Wednesday, January 21, 2015
In my recent article, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (Winter 2014), I review recent case law in New York, Pennsylvania, Colorado and West Virginia that delves into the extent of local authority to regulate hydraulic fracturing. I also list zoning and planning regulations and tools that may properly be implemented by local governments, and tools that should be reserved to state governments.
I conclude that the New York and Pennsylvania courts miss the mark. New York courts fail to distinguish between reasonable regulation of hydraulic fracturing and outright bans of the practice. Some questionable precedents in that state, one of which even a lower court labeled as "flawed", but felt obligated to follow, have skewed the results. New York also fails to acknowledge that bans are likely preempted, particularly where state statutes seek to prevent waste and protect correlative rights. Bans contravene both of those goals.
Pennsylvania oddly perverts the notion of Dillon's Rule to strike down a state regulation limiting local government action. My colleague, Joshua Fershee, perceptively breaks down the Robinson decision in "Facts, Fiction and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W.Va. L. Rev. 819 (Spring 2014). My analysis focuses on the Dillon's Rule issue, which the dissenting opinion correctly explains. Professor Fershee delves more deeply into that case, for those that are interested.
I conclude that, while local governments should not be able to ban hydraulic fracturing, many tools exist for local governments to employ. These tools include setbacks, common in zoning ordinances, impact fees and “adequate public facilities ordinances.” Zoning ordinances cover issues like noise, light and other visual impacts, road damage, blasting, dust, traffic, compatibility of the activity to nearby property uses, impact of the activity on property values in the area, adequate off-site infrastructure, adequate services (such as police and fire protection), affordable housing, the general health, the safety of the community, odors, potential groundwater contamination, methane emissions, habitat fragmentation, and degradation of environmentally sensitive areas. Local governments should not overreach their authority and infringe upon legitimate state interests, however.
I am presently working on a follow-up to that article, examining the environmental justice ramifications of the present state of affairs. Specifically, wealthy communities, like Santa Fe County, New Mexico can hire costly consultants to draft ordinances that purport to allow hydraulic fracturing, but present so many hurdles that the practice is essentially banned. On the other hand, poor communities, like Mora County, New Mexico, must rely on activist organizations that draft "Rights-Based Ordinances" that ban hydraulic fracturing, and are highly unlikely to withstand legal challenge. Although these organizations draft the ordinances free of charge, and sometimes will even represent the community in the court challenge, the communties are not protected from possible sanctions for frivolous court pleadings. In the end, wealthy communities can exclude LULUs like hydraulic fracturing, while poor communities will bear the burden. Although this circumstance is not new, the contrasts seem to be especially dramatic with respect to hydraulic fracturing.
Wednesday, October 8, 2014
I'm not sure how many land use profs find themselves teaching about the issue of implicit bias, but it certainly came up when I was running the Land Use Clinic at UGA. Race and attitudes toward race are expicit or implicit in so many land use issues, particularly in the South, where segregation-based land use patterns persist. (For more on this, see some of my previous posts on race and environmental justice, here, here, here, and here.)
I always found it a struggle to teach about the implications of race. Apparently, I'm not the only one, because a question by Ohio State's Amna Akbar to the clinicians' listserv earlier this spring sparked quite a conversation. Now Alabama's Tanya Asim Cooper has compiled a summary of that conversation and related resources, and posted it on the Clinical Law Prof Blog. I find it fascinating, and not just because my contributions are included. Whether you're a doctrinal or a clinical teacher, if you struggle to raise the issue of race with your students, I highly recommend you check it out.
Jamie Baker Roskie
Friday, September 19, 2014
All things climate change are about to descend on NYC. Revolving around next week’s UN Climate Summit (Sept. 23), more than 100 events are being planned for NYC’s Climate Week. Here are just a few:
People’s Climate March:
Sunday, Sept. 21 at 11:30 a.m.
Location: Meet at Central Park West, between 59th & 86th Streets in Manhattan. The march will end at 11th Ave. between 34th and 38th Streets.
