offsets are but the leading edge of a rise in consumer options for offsetting externalities associated with consumption. Moving from examples of quasi offsetting to environmental offsetting and the possibility of poverty offset institutions, I argue that offsetting provides a valuable mechanism for individuals to correct for the harms associated with consumption. This article makes two major contributions to how we understand the relationship between consumption and social responsibility. First, it identifies an emerging offsetting phenomenon in seemingly discrete market practices and gives suggestions for improving upon them. Second, it suggests that by taking seriously both consumption and externalities, progress can be made on everything from the environment to global poverty. Offsetting, while not getting at all moral or societal obligations, does root such obligations in the shared activity, and perhaps belief, of Americans: consumption.

Jim K.

Teaching Outside the Box

We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.

I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.

I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.

I will be speaking more about this project in May at Pace's Practically Grounded Conference (and elsewhere). If any of you are engaged in (or know of) similar projects, please let me know!

- Jessica Owley

 

Purdy on American Natures: The Shape of Conflict in Environmental Law

Jedediah Purdy (Duke) has posted American Natures: The Shape of Conflict in Environmental Law.  The abstract:

There is a firestorm of political and cultural conflict around environmental issues, including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, ignoring the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and how we should govern it. Each of these conceptions persists in a body of environmental law, a network of interest and advocacy groups, the attitudes and even identities of ordinary citizens, and even the American landscape. The first, Providential Republicanism, treats nature as intended for productive human use, and gives high status to its users: this idea justified the European claim to North America, defined public debates about nature in the Early Republic and persists in important aspects of private and public land-use law. The second conception, Progressive Management, arose in the later nineteenth century as part of a broader legal reform movement, and gave its shape to much of federal lands policy, notably creation of the national forests and national parks. In this idea, nature’s productive use requires extensive management by public-spirited experts, whom reformers imagined as steering the environmental policy of the administrative state. The third conception, Romantic Epiphany, concentrates on the aesthetic and spiritual value of nature, and has defined both national parks policy and the creation of the national wilderness system, and lent essential support to the Endangered Species Act. This idea entered environmental politics at the turn of the last century, with the efforts of the Sierra Club and other innovators. The most recent conception of nature, Ecological Interdependence, arose in the middle of the twentieth century and shaped much of the environmental law of the 1970s and thereafter. This conception treats nature as an intensely inter-permeable web, which humans are unavoidably part of, to our benefit and hazard. Because all these ideas persist today in environmental law and politics, they provide a map of our existing statutes and doctrines and the conflicts around those laws and emerging issues such as climate change.

Looks like an interesting and important historical perspective on contemporary environmental policy. 

Matt Festa

Gonzalez on Climate Change and Community-Based Food Production

Carmen Gonzalez (Seattle) has posted Climate Change, Food Security, and Agrobiodiversity: Toward a Just, Resilient, and Sustainable Food System.  Here's the abstract:

The global food production system is in a state of profound crisis. Decades of misguided aid, trade and production policies have resulted in an unprecedented erosion of agrobiodiversity that renders the world’s food supply vulnerable to catastrophic crop failure in the event of drought, heavy rains, and outbreaks of pests and disease. Climate change threatens to wreak additional havoc on food production by increasing the frequency and severity of extreme weather events, depressing agricultural yields, reducing the productivity of the world’s fisheries, and placing pressure on scarce water resources. Furthermore, the climate crisis and the biodiversity crisis are occurring at a time of rising global food insecurity. The United Nations Food and Agriculture Organization reports that 1.05 billion people currently suffer from chronic hunger – a figure that represents one sixth of humanity.

This article examines the underlying causes of the crises in the global food system, and recommends specific measures that might be adopted to address the distinct but related problems of food insecurity, loss of agrobiodiversity, and climate change. The article concludes that the root cause of the crises confronting the global food system is corporate domination of the food supply and the systemic destruction of local food systems that are healthy, ecologically sustainable, and socially just. The article argues that small-scale sustainable agriculture has the potential to address the interrelated climate, food, and agrobiodiversity crises, and suggests specific measures that the international community might take through law and regulation to promote sustainable agricultural production.

Jim K.

