Tuesday, December 7, 2010
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.
Sunday, December 5, 2010
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.
Wednesday, December 1, 2010
Craig Anthony (Tony) Arnold (Louisville) served last spring as a visiting professor at the University of Houston, where he organized an excellent symposium on Climate Change, Water, and Adaptive Law, with participation from Robin Kundis Craig, Noah Hall, Dan Tarlock, Elizabeth Burleson, Lea Rachel Kosnick, and Kathleen Miller. Prof. Arnold has recently posted two pieces from the symposium issue, published in the Environmental and Energy Law and Policy Journal, Vol. 5 (2010).
The introductory essay is Law's Adaptive Capacity and Climate Change's Impacts on Water. The abstract:
This is an introductory essay to a symposium on Climate Change, Water, and Adaptive Law, held at the University of Houston Law Center in February 2010 and published in the Environmental and Energy Law and Policy Journal. It contends that changing climate conditions are creating pressures on water law, policy, and management institutions to adapt and questions whether these institutions have the capacity to adapt to climate change. It describes four major effects of climate change as they relate to water resources: 1) precipitation effects; 2) environmental and landscape structural effects; 3) behavioral response effects; and 4) institutional response effects. The essay then describes two articles addressing the dynamics of cross-jurisdictional scale: one by Robin Kundis Craig and one by Noah Hall; two articles addressing cross-sector interrelationships among water and energy: one by Dan Tarlock and one by Lea Rachel Kosnik; and three articles analyzing the adequacy and adaptability of existing trends in decentralized water planning and management: one by Kathleen Miller, one by Tony Arnold, and one by Elizabeth Burleson. The essay then comments on the themes of fragmentation and integration in the context of the systemic evolution and emergence of water law institutions.
Prof. Arnold's own contribution to the symposium is his article Adaptive Watershed Planning and Climate Change. The abstract:
Few phenomena make the case for adaptive ecosystem management quite as well as climate change, the hydrological effects of which will upset settled expectations and require water institutions to adapt. The effects of climate change will be felt at multiple hydrological, geographic, and institutional scales that transcend specific water sources or political and legal jurisdictions. Moreover, the effects will be uncertain, complex, and frequently changing. Thus, water resources should be managed at watershed scales, and this management should use the adaptive management methods of flexibility, experimentation, and learning through iterative processes of managing environmental conditions and programs.
However, the adaptive ecosystem management concept has had the unfortunate effect of de-emphasizing or even rejecting the role of planning in shaping the relationships between human actions and ecological conditions. Too little attention has been given to the role of planning in adaptation and ecosystem management. A concept of "adaptive planning" is not only consistent with adaptive ecosystem management, but could actually improve adaptive ecosystem management methods and the capacity of institutions to engage in adaptive ecosystem management effectively. Moreover, a growing number of watershed plans are exhibiting some characteristics of adaptive planning, particularly with respect to the effects of climate change on watersheds and water resources.
This article explores the role of adaptive watershed planning in adapting to climate change. Adaptive watershed management requires the use of adaptive planning methods, not merely ad hoc, reactive experimentalism and incrementalism. Without some process of planning, Charles Lindblom’s “science of muddling through” becomes "the science of drifting along." Adaptive planning gives some direction and focus to adaptive ecosystem management activities. Furthermore, adaptive watershed planning can improve not only adaptive watershed management methods, but also the content and effectiveness of watershed plans themselves. If watershed plans are to be useful, they must contemplate the uncertainties associated with climate change and its effects.
In addition to describing the theory and features of adaptive planning and applying adaptive planning principles to watershed planning and management, this article also explores examples of watershed plans in the U.S. and Canada that have addressed climate change and analyzes a number of issues in adaptive watershed planning, including barriers to, and opportunities for, the increased and improved use of adaptive watershed planning to improve the capacity of watershed institutions to adapt to climate change.
Check out all of the articles from this interesting event when they are published by Environmental and Energy Law & Policy. It was great to have Tony Arnold down in Houston last spring to organize this event, with the side benefit of bringing him over to South Texas for our Land Use in the Unzoned City forum!
Tuesday, November 30, 2010
Craig on Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses
Robin Kundis Craig (Florida State) has posted Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses on the Gulf Coast, forthcoming in the Journal of Land Use & Environmental Law. The abstract:
The states bordering the Gulf of Mexico - Texas, Louisiana, Mississippi, Alabama, and Florida - face numerous challenges in coastal management along those shores, one of which is rising sea levels. Given the threats that sea-level rise and associated climate change impacts pose to public health and welfare, increased state and local government action in and regulation of the Gulf coast is virtually inevitable.
However, government action regarding the Gulf coast that limits or otherwise affects private property rights leaves state and local governments vulnerable to claims that those governments have taken private property in violation of the federal Constitution. Such vulnerability, however, is not absolute. As the U.S. Supreme Court recognized in Lucas v. South Carolina Coastal Council, no unconstitutional taking of private property occurs if the property owner’s claimed rights were never part of that owner’s title to begin with. As a result, certain “background principles” of state property law shield governmental action from taking liability, even if that action interferes with or prohibits a landowner’s desired use of the property.