Promoters are heralding this as a "massive, history-making march," with hundreds of coordinating actions throughout the world.
Interfaith Summit on Climate Change:
Monday, Sept. 22 from 9-11 a.m.
Location: Saint Peter’s Church, 619 Lexington Avenue, New York, New York
Morning discussions on ethics, spirituality, climate change and faith communities, divestment and renewable energy. Registration is required, but there is no admission cost.
UN Climate Summit:
Tuesday, Sept. 23
By invitation from UN Secretary-General Ban Ki-moon, more than 120 heads of state as well as other world leaders, including EPA Administrator Gina McCarthy, have committed to attend the summit, with a goal of galvanizing action to reduce emissions, strengthen climate resilience, and mobilize political will for a meaningful legal agreement in 2015.
Rising Seas Summit:
Location: Crowne Plaza Times Square, New York, NY
EPA Regional Administrator Judith Enck will be speaking at a lunch plenary session with other environmental leaders on the first day of this inaugural event. Online registration is available until Sept. 22 only.
Find more NYC Climate Week events at www.climateweeknyc.org and http://milanoschool.org/climateaction. Read more about NYC Climate Week events and other NYC sustainability initiatives at the EPA blog Greening the Apple.
Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (firstname.lastname@example.org, (631)761-7137).
Monday, September 8, 2014
Today, 20 years after approval of the original Comprehensive Conservation and Management Plan, the Long Island Sound Study released a draft updated CCMP. The Long Island Sound Study, co-sponsored by the EPA and the states of Connecticut and New York, is a partnership of federal, state, and local agencies, universities, businesses, and environmental and community groups. According to an EPA press release, the draft Plan emphasizes the principles of sustainability, climate change resiliency, environmental justice and ecosystem-based management.
Recognizing the significance of land use to wetland and watershed protection, the draft Plan highlights the need for
- Integration of transportation planning, conservation of energy and water, resiliency to climate change, and pollution control policies;
- Smart growth and low impact development to minimize the environmental impacts of new and existing development;
- Meeting numerous ecosystem-level targets such as increasing riparian buffers and open spaces; and,
- Fully involving and responding to the needs of underserved communities.
The draft Plan describes the benefits of these investments in economic terms, explaining that they will provide substantial returns for the regional economy.
"The financial value of goods and services provided to the region's economy by Long Island Sound Basin's natural systems ranges between $17 billion and $36.6 billion annually. Treated as a capital asset, the value of these natural systems, calculated using a standard 4% discount rate with a lifespan of 100 years, is $690 billion to $1.3 trillion (Kocian et.al., 2014). Unlike built systems that depreciate, however, natural assets often accumulate value over time, particularly if they are protected and restored. In addition, an estimated 191,000 direct and indirect jobs in the region result from that the healthy function of these natural systems, and the associated stewardship work."
With respect to implementation and land use, the draft Plan identifies as "Implementation Actions"
- Providing technical guidance for incorporating Low Impact Development/Green Infrastructure into development and redevelopment projects and through zoning and planning changes;
- Reducing the amount of impervious cover that discharges directly into waterbodies;
- Remediating brownfields;
- Tracking implementation and effectiveness of approved watershed plans by local municipalities;
- Promoting establishment and protection of riparian corridors and wetland buffers at the municipal level through development of local ordinances and promoting permanent land protection; and,
- Increasing land protection efforts by municipalities and land protection organizations that permanently protect wetlands and riparian areas and buffers.
Notably, however, these Implementation Actions are not identified as "Priority Implementation Actions." Of course, prioritizing of implementation actions is where the rubber hits the road, so to speak. Given that EPA and the LISS are currently accepting comments on the draft updated Plan, those of us concerned with NE region watershed management should take a close look at the draft Plan, with particular attention to the Implementation Actions and their designation -- or lack thereof -- as "Priority." A copy of the draft Comprehensive Conservation and Management Plan is available at the Long Island Sound Study website at http://longislandsoundstudy.net/Planupdate.