Recent Article Highlights Need to Think Comprehensively About Land Conservation

A new article in the journal Conservation Biology, highlights the need to shift our way of thinking about preservation sites. As I (and many others) have noted elsewhere, climatic changes are likely to disrupt current land protection schemes. Many of our current land conservation strategies (including establishment of reserves and most uses of conservation easements) assume environmental stability. This assumption if inappropriate when studies increasingly demonstrate there will be large shifts in ecosystems and species habitat. The authors of Toward a Management Framework for Networks of Protected Areas in the Face of Climate Change demonstrate that there is a need to increase the resilience and robustness of our conservation areas and reassess our decisions regarding where protected lands should be and what the rules governing those areas should be. Although the study examines birds in sub-Saharan Africa, the ideas and cautions easily apply to decisions regarding land conservation in the United States and elsewhere.

Below is the authors’ abstract:

Networks of sites of high importance for conservation of biological diversity are a cornerstone of current conservation strategies but are fixed in space and time. As climate change progresses, substantial shifts in species’ ranges may transform the ecological community that can be supported at a given site. Thus, some species in an existing network may not be protected in the future or may be protected only if they can move to sites that in future provide suitable conditions. We developed an approach to determine appropriate climate change adaptation strategies for individual sites within a network that was based on projections of future changes in the relative proportions of emigrants (species for which a site becomes climatically unsuitable), colonists (species for which a site becomes climatically suitable), and persistent species (species able to remain within a site despite the climatic change). Our approach also identifies key regions where additions to a network could enhance its future effectiveness. Using the sub-Saharan African Important Bird Area (IBA) network as a case study, we found that appropriate conservation strategies for individual sites varied widely across sub-Saharan Africa, and key regions where new sites could help increase network robustness varied in space and time. Although these results highlight the potential difficulties within any planning framework that seeks to address climate-change adaptation needs, they demonstrate that such planning frameworks are necessary, if current conservation strategies are to be adapted effectively, and feasible, if applied judiciously.

 HOLE, D. G., HUNTLEY, B., ARINAITWE, J., BUTCHART, S. H. M., COLLINGHAM, Y. C., FISHPOOL, L. D. C., PAIN, D. J. and WILLIS, S. G. , Toward a Management Framework for Networks of Protected Areas in the Face of Climate Change. Conservation Biology, no. doi: 10.1111/j.1523-1739.2010.01633.x

- Jessica Owley

Fracking Conference

We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!

- Jessica Owley

 Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy

March 28-29, 2011 at University at Buffalo School of Law

Buffalo, New York

On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.

Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.

We welcome submissions on any related topic, including the following:

• Hydrofracking and Nuisance Law
• Impacts on Tribal Lands
• Administrative law and the EPA Rulemakings
• Environmental Review Processes    
• Application of federal environmental laws, including the Clean Water Act and Clean Air Act
• Energy issues, in including the Energy Policy Act and DOE policy
• Endocrine Disruption and Human Health Impacts

Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to jol@buffalo.edu.

For more information, contact Jessica Owley [jol@buffalo.edu or 716-645-8182] or Kim Diana Connolly [kimconno@buffalo.edu or 716-645-2092]

Snow Days in Texas and Elsewhere

Today I am in my hometown of Albany NY, trudging through waist-high ramparts of plowed snow.  Much of the US has suffered tremendous snowfalls/blizzards in the past week.  Back in my current home of Houston, TX, my family and students are having a "snow day" because they anticipate maybe getting some white stuff.  Since the typical transplanted-yankee reaction is to scoff at the inability of southern cities to deal with snowy weather, I think it's worth editing and reprising this post from last year, where I defend the local government choice to take the occasional shutdown over the necessary land use investment for snow removal:

Snow Day in Texas

Hard to believe, but it might snow today in Houston. Such weather is pretty rare in Houston.  My law school has closed for the day in mere anticipation of snow.