This Article examines two of these “background principles” of state property law - state public trust doctrines and the doctrine of public necessity - to assess their abilities to insulate state and local coastal regulation from landowner claims of regulatory takings in the Gulf of Mexico states. It concludes that state and local governments in Gulf states generally have more tools to protect the coast than are generally acknowledged and that their defenses to coastal takings claims will become increasingly stronger as sea-level rise and coastal deterioration emerge as true emergencies and public health crises.
Saturday, October 23, 2010
Alexandra B. Klass (Minnesota) has posted Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy, forthcoming in the Ecology Law Quarterly. The abstract:
This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control law, but the role in each field is quite different. Early natural resources law was based significantly on conveying property rights in natural resources to private parties to encourage westward expansion and economic development. By contrast, pollution control law as it developed in the 1970s and 1980s was based on placing limits on such rights and creating government permit systems to meet environmental protection goals. This Article proposes that as scholars and policymakers consider approaches to developing wind and solar energy, it will be important to not rely too heavily on a property rights-based, natural resource development approach. Instead, this Article argues that an approach that integrates resource access into state and local permitting and land use planning frameworks may better meet development and environmental protection goals without creating new entrenched and potentially problematic property rights in natural resources. Moreover, because wind development and solar development present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development should be structured based on private solar easement transactions within a hospitable local zoning framework while wind development should be based on a state-wide siting and permitting structure with much more limited local government involvement.
Wednesday, October 20, 2010
From Cinnamon Carlarne:
The University of South Carolina School of Law invites you to attend the forthcoming conference entitled, “Three Degrees of Separation: Exploring Linkages between International, National, and Regional Climate Policy.” The conference will bring together leading thinkers to examine the implications of the 2009 Copenhagen Climate Change Conference for climate change law and policymaking at the international, national and local levels with particular regard to the relationship among, and the distinct problems posed by law and policymaking at each level. The objectives of the Conference are three-fold. First, it will analyze how the outcome of the Copenhagen Climate Change Conference - and subsequent international negotiations - affects the long-term survival and efficacy of the international climate change regime. Second, it will explore how the Copenhagen Conference was both influenced by, and influential on US domestic climate change law and policymaking efforts. Third, it will seek to improve understanding of the relationship between international, national and regional climate change governance and, in so doing, to consider some of the unique challenges the Southeast faces in developing state and regional climate strategies. In exploring these dimensions of climate policy, we hope to initiate a more nuanced debate on the current state of climate change law and policy at multiple levels of governance and the implications of this for existing and proposed efforts to address climate change.
To learn more about the Conference and to register, please visit the Conference website, http://www.law.sc.edu/separation/index.shtml and select the link for the registration brochure, http://www.law.sc.edu/separation/registration_brochure.pdf. Alternatively, please feel free to contact Professor Cinnamon Carlarne at email@example.com with any questions or comments.
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.
Tuesday, September 28, 2010
Craig Anthony (Tony) Arnold (Louisville) has posted Fourth-Generation Environmental Law: Integrationist and Multimodal. The abstract:
Friday, September 10, 2010
Michael Burger (Roger Williams) has posted It's Not Easy Being Green: Local Initiatives, Preemption Problems, and the Market Participant Exception, published in the University of Cincinnati Law Review, Vol. 78, No. 835, 2010. The abstract:
This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments -- along with the states -- positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their initiatives and the actual effect they have on federal schemes. Indeed, while environmental law has long sought a balance between federalization and devolution of regulatory authority, current preemption doctrine, as applied to federal "ceilings," almost exclusively favors federalization values. The market participant exception offers a means to correct this imbalance. This Article begins by providing a detailed discussion of the evolution of the market participant exception in the dormant Commerce Clause and preemption contexts and unpacking the rationales behind federal "floors" and "ceilings." It then analyzes the collapsing roles of governments and corporations as regulators and market actors, and recasts the work of local governments undertaking climate change initiatives as a "race to the top" of the market for "green" places to live, work, and invest. The Article then articulates a revised test for the market participant exception and illustrates through several case studies how the test can successfully empower local autonomy and enable local innovation without sacrificing the benefits of federal law.
Looks like an interesting article, and I can say with some confidence that it's the best land use article I've seen to riff off of a Kermit the Frog single (although now that I think about it, I'm surprised that more authors haven't noted the Muppet-like travails of Being Green).
Thursday, September 9, 2010
From Robin Craig at FSU:
Florida State University College of Law, Distinguished Environmental Lecturer Series. Presented by the Journal of Land Use & Environmental Law.
Kirsten Engel, Professor of Law, University of Arizona James E. Rogers College of Law, "Should Climate Change be the Subject of State Public Nuisance Liability Lawsuits?"
Wednesday, September 22, 3:15 p.m., BK Roberts Hall Room 102.
Followed by a reception in the Rotunda.