Public meetings on the draft plan will be held
- September 16, 1:00 to 3:00pm, in Westbury, NY at the Yes Community Center
- September 16, 6:00 to 8:00pm, in the Bronx, NY at Rocking The Boat
- September 17, 2:30 to 4:30pm, in New Haven, CT at Southern Connecticut State University
Public comments on the plan will be accepted via email and post until Saturday, November 8, 2014. Emailed comments should be sent to email@example.com. Mailed comments should be sent to:
EPA Long Island Sound Office
Stamford Government Center
888 Washington Blvd.
Stamford, CT 06904-2152
Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (firstname.lastname@example.org, (631)761-7137).
Friday, May 2, 2014
Well it is that time of the year again and most of the Land Use Profs' crew is attending the Annual Meeting of the Association of Law, Property, and Society. This year, the conference is in Vancouver, B.C. and I have to say this is the prettiest location for ALPS so far.
I spoke on a riveting panel on conservation easements this morning (shocker I know) and now get to sit back and listen to co-blogger Jim Kelly's talk: “‘That Side was made for you and me’: Unauthorized Use of Vacant Property in Inner City Neighbourhoods.” In this packed room, I enjoy the fact that Jim started with a song. His presentation discussed what might be categorized as a type of self-help improvement. Here is the official abstract:
This essay explores the social function of unauthorized uses of vacant properties, both houses and lots, in inner-city neighborhoods. Underutilized properties, particularly those abandoned by their owners, present obvious opportunities for non-owners to engage in uses that may not benefit them personally and/or may (or may not) confer social benefits. From squatters and scrappers to guerilla gardeners and anti-foreclosure activists, acquisitive and expressive “property outlaws” challenge the formality and durability of land ownership claims. By looking at contemporary phenomena such as Philadelphia Green, Take Back the Land, and Indiana’s Good Samaritan Law, the essay will sort out the constructive possibilities for supporting, ignoring and actively opposing unauthorized use of vacant inner-city properties.
The panel, which focused on violence and authorized/unauthorized uses of property. I particularly enjoyed Robin Hickey's paper about whether you can take back property that others have taken from you (in fancy terms: the right to recapture). I think my property law students would be most intrigued by Abraham Bell's talk about possession (they always want to talk about the phrase "possession is nine-tenths of the law").
Sunday, September 22, 2013
Nicholas Fromherz (Lewis & Clark) has posted From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects, 116 W. Va. L. Rev ___ (2013). Here's the abstract:
Since the United States enacted the National Environmental Policy Act (NEPA) in 1969, nations all around the world have adopted similar statutes. What started as a unique response to the American environmental movement grew to become a nearly global standard. Although the details of the regimes vary from country to country, there are two constants: (1) the regimes force the government to consider environmental impacts before conducting or authorizing projects, and (2) they allow some degree of public participation. This article focuses on the latter of these two features.
Public participation in NEPA-style regimes generally means public consultation: information is disseminated and civil society is allowed to comment. Depending on a range of factors — some political and some legal — comments may influence the circumstances under which a project takes place or whether it occurs at all. Though the public’s influence is often limited in practice, the mere fact of public participation at the project level — as opposed to participation at the candidate level through elections or at the issue level through referenda — is exceptional. In the U.S. and many other countries, NEPA and its counterparts represent a break from the normal rule of executive decision-making by encouraging public involvement and deliberative, participatory democracy.
Despite the progress, critics have accused these regimes of falling short. In practice, public consultation under NEPA-style frameworks is severely limited in terms of who participates, how many participate, and the extent to which this participation impacts the decision-making process. This is not surprising. By its very nature, consultation implies limited influence.
In this article, I argue that policy-makers, both domestic and foreign, should replace consultation with consent as the public-participation requirement in certain cases. Although the concerns leading to the inclusion of public consultation in NEPA and its foreign counterparts were many, one of the more important ideas was that those persons affected by environmentally significant projects should have a say in the matter. Unfortunately, the consultation approach has proven increasingly ineffective. If the goal is to match influence with stake, consultation is the wrong mechanism.