I grew up in upstate New York [where I am today, in Albany], where the average January temperature is 22 F (compared to Houston's 55 F); average winter snowfall was 64" (compared to Houston's < 0.05").  Tennessee, where I lived for about eight years as an adult, is just far enough north to get some decent snowstorms each winter, but overall it has a much warmer, and shorter, winter.  Yet it seemed that in Tennessee the authorities were constantly cancelling school and shutting the city down.  Often the schools had to extend their year to make up for all of the snow days.  In New York we hardly ever lost a day of school due to snow; perhaps 0-2 per year.  Even a 12-inch snowfall was not a problem, while in Tennessee they would preemptively close for a forecast of snow.

Fellow northern transplants and I would snicker at all this.  You call this a snowstorm?  I chalked up the different approaches to the hardiness of our yankee constitutions.  But eventually I think I figured out what might be the biggest factor in the different regional reactions, and it's a land use & local government issue.  Albany County's snow removal budget for supplies alone (salt, fuel) is $1,217,500.  This doesn't include the operating costs for personnel, nor the capital outlays for the equipment; a new snow plow can cost a city around $200,000.  Chicago's total snow removal budget is $17 million. 

So while these types of expenditures are necessary in northern cities, it wouldn't make sense in warmer climes to purchase and maintain the equipment, supplies, and personnel necessary for snow removal capability.  In Houston a freak storm like today's doesn't happen often enough to remotely justify the expense.  It becomes a more difficult question for places in the latitudinal middle, like Tennessee and Kentucky.  One could measure the economic impact of lost school and work days and business in the area, and compare it to the costs of snow removal.  But even that would still need to make some predictive assumptions based on variance from year to year.  (Besides, why invest in a snow plow when Georgia will soon be underwater due to global warming?) 

Assuming rational actors, one would think we could draw lines between the places where it is more efficient as a matter of municipal policy to do snow removal, and those where it is more efficient to simply ride out the storms as they come.  Obviously there are a lot of other factors for planners in making this decision, including geography, the urban/suburban/rural character of the place, and other unique factors.  Plus there are the politics of snow removal (a blizzard is said to have altered the outcome of Chicago's mayoral primary in 1979). 

But obviously it would never make sense on the Gulf Coast, so we'll just hunker down as we watch the freak snowfall today (my three-year-old [now four, and still talking about last year's snow] has no idea what this stuff is).  But don't feel bad for me-- it will be back up to 74 F by Tuesday. 

So take that, yankees.  As Jessica points out, in Buffalo they make the social land use adjustments that are necessary, but they take a rational approach in Houston too.  I might reconsider this stance tonight after I freeze off my fourth point of contact. 

Matt Festa

UPDATE: No snow in Houston, but everything's frozen.  Contrast the icy fountain in front of my Houston apartment with the snowdrifts piled high in front of my childhood home in NY.  Yet the local government responses are as different as the respective amounts of frozen H2O. 

 

 

 

 

 

 

One of the Many Reasons I Love Buffalo

While the rest of the country is reeling from the huge snow storms, it was just another winter day here in Buffalo. (Most of the schools were closed today, but the consensus seems to be that they shouldn't have bothered because the snow didn't arrive in the amount expected.) Buffalo has already surpassed 60 inches of snowfall this winter, but no one here is fazed by it.

Having grown up in Wisconsin, I am used to snow but I have been impressed with the snow culture here. In particular, I assumed that being a home owner in Buffalo meant buying a snow blower. However, in my neighborhood this doesn't seem to be the case. Only one or two people on each block buy a snowblower snow thrower and then those wonderful souls clear the snow for the entire block. We moved to Buffalo this past summer. When our neighbors told us not to buy a snowblower because someone else already had one, we thought they were kidding. We have two such snowblower owners on our block. One of them even took the time to do our entire driveway. I rushed out to thank our neighborhood snowblower owner one day last week. "Just being a good neighbor!" he said.

Thinking about land use and community here in Buffalo necessarily involves considering weather snow. Locations of public services, uses of public spaces, and protection of natural resources must be approached differently in a place where you can't see the sidewalks for three months. Sure lots of cities are walkable, but how many are cross country skiable? It is always interesting to move to a new city and learn about the different communities, traditions, and landscapes. Although Buffalo is beautiful in the summer (admittedly the best time to visit), you have to be here in the winter to understand how the community comes together.

