Wednesday, January 29, 2014
I am now serving on the board of a new law firm incubator. We are recruiting residents and senior attorneys. The resident job posting is below. (If you, or someone you know, is interested in the senior attorney position you may message me on Facebook or LinkedIn for more information.)
Fair Shake Environmental Legal Services is designed to incubate legal services start-ups in the area of environmental law for underserved, modest means clients. The purposes of the organization include the education of attorneys in serving modest means clients, increasing equal access to justice, and community empowerment for the tri-state region of Pennsylvania, Ohio, and West Virginia. Fair Shake advances local, community decisionmaking about community health, environmental protection and cleanup, and development by providing access to justice for individuals and groups that are currently underserved.
In our start-up phase, Fair Shake will have offices in Pittsburgh, PA and Kent, OH. We anticipate opportunities for geographic expansion. Fair Shake staff will include the following positions: an Executive Director and 2 Senior Attorneys (1 heading each office), 4 Resident Attorneys (2 per office) in 2-year contract positions, and a single Administrator position to serve both offices.
Residents, selected by a rigorous application process that includes the provision of draft business plans, will be trained to start-up their own firms upon departure from Fair Shake ELS. The incubator is designed to put residents in the context of the practice that they will run themselves, including practical skills growth in client development, identifying potential business investors, billing and pricing, law office management, and budgeting. During the time that residents practice environmental law in the incubator, they will also refine their business plan and secure investors under the guidance of senior-level staff at the incubator. Due to the constant production of resident attorneys from the incubator who will start up environmental practices for underserved clients, the incubator will catalyze businesses that will fill the gap in environmental legal services in the region over time.
Resident Attorney Job Description
Fair Shake ELS is looking for bright, motivated attorneys who want to build small or solo environmental law practices for modest means clients in the Appalachian Basin region. We are hiring attorneys interested in increasing access to justice in environmental matters and public participation in environmental decision-making. Our Resident Attorneys enjoy collaborative case development, but also can work independently.
Resident Attorneys will be part of a legal team in either Pennsylvania or Ohio dedicated to providing environmental legal services to modest means clients. Residents will build a client base geared toward their own environmental practice goals while training in the business of a law practice serving modest means clients. Resident Attorneys will spend time every week on both case development and business planning. Resident Attorneys are expected to work to start-up their own environmental practices within the tri-state region of Ohio, Pennsylvania and West Virginia after spending 2 years at Fair Shake ELS. Options will exist for continued support from the Fair Shake staff after the 2-year residency period.
Resident Attorneys will work on a diverse scope of environmental matters, but may focus in areas of desired practice development. Anticipated case matters include permit appeals, civil litigation, citizen suits, permit and rule comments, administrative petitions, land use hearings, gas lease reviews and negotiations, compliance counseling, community educational presentations, and opinion letter development. Residents will fully engage in all aspects of case development.
Resident Attorneys will report directly to the Senior Attorney heading their office.
Desired skills and qualities:• Training and experience in the full spectrum of environmental and administrative legal issues;• Training in client interviewing and counseling, administrative procedure, and trial advocacy;• Experience and training in legal drafting, research, and effective communication;• A strong interest in starting a small environmental legal practice in the tri-stateregion;• Demonstrated effectiveness in both collaboratively- and independently produced work product and performances;• A commitment to: promoting fair treatment and meaningful involvement of all people,regardless of race, color, national origin, or income in the development, implementation, and enforcement of environmental laws, regulations, and policies; providing legal representation to allow equal access to the environmental decision-making process and to foster equal protection under the law for the health, preservation and restoration of natural, scenic, historic, and esthetic values of the environment; educating young attorneys in legal services entrepreneurship and incubating start-up legal services organizations to serve the environmental legal needs of underserved low- and middle-income clients; and empowering communities and stimulating economies in the Appalachian Basin region by providing environmental legal services and counseling to allow the underserved to make decisions about practical and innovative solutions to complex environmental challenges across the region.
Candidates should possess:• A minimum of 1-3 years of legal practice experience (experience in a clinical program during law school may count as 1 year of experience in legal practice);• Current Ohio or Pennsylvania Bar membership or willingness to become licensed in those states within 6 months from the date of hire. Resident Attorneys must be willing to travel across the State or Commonwealth and to other Fair Shake offices as needed.
Compensation & Benefits
Fair Shake offers a competitive non-profit salary commensurate with skills and experience as well as a comprehensive benefits package that includes 15 days paid vacation, medical, dental, life insurance, disability, and a retirement savings plan.