Requiring consent, even in a limited number of cases, may seem like an extreme remedy. Not so. It is an attractive way to respond to a situation inherent in many major public works (especially infrastructure and energy projects) and in large-scale private endeavors on public land (especially extractive projects). While the benefits of these projects are often spread around an entire nation or large region, the environmental costs are frequently concentrated within a small, local community (the site community). Requiring the consent of the local site community insures that its interest is adequately accounted for in the decision-making process.
I am always glad to see authors taking on the question of strengthening community control of land resources especially as a response to a particular impact, as Rachel Godsil and I have each written about in the urban context. Fromherz dedicates some important discussion to defining the affected community, a problem made even more interesting in his piece by the overlay of the rights of indigenous inhabitants.
Tuesday, July 23, 2013
I am not sure how many of you are readers of High Country News, but it is of course the go to source for news about the West (especially if you are interested in land use, conservation, or rural peoples). I get it in hard copy because even though you can get it electronically, it is hard to beat seeing their large format magazine with awesome images. An article by Ray Ring from the June 10th issue caught my eye and I thought might be interesting to some of you.
In Paradise at a Price, Ring examines how conservation goals collide with affordable housing. He uses Jackson, Wyoming to tell his tale but it is a story we have seen in many towns. Jackson has some special challenges because of its high percentage of publicly owned land, but we see similar patterns in several resort communities. The story is a simple one. Beautiful areas attract people. Beautiful areas with recreation opportunities in particular end up with communties dominated by fancy vacation homes and amenities for tourists. Real estate prices are high. But all those tourists and Californians with second homes still need goods and services. The problem is that employees of the stores, the ski resorts, the hotels, and the grocery stores can't afford to live in Jackson. This means we need afforable housing projects. Unfortunately, in areas like Jackson the affordable housing projects compete not only with other private residential development but also with conservation efforts.
This article was not about conservation easements, but its description of conservation easements in Jackson illuminated two somewhat conflicting concerns with conservation easements. I'll give you the facts and then explain my concerns.
- More than 97% of Teton County's land is public (owned by federal, state, or local government)
- This leaves only 78,000 acres of private land for development
- Much of this private land is covered by vacation homes for the wealthy
- 1964 local planning laws established overlay districts, protecting wildlife habitat and scenic views. This restricts development on 48,000 acres (leaving only 30,000 unrestricted acres).
- Conservation easements prevent development on 22,000 acres. Most (but not all) of the conservation easements are within the overlay districts
- 20,000 acres are too steep to build on (I think this may leave 10,000 unrestricted developable acres but I am not exactly sure what category these 20,000 acres fall into)
- Restrictions throughout the county limit things like building height (usually nothing over 2 stores) and include specific rules limiting construction near things like spawning areas and swan nests
Okay, so now my concerns. Note, there are many concerns here about affordable housing which are obviously just from looking at the facts above and are well explained in Ring's article, so let me just look to the conservation easement issue.
- Conservation easements are part of the problem on the affordable housing front. The restrictions on development puts up obstacles for people trying to build needed housing. Depending on your goals, you may be okay with that outcome but most of these conservation easements are ways for wealthy people to protect their views and open space (often with receiving attractive tax breaks). I know protecting these beautiful areas is important, but when we let private individuals make all the decisions about what to protect ... it makes me nervous.
- Conservation easements may not get you a lot of bang for your buck. The article states that most of the conservation easements in the community are in areas already protected by overlay districts. This makes me really curious about what type of compensation or development permit the landowners got in exchange for the conservation easements. What are they worth if land use was restricted without them. Admittedly, the conservation easements may have additional restrictions and will remain even if the County changes the contours and rules for the overlay districts. I don't have information about these individual conservation easements, and I am sure the Jackson Hole Land Trust would be pissed at perturbed by my claims but I have seen several examples from conservation easements I have dealt with directly where the landowner receives a large benefit for agreeing not to do something she never intended to do.