- Jessica Owley

Introducing Jessica Owley

Here at the Land Use Prof Blog we've been incredibly fortunate to have some really bright scholars willing to contribute--from getting Jim Kelly and Tony Arnold join the lineup, to several interesting guest bloggers, including Ken Stahl, McKay Cunningham, and most recently, Antonia Layard.  It's a new month (already!) and I'm pleased to announce a new guest blogger: Jessica Owley of the University at Buffalo Law School.

Jessica teaches environmental law, property, and land conservation at Buffalo.  She holds both a JD and a PhD in environmental science, policy, and management from Berkeley.  Before joining the faculty at Buffalo, Jessica practiced in the land use & environmental law group at a major law firm and taught at Pace Law School.  Her research interests are in land conservation, property rights, and using property tools for conservation in the context of climate change.  She has posted several interesting articles in recent months on the subject of conservation easements, including forthcoming pieces in the Stanford Environmental Law Journal, an ABA book on Greening Local Government, and Law and Contemporary Problems. 

We're excited to have Jessica join us this month, and we look forward to her thoughts and observations!

Matt Festa

Owley on Conservation Easements at the Climate Change Crossroads

Jessica Owley (Buffalo) has posted Conservation Easements at the Climate Change Crossroads, forthcoming in Law and Contemporary Problems.  The abstract:

The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from development, flexible conservation easements may present a viable and attractive method of protection. Where a specific conservation value or habitat is the concern, active management of the land may be more appropriate. As a further complication, both of these options are at odds with the essential nature of conservation easements. These conflicts lead to a third option: making different decisions about where and how to use conservation easements. This would likely lead to the conclusion that conservation easements are only desirable in a narrower category of purposes. This is, of course, dismaying to champions of conservation easements. Unfortunately, ensuring the long-term viability of conservation easements may entail omitting the very features that give conservation easements their strength.

This is another article from Professor Owley that challenges some prevailing views on conservation easements.  On a side note, I can hint that we might be hearing more from her soon in this space!

Matt Festa

Six Distributional Effects of Environmental Policy

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.

Jim K.

Connecticut vs. American Power

Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power.  Following is a synopsis from the Climate Change and Clean Technology Blog.

On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).

This is a case to watch out for during this Supreme Court term.

Read more here.

Jamie Baker Roskie

When it comes to farms, size matters

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.’

Antonia Layard

Rosenbloom on Incentivizing Sustainable Businesses

Jonathan D. Rosenbloom (Drake) has posted Government Entrepreneurs: Incentivizing Sustainable Businesses as Part of Local Economic Development Strategies In Greening Local Government, published in GREENING LOCAL GOVERNMENT, Patty Salkin and Keith Hirokawa, eds., 2011.  The abstract:

This chapter (which will be included in the forthcoming Greening Local Government book edited by Patty Salkin and Keith Hirokawa) considers economic development strategies that capitalize on an emerging socially responsible and environmentally friendly economy.

Local economic development strategies used to attract private sector investment have remained almost the same for the past forty years. The private sector itself, however, is changing. There is a small, but rapidly growing, segment that has re-conceptualized the purpose of a for-profit business. An emerging portion of the private sector generates profit, value and marketability in fostering sustainable business strategies, focusing equally on economic profitability, environmental friendliness and socially responsibility.

In light of this evolution in the private sector, should local governments redesign economic development strategies to leverage the growth in sustainable businesses? The chapter concludes with steps local governments may take to directly incentivize sustainable businesses by increasing the sustainability of the incentives themselves, including a performance-based economic development strategy; and to indirectly encourage the development of sustainable businesses by helping to facilitate a market for their products.

This chapter does not present sustainable economic development strategies as a single option or as a blanket panacea. Rather, by implementing economic development strategies to accommodate and promote sustainable businesses, local governments enhance their sustainability and diversify their tax base. A welcoming business framework is crucial in driving interest and investments in sustainability to the mutual benefit of local governments and the private sector. As local governments look to support sustainable businesses, they will have a positive impact on communities, economic development and the environment in a sustainable and lasting manner.

