Monday, February 7, 2011
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 email@example.com.
For more information, contact Jessica Owley [firstname.lastname@example.org or 716-645-8182] or Kim Diana Connolly [email@example.com or 716-645-2092]
February 7, 2011 in Clean Energy, Climate, Conferences, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Local Government, New York, NIMBY, Nuisance, Oil & Gas, Planning, Politics, Property, Property Rights, Scholarship, State Government, Sustainability, Water | Permalink | Comments (3) | TrackBack (0)
Friday, February 4, 2011
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.
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.
Wednesday, February 2, 2011
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
Monday, January 31, 2011
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!
Tuesday, January 25, 2011
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!
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)
Tuesday, January 18, 2011
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
January 18, 2011 in Climate, Environmentalism, Federal Government, Industrial Regulation, Land Trust, Local Government, New York, Nuisance, Property Rights, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 11, 2011
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.’
Sunday, January 9, 2011
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.
January 9, 2011 in Books, Climate, Economic Development, Environmentalism, Green Building, Local Government, Property, Scholarship, State Government, Sustainability | 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
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.
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 firstname.lastname@example.org 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).