Just some food for thought
Friday, June 28, 2013
Helen Kang, director of the environmental law and justice clinic at GGU has informed us about a temporary staff attorney position. See the details below, and act quickly if you're interested. The application period closes July 12, 2013; with tentative start date of August 15, 2013
BASIC FUNCTION AND SCOPE OF JOB:
The Environmental Law and Justice Clinic at Golden Gate University School of Law in San Francisco is seeking a staff attorney with significant litigation experience to serve full-time, from August 15, 2013 to December 31, 2013; and from January 1, 2014 to April 30, 2014, to job share with another staff attorney. This is a temporary position and will not be extended.
ABOUT THE CLINIC:
Established in 1994, the Clinic is part of the law school and is staffed by students, two graduate fellows, and two full-time professors. The Clinic trains students to become effective, ethical lawyers, while providing excellent service to low-income communities and communities of color bearing disproportionate environmental burdens. The Clinic has successfully reduced pollution from refineries, power and manufacturing plants, and military facilities. Its work has also contributed to landmark decisions ensuring that California relies on renewable energy, conservation, and efficiency to fight climate change. See http://digitalcommons.law.ggu.edu/eljc/18/.
The attorney will have primary responsibility in fast-paced California Public Utilities Commission proceedings and in cases against pollution sources and government agencies, co-teach the Environmental Law & Justice Clinic seminar, and closely supervise law students in all aspects of case work.
Member of the California State Bar in good standing
Extensive litigation experience, with aptitude and ability to take primary responsibility in Clinic cases, including those involving trials
Superb analytical, research (factual and legal), writing, and oral communication skills
High degree of professionalism in all aspects of lawyering, including in dealings with staff, colleagues, and opponents
Familiarity with energy and administrative law preferred
Strong interpersonal skills to be able to effectively supervise students, collaborate with colleagues, and job share
Strong work ethic
Ability to adhere to the school’s policies, including the ability to handle confidential and sensitive information, and to deal with a wide variety of student concerns
Apply by July 12, 2013, through http://www.ggu.edu/jobs. Applicants must apply online via the GGU job board and upload a cover letter highlighting your qualifications, resume, writing sample, and list of references.
Jamie Baker Roskie
Wednesday, May 1, 2013
I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.
While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.
Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.
Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)
ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.
May 1, 2013 in Community Design, Crime, Density, Downtown, Environmental Justice, Housing, Local Government, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Friday, January 4, 2013
Living in Pennsylvania (as I now do) I feel compelled to see the new Matt Damon movie "Promised Land," which opened in local theaters yesterday. The movie is about fracking, and the trailers look very intriguing. (I saw the trailer while seeing Tom Cruise's new movie "Jack Reacher" which, while most notable for multiple visceral fight sceens and car chases, also has a land use angle - SPOILER ALERT the villians are developers trying to get an advantage in a development project in downtown Pittsburgh.)
Today I was searching for a review of Promised Land and I stumbled across this article on NPR.org, which had an interesting critique of a scene where local citizens vote on whether fracking would happen in their town.
The film remains in the realm of fiction as the town debates an upcoming vote on whether drilling and fracking should be allowed. In the real world, there's almost never a vote.
"In Pennsylvania, where this film was made, municipalities have very little authority over what happens," says Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council. "They certainly don't get an up-and-down vote."
Still, I think this movie is a "don't miss" for land use afficianados, and I plan to see it soon.
Jamie Baker Roskie
January 4, 2013 in Clean Energy, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Local Government, Oil & Gas | Permalink | Comments (0) | TrackBack (0)
Monday, May 14, 2012
Jessica Owley (Buffalo) has posted Neoliberal Land Conservation and Social Justice, Interational Union for Conservation of Nature Academy of Environmental Law e-Journal, 2012. The abstract:
Private land conservation programs in North America tend to convey the greatest benefits to those who are already relatively well off in terms of land, wealth, and quality of life. For example, conservation easements — the fastest growing method of land protection in the United States — reward landowners with cash payments and tax breaks. At the same time, these programs tend to focus protected land in areas with low population densities. These benign sounding programs can hamper social services by reducing tax revenues and preventing the development of socially desirable amenities like affordable housing. This article describes the emergence of conservation easements as a land protection mechanism, situating it within the worldwide trend of neoliberal conservation and emergence of new environmental governance systems dominated by private actors. Specifically, this article examines the social justice concerns of conservation easements including questionable use of public funding, inequitable distribution of environmental amenities, and concerns about democracy and accountability. Rethinking conservation easement placement, use, and enforcement along with reducing or removing the tax breaks associated with them would alleviate, but not erase, some of the environmental justice concerns.