Jamie Baker Roskie
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
Monday, July 26, 2010
Robin S. Gregory (Decision Research), Anthony A. Leiserowitz (Decision Research), and Lee Failing (Compass Resource Management) have posted Climate Change Impacts, Vulnerabilities, and Adaptation in Northwest Alaska. The abstract:
Saturday, July 24, 2010
Again, if everything goes as planned, I will be away in Canadian waterways today, so I've arranged to post this somewhat topical article. Kimberley Celeste Gordy (J.D. Candidate, U. of Houston) has posted Dire Straits: The Necessity for Canadian Sovereignty in the Arctic Waterways,
Friday, June 25, 2010
Patricia Salkin (Albany) has posted Cooperative Federalism and Climate Change: New Meaning to 'Think Globally--Act Locally,' Environmental Law Reporter, Vol. 40, 2010. The abstract:
Omar Gonzalez-Pagan (J.D. Candidate, Pennsylvania) has posted The Lucas Exemption: How Takings Can Prevent the Erosion of the Public Trust Due to the Reclamation of Submerged Lands, Real Estate Law Journal, Vol. 38, Winter 2009. The abstract:
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.
Wednesday, May 19, 2010
Next month the American Association of Law Schools will have its mid-year meeting in New York, and one of the three primary subject matter workshops this year is the Workshop on Property, June 10-12. There will be a terrific program focusing on the property law implications of two major issues: the mortgage crisis, and global warming. Check out the brochure. From the write-up:
Why Attend? Two major crises in the last few years have exposed deep tensions and pressures on our understanding of property law. The foreclosure of more than 2 million homes, and the anticipated default of another 6 million mortgages has shaken common notions about the ability of consumers to understand real estate transactions and the terms of their mortgage contracts, posed stark questions about the failure of the law to limit the ability of the market to produce property transactions that created significant principal/agent costs, moral hazards, and externalities, and presented challenging questions about racial disparities in access to prime credit and in the underwriting of troublesome new mortgage products. Similarly, vigorous debates over the responsibility of industrialized countries to control global warming, the need to protect future generations from the effects of global warming, and the fair allocation of the burdens of reducing greenhouse gases similarly have posed challenging questions about the regulation of risk from activities on private property, the nature of property owners’ obligations to future generations, and the failure of regulation to control externalities from the use of property. Both crises raise serious theoretical and practical challenges to traditional notions about the comparative advantages of the free market, our ability to craft property laws that limit systematic risk without unduly discouraging innovation, and the continuing inability of the law to prevent racial discrimination, exclusion and exploitation. . . .
Who Should Attend? This workshop should be of interest to teachers of Property Law, Real Estate Transactions, Land Use Law, Environmental Law, Natural Resources, Indian Nations and Indigenous Peoples, Regulation, Financial Instruments, and Law and Economics. The workshop is designed to benefit property law teachers at all levels of experience. Our speakers and group leaders will include many of the most prominent and established people in the field, and also a substantial number of newer voices.
The early bird registration deadline is this Friday, May 21. See the website to register. Hope to see you all there!
May 19, 2010 in Climate, Conferences, Environmental Law, Financial Crisis, Mortgage Crisis, New York, Property, Real Estate Transactions, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 12, 2010
John R. Nolon (Pace) has posted The Law of Sustainable Development: Keeping Pace, forthcoming in the Pace Law Review. The abstract:
This article describes the emerging field of sustainable development law and examines whether it is up to the challenge it faces. In a world of finite resources overrun by sprawl, threatened by climate change, short on fuel, and long on greenhouse gas emissions, the law must keep pace. After discussing what sustainable development law is, the article considers the relationship between change in society and the evolution of legal principles, strategies, and practices, particularly with respect to land use, property, and natural resources. Documented in this review is the steady change exhibited in the common law applicable to the ownership, use, and preservation of natural resources, the rapid spread of zoning in the early 20th century, and the current explosion of climate change litigation and regulation. Based on these and other examples, the first half of the article demonstrates that the law can and does evolve in response to crises in society, particularly when lawyers, judges, professionals, and policy makers are trained to understand that law is an instrument for positive change. The article then turns to why law schools matter by drawing lessons from the author’s personal experience at Pace University School of Law.
Friday, April 2, 2010
Katherine Trisolini (UCLA) has posted All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, Stanford Law Review, Vol. 62, p. 669 (2010). The abstract:
In line with accepted theories of environmental law, many prominent environmental law scholars have dismissed the climate change plans of U.S. cities and other local governments, presuming that these efforts will have no more than a trivial effect on greenhouse gas emissions. Drawing upon economic theories, others find local “piecemeal” efforts not only ineffective, but also potentially harmful to the prospects for a successful national emissions reduction program. In contrast, this Article argues that local governments have core regulatory powers in domains that will prove critical to a comprehensive response to climate change. Following a trend in scholarship that moves away from rigid prescriptions for either centralized or decentralized environmental regulation, this Article envisions local governments as important players in a multilevel governmental effort that regulates greenhouse gas emissions from the bottom up and the top down.