E-mail a letter of interest, curriculum vitae, transcript, and a writing sample to Emily Collins, Executive Director, at email@example.com by March 31, 2014. The letter of interest should include the outline of a proposed business plan to serve modest means clients to meet their environmental legal services needs. Please include the proposed geographic scope of your practice, the particular areas of environmental law in which you would like to focus, a basic operational budget, and your practice goals. Fair Shake Environmental Legal Services is an Equal Opportunity Employer. We are committed to diversity in our workforce.
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.
Saturday, August 31, 2013
John Echeverria (Vermont) has just this week posted Koontz: The Very Worst Takings Decision Ever?. In it, he takes on both of the U.S. Supreme Court's holdings in its most recent land use decision and spells out how they will inhibit development planning discussions at the local level. Here's the abstract:
This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis. Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community. Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review.
August 31, 2013 in Community Economic Development, Constitutional Law, Environmental Law, Impact Fees, Planning, Property, Property Rights, Property Theory, Scholarship, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 23, 2013
I have been lucky enough to find myself in collaboration with Amy Morris of Aspen Environmental Group. We have been working on three papers about the renewable energy development, specifically the utility-scale solar projects in the California desert. As often seems to happen, our initial paper got too long and cumbersome and we ended up breaking it up. Two of the papers should be out this fall (depending on the pace of the student editors) and the first is available on SSRN in draft form.
This first piece, Green Siting for Green Energy, gives some broad strokes about solar energy siting and some of teh environmental tradeoffs. Particularly interested in the tradeoffs with agricultural lands, we'll have a whole separate paper on that topic some day soon. Hopefully this short piece (presented at George Washington last April) will whet your appetite.
One of the weirdest things about this article for me: we don't once use the phrase conservation easement. Although we do say conservation a lot and easement a few times. Just not together. We do talk about solar use easements though, which are nowhere near almost as exciting.
Amy Morris, Jessica Owley & Emily Capello, Green Siting for Green Energy, 4 J. Energy & Envt’l L. _ (forthcoming 2013).
energy development is critical to reducing greenhouse gas emissions.
Solar energy projects can replace polluting fossil fuels, but because
they are land-intensive, solar projects also have environmental costs.
Large projects have the potential to provide hundreds of megawatts of
electricity, but could also disrupt huge expanses of undeveloped land.
Arrays of solar panels on commercial rooftops or capped landfills allow
beneficial reuse of developed sites, but these projects are typically
small-scale (less than 1 MW). This tension between renewable energy
development and protection of precious landscapes (particularly desert
landscapes) creates a conundrum for environmentalists.
This paper examines the tradeoffs involved in siting solar projects, with a particular focus on California. The unique ecosystems and biodiversity in the California desert have made the tradeoffs between environmental benefits and costs of solar projects especially apparent. We look at the current hurdles for “greener” siting of projects in disturbed and developed areas, including the obstacles to permitting distributed generation (DG) projects, smaller-scale projects that may be built on parking lots or rooftops. While both large and small scale renewables are necessary to reduce greenhouse gas emissions, there are many opportunities for greener renewable energy siting. Greener siting must proceed on two fronts. First, as large utility-scale solar facilities will be an important component of a sustainable energy future, we need to improve the environmental review and sustainability of those facilities while being wiser about where we locate such projects. Marginal agricultural land and abandoned mine lands can provide untapped opportunities. Second, distributed generation with solar photovoltaics located across the state will be vital. The key to greener siting of DG is fostering the expansion of renewable projects in disturbed areas, particularly contaminated sites and rooftops and parking lots. A challenge of DG is the number of actors, permits, and environmental review process required. Facilitation and coordination of these processes will speed the journey to a solar energy future.
Friday, July 19, 2013
Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013. The abstract:
The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.
Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.
July 19, 2013 in Clean Energy, Environmental Law, NIMBY, Oil & Gas, Planning, Property Rights, Scholarship, Sustainability, Texas, Urbanism, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)
Well looks like we are about half-way through the summer (depending on the schools schedules in your family). Instead of embarking on a new project this summer, I have committed myself to finish up several projects that have been lingering. One project that is oh so close to completion is a book chapter I wrote for a Cambridge University Press book that Keith Hirokawa is editing.The book is entitled Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach and I think should hit bookshelves before the end of the year. Keith asked me to tackle the subject of nature versus perpetuity, with a particular emphasis on property law. I easily agreed because the topic seemed a natural one for me, but then I had trouble with it. My thesis was: perpetual static property rules make little sense in a changing world. Perfect! The problem was that Keith wanted something longer than a sentence.