I have good reason to think that we might be hearing more from Prof. Owley soon. Stay tuned!
Friday, May 11, 2012
As we wind down the final days of the UGA Land Use Clinic there's a flurry of activity. I'm gratified to report that, through the good work of our public interest fellow David Deganian and three semesters' worth of clinic students, the City of Atlanta Scrap Tire Commission has adopt a strategy largely based on our recommendations.
As reported on the Commission's website:
In 2010, approximately nine million scrap tires were generated in the State of Georgia, and it is estimated that one million of those were illegally dumped. Scrap tire dumping poses a substantial threat to both the citizens of the City of Atlanta and the environment. Stockpiles of waste tires create a breeding ground for mosquitoes and rodents. They also pose a significant fire hazard, and a scrap tire fire can lead to contamination of the air, water, and soil. Aside from these risks, scrap tires are unattractive and add to the blight of Atlanta’s neighborhoods.The City of Atlanta's Tire Commission has been created to alleviate this serious issue.
Student recommendations adopted by the Commission include:
Amending Atlanta’s Scrap Tire Ordinance to include provision whereby tire carriers must conspicuously display a “carrier decal” on their vehicles when in operation.
Including a provision in Atlanta’s Scrap Tire Ordinance requiring that scrap tire generators and carriers maintain state required documentation, including manifests.
Including a provision in Atlanta’s Scrap Tire Ordinance for fines of $1000 per violation per day for illegal tire dumping activity.
Amending the City of Atlanta Scrap Tire Ordinance to require scrap tire branding.
Lobbying the state legislature for the funding of the Solid Waste Trust Fund.
I'm so proud of the students and their hard work on this and other projects! You can read the Commission's full report here.
Jamie Baker Roskie
Thursday, May 10, 2012
Georgia’s Environmental Protection Division (EPD) is one of only a handful of state environmental agencies nationwide with no environmental justice policy, program, or employee. On May 2, Fulton County’s Board of Commissioners (Atlanta is the county seat) passed a resolution urging the EPD to “take swift action to develop, implement, and enforce regulations and policies to promote environmental justice for the citizens of Fulton County and the entire state of Georgia.” The resolution uses findings from GreenLaw’s Patterns of Pollution report to show the need for these measures. David Deganian, UGA’s Public Interest Fellow, authored the report, and Land Use Clinic students have been working with him to create environmental justice policies that can be adopted by local governments to prevent disproportionate siting of polluting facilities in low-income and minority areas. It's been my great pleasure to work with David for the last two years, and it's good to see his work getting official recognition.
Jamie Baker Roskie
Monday, March 26, 2012
I'm proud to announce that today UGA Law Public Interest Fellow David Deganian and the fine folks at GreenLaw published "The Patterns of Pollution: A Report on Demographics and Pollution in Metro Atlanta." They were assisted by the consultants of NewFields LLC (who have also helped us in our work in the Newtown community of Gainesville, Georgia).
From GreenLaw's media release:
The report analyzes publicly available information to identify eight types of air, water, and land pollution points and compares this pollution information with demographic data on people living in the 14-county region. Using cutting edge mapping technology to visually combine these areas, we were able to see an overall pattern across the region indicating that a person’s race, income, and primary language spoken have a strong relationship to his or her distance from pollution.
The report website features an interactive map where you can enter an address in the metro Atlanta area and view pollution points nearby.