Matt Festa

Rocky Mountain Land Use Institute 2011 Conference

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:
Corporate: $450
Government: $375
Non-Profit: $275
Student: $100

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
feature:

●   2 world-class keynotes, and a special featured presentation
●   32 sessions on today’s critical land use and development issues, including:

Affordable Housing
Climate Change
Mobility
Renewable Energy
Sustainable Economic Development
Water Conservation

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

Glennon & Reeves on Solar Energy's Cloudy Future

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.

Matt Festa

Supreme Court to Hear Case on Nuisance & Global Warming

The U.S. Supreme Court granted cert on Monday to hear American Electric Power Company, Inc. v. Connecticut.  The case, on petition from the Second Circuit, was brought by several states against the entities they contend are the leading causers of global warming in the U.S.  It hasn't gone to trial yet.  What's significant about the case--both as a matter of legal theory and policy--is that the theory of the case is based on nuisance.  Via SCOTUSblog, a statement of the issues:

Issue: (1) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and (3) whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” (Sotomayor, J., recused.)

Plain English Issue: Whether federal law allows states and private parties to sue utilities for contributing to global warming. (Sotomayor, J., recused.)

Again, what's implied in this issue statement is that the case is based on (federal) nuisance (common) law.  You can read an analysis from Lyle Denniston on SCOTUSblog (scroll down a bit), and view the links to the briefs, orders, and amici at SCOTUSblog here.  There are lots of conlaw and administrative law bigwigs and interest groups on both sides of what will likely be an important case.

Matt Festa 

Nolon and Salkin book announcement: Climate Change and Sustainable Development Nutshell

From Patricia E. Salkin (Albany) and John R. Nolon (Pace) comes news of their new book, Climate Change and Sustainable Development Law in a Nutshell.  The synopsis:

This new Nutshell comprehensively explores international, federal, state, and local laws and policies regarding sustainable development and climate change management.  It traces the historical development of sustainable development and climate change law, showing that they appeared on the world stage at the same time and illustrating how they can be best understood, implemented, and practiced as a single body of law and policy.

 The book illustrates the initiatives taken by all levels of government to achieve sustainable development, showing how these initiatives provide important opportunities to manage, mitigate, and adapt to climate change. The Nutshell explains how the U.S. legal system, particularly its reliance on the land use authority of local governments, fosters greenhouse gas reduction, energy conservation, and sustainable patterns of growth, including energy-efficient and sustainable buildings, the use of renewable energy resources, the protection of sequestering open space, and the adaptation of buildings and communities to sea level rise and natural disasters.

Climate Change and Sustainable Development Law in a Nutshell provides the international and national context for this bottom up approach. It illustrates how national and state governments can motivate 40,000 local governments in the U.S. to use existing authority and to adapt effective local initiatives already in place to both mitigate and adapt to climate change. This is presented as a complement to other international and national strategies for climate change management.

As one of dozens of examples, the Nutshell explains that local governments in most states are charged with enforcing the energy construction code and that, in many states, they have the power to enhance that code to achieve at least 30% greater efficiency in newly constructed and substantially renovated buildings.  The building industry will provide millions of new homes and billions of square feet of nonresidential buildings to keep pace with our increasing population. Buildings consume the lion's share of all electricity generated and are responsible for over a third of carbon dioxide emissions. Some predict that two-thirds of the buildings in existence at mid-century will be built between now and then.  The new International Green Construction Code, issued by the International Codes Council, contains techniques for extending this energy saving strategy to existing buildings. 

The Nutshell also explains how localities can reduce their carbon footprint through transit oriented development and promoting renewable energy strategies, both of which depend on local planning and land use regulation. While grander schemes are stuck for the time at the federal and international level, researchers struggle to keep up with the task of identifying and analyzing progress of this sort on the ground.

The Nutshell covers the Rio Accords, the Istanbul Declaration on Human Settlements, the Johannesburg World Summit on Sustainable Development, and the 2005 and 2010 Millennium Ecosystem Assessment reports. These illustrate that the devolution of some legal authority to attack the full range of problems that hinder sustainable development is built into international agreements and the law of other nations. The book notes that the IPCC is considering including chapters on Human Settlements and Infrastructure in the Fifth Assessment Report.

Sounds great.  Law professors can receive comp copies of the nutshell by calling 1-800-313-9378.

Matt Festa