As I delved deeper into these issues (and I would be hard pressed to label my approach "constructivist"), I became intrigued with thinking about why we have perpetual static tools. Now, I don't mean how they have evolved. I have written mind-numbingly boring fascinating articles about that in the past. Instead, I was intrigued with what it is about us as individuals that crafts our approach to land conservation the way that we do. In this research, I became intrigued by a few different pschological concepts. In very simple terms, we are not good at thinking about the future. First, when problems and issues are too big, our brains simplify them to make them digestible (or sometimes we just ignore them). Second, when making projections about future conditions, we tend to be overly optimistic. Layer these traits onto a policy for long-term land conservation in an era of increasing landscape changes and you start to see why we have problems. Although the chapter considers other subjects (including how current property laws fail to mesh with lessons from conservation biology), the brief psychology discussion was the most fun for me. Makes me pretty durn thankful that I work at an interdisciplinary school like Buffalo where I could just knock on the door of the psychologist (Chuck Ewing) whose office is next door to mine.
Interested in checking out the book chapter? You can find it here and the formal abstract is below. Interested in seeing what else appears in this book? A few other chapters have been popping up on SSRN as well including ones by Mike Burger, Jonathan Rosenbloom, Robin Kundis Craig, Tony Arnold, and Irus Braverman.
Property Constructs and Nature's Challenge to Perpetuity
Conservation biology and ecology (as well as our eyes and ears) tell us that nature is in a constant state of flux. Yet, models of land conservation focus on preserving the present state of land in perpetuity. Legal concepts that center on the status quo turn a blind eye to the fact that nature is ever-changing. This conflict is illustrated by examining both traditional property servitudes and conservation easements. These restrictions on private land often explicitly state that they are preserving today’s landscape in perpetuity. This chapter explores the inherent conflict between the changing natural world and rigid legal structures, detailing the struggles of applying principles like resiliency thinking and adaptive management to property tools for conservation. It also explores why this disconnect occurs including some discussion of environmental psychology
- Jessie Owley
Tuesday, July 16, 2013
Pamela Ko (Sage Colleges) and Patricia Salkin (Touro College) have posted What Every Land Use Lawyer Should Know About the Emerging Use of Health Impact Assessment and Land Use Decision Making, New York Zoning and Planning Law Report, Vol. 16 No. 6 (May/June 2013). The abstract:
The field of Health Impact Assessment is relatively new to the United States, but already a number of state and local governments are incorporating these assessments into land use planning and decision making. In five years, the use of HIA in the U.S. has increased dramatically with more than 100 HIAs completed or in progress in the U.S. from 2007 to 2010. This article provides a brief overview of HIA in the United States, describes how it is being used in other states with respect to land use decision making, and examines how HIA is starting to be incorporated into traditional land use and environmental decision making in New York.
Add public health to the list that makes land use one of the most interdisciplinary fields of legal practice.
Monday, July 15, 2013
Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013. The abstract:
Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.
Tuesday, July 9, 2013
This month's ABA Real Property "Professors' Corner" teleconference will focus on Koontz, the end-of-Term exactions that is one of the most significant Supreme Court property-rights cases in recent years. (Jessie Owley has discussed it here, and Tim Mulvaney and others have weighed in around the net). This Professor's Corner session should be a good one with several leading scholars participating. Here's the announcement:
Professors’ Corner: Wednesday, July 10, 2013: Koontz v. St. John’s River Water Management District: A Significant Victory for Property Rights?
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, July 10, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent. Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i.
For those that haven’t already seen it, here’s a link to the opinion:
Please join us Wednesday for this great program!
July 9, 2013 in Caselaw, Conferences, Conservation Easements, Constitutional Law, Environmental Law, Federal Government, Property Rights, Scholarship, Supreme Court, Sustainability, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
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
Tuesday, June 11, 2013
Michael C. Blumm (Lewis & Clark) and Andrew B. Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been. The abstract:
The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations.
This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.
Monday, June 10, 2013
This Essay, based on a presentation at Duke Law School’s 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services and why it is worth considering using the ecosystem services concept in public land policy. Part II proposes several key research paths that must be addressed before federal lands can be effectively managed for ecosystem service flows. Part III bears down on the different roles federal lands might play in promoting or participating in markets for ecosystem services.