This report contains extensive fact-based analysis of the impact of pollution on communities of color in Atlanta, and I think it will be an influential part of environmental justice initiatives in the region for years to come. Land Use Clinic students have been working with David and GreenLaw throughout his fellowship, and it's so exciting to see the work come to fruition in such a palpable way.
Jamie Baker Roskie
Tuesday, February 21, 2012
An interesting local government story from the L.A. Times: East Los Angeles, an unincorporated and predominantly Latino neighborhood of 126,000 in Los Angeles county has had its latest petition to incorporate as a municipality denied by the Local Agency Formation Commission (LAFCO.)
Unlike many states, which simply permit any unincorporated area to incorporate if it can gather enough signatures for an incorporation petition, California actually requires all proposed municipal boundary changes to be approved by LAFCO, and one of the major factors LAFCO considers is the fiscal viability of the proposed municipality. In this case, the LAFCO concluded that East L.A. lacks sufficient taxable resources to generate sufficient tax revenue to finance the municipal services (fire, police, etc.) that the new city would require.
East L.A.'s situation is interesting for many reasons. For one thing, it highlights what Michelle Anderson has referred to as the problem of municipal "underbounding." Take a look at the map of the Los Angeles basin below:
It's hard to read, but you can see that I have circled East LA in the center of the map. The white portion of the map to the west and north of East LA are all encompassed within the city of Los Angeles. The multi-colored territories to the East and South are other incorporated cities. You can see that aside from a few small "islands" of unincorporated territory, most of the urbanized part of LA county lies within some incorporated municipality. So what happened?
As detailed in Gary Miller's excellent book Cities by Contract, during the 1940s and 50s the two largest cities in LA county, Los Angeles and Long Beach, began aggressively annexing neighboring unincorporated land. Many unincorporated areas were apprehensive because they sensed that annexation was driven by a desire to acquire tax-rich territory so as to redistribute tax revenue from the annexed territory to the annexing municipality. These unincorporated areas could prevent annexation only by incorporating as municipalities themselves, but if they did so, they would then become responsible for financing their own municipal services, a potentially crippling burden. LA county was also worried about the annexations because, as LA and Long Beach grew and swallowed unincorporated areas, they took power away from the county. So the county and the unincorporated areas came up with an ingenious idea called "the Lakewood plan." Under the Lakewood plan, any incorporated municipality could "contract" with the county for the provision of services so as to take advantage of the county's economies of scale in the provision of services while allowing municipalities to retain the powers they really wanted: taxing, zoning, and school control. With the Lakewood plan in place, there was no disincentive for unincorporated areas to incorporate, and they did so with abandon. Today there are 88 incorporated municipalities in LA county.
So why did East LA not incorporate? Frankly, no one wanted to annex poor areas like East LA, so East LA had no reason to incorporate. And, even under the Lakewood plan, incorporated municipalities would still be required to finance their schools out of their own tax base, which is a very significant expenditure for a poor area. The result is that East LA remained unincorporated. So why incorporate now? And why are they being prevented from doing so?
The second question is somewhat easier to answer. After the rash of Lakewood plan incorporations, someone in California state government decided this system of willy-nilly incorporation was crazy, and the LAFCO was formed in order to create a more orderly process of dealing with municipal boundary changes.
Now the harder question: why would east LA want to incorporate in light of the crushing financial burden that would impose? Remember, by remaining unincorporated, East LA receives services from LA county that are highly subsidized by residents of incorporated cities, who are still required to pay property taxes to the county in addition to the fees they pay for the contracted services. Why forego this subsidy and have to pay your own way? Incorporating would give East LA control of its own zoning, schools, and tax base, but with such a minimal tax base they would apparently be better off (and LAFCO certainly thought so) getting their subsidy from the county.
According to the website for the East LA cityhood movement, the goal is the basic one of bringing local government closer to the people. LA county government is the largest local government in the United States, with a population of 10 million, but has only a five-person board of supervisors. If my remedial math serves, that means each supervisor governs roughly 2 million people.