Wednesday, March 13, 2013
Craig Anthony (Tony) Arnold (Louisville) has posted Framing Watersheds, forthcoming in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach, Keith Hirokawa, ed., Cambridge University Press, 2013. The abstract:
Watershed institutions have emerged in the U.S. out of the structural fragmentation and functional inadequacies of several areas of law and policy. While these institutions organize governance, planning, and management functions around a type of ecosystem (i.e., watersheds), they are highly diverse and evolve over time. This book chapter seeks to understand the diversity of watershed institutions by employing framing analysis to identify the many cognitive and socio-political frames by which the legal system conceptualizes watersheds. More importantly, the chapter analyzes whether watershed institutions have adaptive capacity and can promote ecological and social resilience over time. The processes of multiple framing (multi-framing) and reframing, as seen in several case studies of multi-faceted and evolving watershed institutions, offer considerable promise for society and its watershed institutions to adapt to complex and dynamic conditions. The book chapter explores the barriers to and problems with multi-framing and reframing processes, as well as the opportunities for and benefits of multi-framing and reframing, in light of emerging scientific and social theories about resilience and systemic change.
Tony is a friend of this blog and an occasional Contributing Editor, as well as a leader in the emerging areas of sustainability and adaptive management. Looks like an interesting volume by Keith Hirokawa and others.
Thursday, March 7, 2013
Dave Owen (Maine) has posted Taking Groundwater. The abstract:
In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.
This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.
The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.
An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.
March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 20, 2013
John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013). The abstract:
We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.
Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.
Wednesday, February 13, 2013
The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:
Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.
This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.
Cost and Registration
The symposium is free and open to the public.
Registration is suggested by Friday, February 15.
To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
February 13, 2013 in Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Federal Government, Local Government, Oil & Gas, Politics, Scholarship, State Government, Wind Energy | Permalink | Comments (0) | 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)
Tuesday, January 1, 2013
Robin Kundis Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective, forthcoming in Public Land & Resources Review (2013). The abstract:
When President Harry Truman proclaimed federal control over the United States’s continental shelf in 1945, he did so primarily to secure the energy resources — oil and gas — embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: First, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources.
Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This
Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.
Tuesday, December 18, 2012
Sometimes it is the studies with obvious sounding results that are the most helpful. A recent study of protected forest areas in Costa Rica examined levels of regrowth in those areas. Previously studies had really only assessed whether protecting areas prevented degradation. Happily, the study reveals that not only do you prevent deforestation and degradation by setting up protection areas, you also get some reforestation and improved forest health. Interestingly, the results did not vary by level or method of protection. Just setting aside the land made reforestation more likely. (Unless you are at a university or employer with access, you may have to pay for the article, which will appear in the next edition of Conservation Letters.) Abstract Below --
Global efforts to protect forest biodiversity and ecosystem services rely heavily on protected areas. Although these areas primarily aim to prevent losses from deforestation and degradation, they can also contribute to restoration. Previous evaluations of protected area impacts focus on avoided deforestation and fires. In contrast, we focus on the additional regrowth induced by Costa Rica's renowned system of parks and reserves. We use a quasi-experimental empirical design to control for confounding baseline characteristics that affect both regrowth and the assignment of protection. Between 1960 and 1997, an estimated 13.5% of previously unforested lands inside protected areas reforested because they were afforded protection. The level of additional regrowth does not vary by the strictness of protection. As in previous studies of protected area impacts on avoided deforestation, estimators that do not account for non-random assignment of protection can overstate protected areas’ impacts on regrowth by nearly double.
- Jessie Owley
Friday, November 23, 2012
Tony Arnold (Louisville) sends word that he has co-authored a chapter with Lance Gunderson (Emory--Environmental Studies) called Adaptive Law, forthcoming in the book Resilience and Law, Craig R. Allen & Ahjond S. Garmestani, eds., Columbia University Press, 2013. The abstract:
This book chapter proposes a bold sweeping set of characteristics of "adaptive law": features of the legal system that promote the resilience and adaptive capacity of both social systems and ecosystems. Law, particularly U.S. law, has been characterized as ill-suited to management of natural resources and the environment for resilience and sustainability. The maladaptive features of U.S. law include narrow systemic goals, mononcentric, unimodal, and fragmented structure, inflexible methods, and rational, linear, legal-centralist processes. This book chapter proposes four fundamental features of an adaptive legal system: 1) multiplicty of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist proceses with feedback loops and accountability. It then discusses these four features in the context of several socio-ecological issues and identifies needs for future study and development of adaptive law, particularly in light of panarchy theory about how complex, adaptive, interconnected systems change over time.
As many land use lawyers already know, Prof. Arnold is one of the leading scholars in establishing the emerging area of adaptive law; this collaboration with Prof. Gunderson looks to be a very helpful starting point for comparing ecosystems and social systems with respect to adaptation to changing circumstances.