The East LA incorporation drive runs counter to the received wisdom that municipal boundary change follows a kind of "public choice" logic in which the motivation of annexing cities is to loot the tax revenue of unincorporated areas and unincorporated areas are driven by the selfish desire to hoard their stash from being redistributed to the urban masses. Here, it seems, the desire to incorporate stems from a yearning for self-government by a group of people who perceive themselves as a distinct community within the larger city.
Richard Briffault writes that there are two competing conceptions of local government in our political system: the polis and the firm. Local governments are sometimes seen as little democratic republics, and other times as participants in a marketplace. East LA's incorporation petition seems to rest on the former conception of local government -- a city is a forum for enlightened self-government. The reason East LA's petition has been stymied, however, is because LAFCO adheres to the latter conception -- local governments are business organizations. It is telling in this regard that the principal reason LAFCO gives for disapproving the incorporation is that East LA lacks a sufficient number of big-box stores to support an independent city.
Wednesday, October 5, 2011
Slate has an interesting article on racist places names, a follow up to the controversy about the name of Texas Gov. Rick Perry's family hunting camp (a name I don't feel comfortable repeating here). I found this interesting because recently in Hall County, Georgia my husband and I traveled on Jim Crow Road. And this is not something that county officials have simply overlooked, because they proudly advertise the road as the location of a park and regional tennis center on this website. Now, whether the road is named after a person named Jim Crow, or after the pervasive and violent Southern system of racial segregation, to have a place name like this extant in 2011 seems tone deaf at best. Perhaps my perception is colored by the fact that we represent an African-American neighborhood in Gainesville/Hall County that was established under racial segregation in the 1930s and is still suffering separate, and unequal, treatment to this day. (My previous posts on this work are available here.)
Jamie Baker Roskie
Sunday, June 5, 2011
Soon after releasing the new version of his electronic land use casebook, Garrett Power (Maryland) has posted Wallace McHarg's Plans for a Greater Baltimore. Here's the abstract:
This essay considers the growth of the partnership between David Wallace and Ian McHarg into one of the nation’s dominant urban design and environmental planning firms. It focuses on the firm’s undertaking in the Greater Baltimore region in the 1950’s, 1960’s, and 1970’s. With the benefit of fifty years of hindsight it looks at the successes and failures of their plans for Charles Center, the Green Spring and Worthington Valleys, and the Inner Harbor. Surprisingly, prize-winning innovations praised in one generation came to be judged as the design flaws of the next. Less surprisingly, their plans to "design with nature" sometimes were used by their clients to promote racial and economic segregation.
This last sentence refers to the use of McHarg-Wallace's plans promoting ecologically sound suburban development for exclusionary planning practices even though the original plans called for environmentally sensitive siting of dense affordable housing. Check it out.
June 5, 2011 in Affordable Housing, Community Design, Density, Development, Environmental Justice, Environmentalism, Planning, Redevelopment, Scholarship, Suburbs | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 6, 2011
From Michael Gerrard at Columbia Law:
Center for Climate Change Law, Columbia Law School and The Republic of the Marshall Islands
invite you to attend an international academic conference:
THREATENED ISLAND NATIONS:
LEGAL IMPLICATIONS OF RISING SEAS AND A CHANGING CLIMATE
May 23 - 25, 2011
New York, New York
DAY ONE: THE STATUS QUO -- SHIFTING LEGAL OPTIONS IN A CHANGING WORLD
Scientific summary: How much time do we have?
Statehood and statelessness
Preserving marine rights: Fishing and minerals
DAY TWO: WHAT CAN BE DONE TO HELP, AND HOW TO DO IT
Resettlement and migration issues
Existing legal structures
A new international convention?
DAY THREE: DOMESTIC OPTIONS FOR SMALL ISLAND STATES
Engineering for the future
Law and policy choices
[Visit this link for] Further information, and registration to attend conference or to view live webcast.
Jamie Baker Roskie
Wednesday, March 23, 2011
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 9, 2011
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.
March 9, 2011 in Clean Energy, Climate, Environmental Justice, Environmental Law, Environmentalism, Green Building, Property, Property Theory, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)
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- March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities