Monday, July 30, 2012
Anyone who has practiced or studied land use law in a state with a strong environmental review process knows how that environmental review process often comes to override the land use permitting process. In particular, urban projects have often suffered from an environmental review process that works better for reviewing greenfield projects, and also from more litigious groups of neighbors that use environmental review procedures either to oppose the project, or seek "mitigations" that benefit neighboring property owners. On the other hand, efforts to ease the environmental review burdens on infill projects often run into a roadblock of environmental groups that believe exemptions for infill projects will likely only lead to more exemptions and a gutting of the entire law itself (the "slippery slope" argument).
This fight has been ongoing in California, and other states, for decades. Several infill exemption provisions from the state's California Environmental Quality Act ("CEQA", pronounced "SEE-kwa") look good on paper, but are essentially unworkable if there are litigious parties involved. Such unworkable exemptions are in the state's landmark SB375 legislation that seeks to link land use and transportation: the list of requirements for applicability of the exemption apply to, well, about absolutely nowhere. Another unworkable exemption is CEQA Guidlines section 15332, which is seldom used where litigation is possible.
With the passage of SB 226 in 2011, however, the state is once again taking a hard look at exemptions for urban infill projects. Under a mandate of SB 226, the Governor's Office of Planning and Research, now headed by Ken Alex, a well-respected former senior assistant attorney general who ran the California Attorney General's environmental division, has drafted a proposed new CEQA Guideline for urban infill exemptions that was released on June 25, 2012 after epic public commenting. The proposed CEQA Guideline is now going through formal rulemaking processes at the state's Natural Resources Agency. A cheat sheet on the new proposed infill exemption is available here. If you want to keep up-to-date on the California infill exemption hearings, you can do so by adding your name at this link.
California's purpose for pursuing the infill exemption is now structured in terms of the climate change debate, but decades ago, the need for such legislation was structured in terms of "sprawl" or "smart growth." We all know that it is harder to build in urban areas than in greenfields, and there needs to be a way to level that playing field and encourage urban infill. Following this latest effort in California will be a chance to watch this debate unfold once more, and now in the framework of the climate change debate.
Stephen R. Miller
Wednesday, July 25, 2012
The authors study land use near national parks and how those land uses affect biodiversity in the parks. The article is helpful for its results but also the methodology of studying and comparing land uses.
Extent of fragmentation of coarse-scale habitats in and around U.S. National Parks by Nathan B. Piekielek, Andrew J. Hansen -- Biological Conservation, Volume 155 (2012)
U.S. National Park Service land managers face a variety of challenges to preserving the biodiversity in their parks. A principle challenge is to minimize the impacts of surrounding land use on park condition and biodiversity. In the absence of ideal sets of data and models, the present study develops methods and results that demonstrate a coarse-filter approach to understanding the effects of land use change on habitat types for four pilot study-areas. The area of analysis for each park is defined by a protected-area-centered-ecosystem. Habitat types were defined by biophysical factors assumed to represent the distribution of vegetation communities as they may have existed prior to European settlement.
Present-day land use was overlaid on historical habitat and change in area and pattern was quantified for private and public lands separately. Results suggest that patterns of development are affecting study-areas differently. Therefore, the conservation challenges faced by each study-area are distinct to their landscape contexts. For some parks, the primary challenge is to work towards maintaining ecosystem condition in its present or near-present state while paying particular attention to habitats that are underrepresented on public lands. For other parks, the challenge is to address spatially aggregated land use that is affecting only a few habitat types. For still other parks, the challenge is to maintain connectivity with a regional network of protected lands and to undertake restoration projects where feasible. The present methods and results help to focus conservation attention on habitats that have been most impacted by land use change.
Tuesday, June 26, 2012
No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour. Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues. From Obamacare and Federalism's Tug of War Within:
In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions. And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal. For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.
. . . .
In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.
Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision. Professor Ryan has a new book on the subject called Federalism and the Tug of War Within.
And, so yes, there is a land use angle to the Obamacare decisions. But you already know that there's a land use angle to everything.
Monday, June 18, 2012
The ever prolific Robin Kundis Craig has a new book out:
Comparative Ocean Governance Place-Based Protections in an Era of Climate Change
Comparative Ocean Governance examines the world’s attempts to improve ocean governance through place-based management – marine protected areas, ocean zoning, marine spatial planning – and evaluates this growing trend in light of the advent of climate change and its impacts on the seas.This monograph opens with an explanation of the economics of the oceans and their value to the global environment and the earth’s population, the long-term stressors that have impacted oceans, and the new threats to ocean sustainability that climate change poses. It then examines the international framework for ocean management and coastal nations’ increasing adoption of place-based governance regimes. The final section explores how these place-based management regimes intersect with climate change adaptation efforts, either accidentally or intentionally. It then offers suggestions for making place-based marine management even more flexible and responsive for the future. Environmental law scholars, legislators and policymakers, marine scientists, and all those concerned for the welfare of the world’s oceans will find this book of great value.
Saturday, June 16, 2012
Here is a call for papers that may be of interest to some of our readers. I would love to submit somthing myself, but it seems like this is the 100th event scheduled for October 12th.
Call for Papers: Washington and Lee's "Climate Change in the Former Colonies: Challenges of Property and History"
From the CFP:
Washington and Lee University School of Law’s Law and History Center, in partnership with Virginia Sea Grant, will host a symposium on Climate Change in the Former Colonies: Challenges of Property and History. Recognizing the unique impact that the colonial legal experience continues to have on Eastern states, the symposium will focus on the application of legal historical research to contemporary problems and opportunities in the areas of policy-making, property rights, and hazard resilience in coastal communities. Panel presentations and potential topics include:
- How the colonial legal experience affects modern property rights and our responsiveness to climate change
- Historical and modern property doctrines—particularly nuisance, zoning, and eminent domain—and their relation to current climate change challenges and policies
- Changing notions of acceptable land use and natural resources
- Environmental hazard resilience policies and opportunities for their enhancement via legal strategies
We are open to suggestions of other related topics.
You can download the full CFP here:
Friday, June 15, 2012
Prof. Julian Juergensmeyer (Georgia State) writes to inform us about what looks like a truly fascinating opportunity:
The Center for the Comparative Study of Metropolitan Growth is pleased to announce a Study Space Program in Istanbul, Turkey March 31- April 6, 2013.
A Study Space is a week-long intensive workshop, in which academic scholars and professionals come together to study and develop solutions to the challenges being faced by cities throughout the world. This program will focus on disaster preparedness from an interdisciplinary perspective of land use policies, building restrictions, and the handling of environmental refugees. It will be a collaboration with the Payson Center for International Development at Tulane University's Law School in New Orleans and the law school at Bahcesehir University in Istanbul, Turkey.
The workshop will use the issue of earthquakes in Turkey as a focused topic and also as a springboard toward a larger discussion of disaster preparedness and urban land use in the modern world. Contact Prof. Juergensmeyer for any questions. With its interdisciplinary and transnational basis, this is surely going to be a really rewarding event.
Thursday, June 14, 2012
I meant to post this when it came out late last month but exam grading swallowed me up for a while; many of you have probably already seen this announcement elsewhere. Anyway, tomorrow (June 15) is the deadline to submit abstracts for what will surely be one of the highlights at next year's AALS. Via Shelley Saxer and Tim Mulvaney:
The AALS Section on Property is pleased to announce a Call for Papers for its joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA. This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come. It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.” Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.
The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.” Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges. The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law). The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.
Full-time faculty members of AALS member and fee-paid law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the Section on Property Law, at Shelley.Saxer@pepperdine.edu by June 15, 2012. Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers. Submitting authors will be notified of the results of the selection process by July 1, 2012. To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012. The selected authors will be responsible for paying their annual meeting registration fee and travel expenses. Questions should be directed to Professor Saxer at the above-noted email address.
Tuesday, June 12, 2012
I have been a bit quiet on the blog these past few days because I have been busy attending some amazing events. I already told you all about Widener's Constitutional Environmental Rights Workshop that I found inspiring for kick starting some long-planned work on the Public Trust Doctrine, but I also want to take a moment to praise a new Junior Environmental Law Scholar Works-in-Progress Workshop.
Amanda Leiter of American University's Washington College of Law organized an excellent weekend. Five of us submitted works in progress. We all read each other's work closely and a couple of others joined in to provide comments. We spent 60-90 minutes on each person, with indepth discussions. It was amazingly helpful. We ended on Saturday with a field trip to Kenilworth Park and Aquatic Gardens, a truly hidden jem on the Anacostia River. Events like this are remarkably productive and fun. So who out there wants to coordinate the first Land Use Works-in-Progress event? (please invite me)
Friday, June 8, 2012
News from Prof. Julian Juergensmeyer on a very exciting opportunity:
Urban Land Use and Environmental Law Position at Georgia State University’s College of Law
Georgia State University College of Law is searching for a tenure-track Assistant/Associate Professor specializing in urban environmental and land use law.
This position is part of a university-wide interdisciplinary hiring initiative of four faculty members—one at the GSU College of Law, and one each at the GSU Departments of Economics, Public Management and Policy, and Sociology—who will collaborate in research and teaching relating to shaping the future of cities. These GSU faculties share a common strength in urban policy, featuring internationally recognized experts in the areas of urban economics, social networks, urban planning, environmental law, and land use law.
This tenure-track position will be associated with the College of Law’s Center for the Comparative Study of Metropolitan Growth, whose mission is to advance interdisciplinary dialogue, academic exchange and research related to the challenges of cities. The Center’s current programs include: an interdisciplinary policy and research program (Urban Fellows Program); a certificate program in Environmental and Land Use Law; a dual degree program with Georgia Tech’s School of City and Regional Planning; a comparative urban policy course taught by foreign scholars; a summer legal study program in Brazil; and international and domestic conferences and symposia on environmental and land use law.
It looks like a fantastic land use/interdisciplinary opportunity.
Friday, June 1, 2012
Yesterday, I spent a delightful jam-packed six hours at a constitutional environmental rights workshop at Widener Law School (Delaware not Pennsylvania) hosted by James May and Erin Daly. The workshop brought in scholars from many corners of the US and elsewhere to talk about how environmental rights are and should be embodied in national and subnational constitutions.
The participants indulgently listened to me ramble about a very new project I have examining the constitutionalization of the Public Trust Doctrine. While many others have written cogently and persuassively about the role of the public trust doctrine (Sax, Thompson, and Blumm jump quickly to ming) and powerhouses like Robin Kudis Craig (I love that she has a wikipedia page) have even helpfully catalogued public trust language in state constitutions, I am seeking to explore the "so what" part of the question. If a state chooses to constitutionalize their public trust doctrine, does that result in any on the ground changes? Are those state more likely to have healthier environments? Are those courts likely to be more protective of the environment? Will the state legislatures feel obligated empowered to pass legislative protecting natural resources? These are the questions I am seeking to explore. (Any advice on how to do so would be warmly welcomed).
Thursday, May 31, 2012
Robin Kundis Craig (Utah) has posted The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses,' forthcoming in the George Washington Journal of Energy & Environmental Law. The abstract:
Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.
After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.
Saturday, May 26, 2012
My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012). The abstract:
For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.
This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.
The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits.
You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services. And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case.
Thursday, May 24, 2012
John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll. The abstract:
Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”
This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.
This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux. The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.
May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 22, 2012
Lynda J. Oswald (Michigan--Business) has posted The Role of Deference in Judicial Review of Public Use Determinations, forthcoming in 39 Boston College Environmental Affairs Law Review (2012). The abstract:
In Kelo v. City of New London, the United States Supreme Court emphasized its longstanding practice of deferring to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights and that the state courts are entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines: (1) the ways in which the role of deference in judicial review of public use determinations can vary between federal and state courts and among state jurisdictions; and (2) the difficult issues raised by the interplay between legislatures and courts in public use determinations. Because the Supreme Court’s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to assume increasing importance. Property owners, therefore, need to understand the issues raised by deference in judicial review of public use challenges in both federal and state courts.
I am excited for the upcoming AALS midyear workshop on Torts, Environment and Disaster.In particular, we will have a session addressing head on the opportunities and needs for mentoring and making connections across and within communities of scholars. In preparation for a session on 'Generations of Environmental Law' at the upcoming AALS midyear meeting, my fellow panelists and I have created a survey for environmental law professors. With this survey, we hope to get a sense of the types of mentoring available to environmental law faculty as well as get some suggestions for improvement. If you consider yourself a land use or environmental law professor, please add your voice. The survey is only 9 questions and should take 5-10 minutes. We will share the results at the conference and with the environmental law community via listserv and blogs. We appreciate your participation and our community’s efforts to improve connections among colleagues.
Thanks for your participation,
(co panelists = Daniel A. Farber, Bruce R. Huber, John Copeland Nagle, Hari Osofsky, Melissa Powers, and Kalyani Robbins).
Friday, May 18, 2012
The Big Apple is now greener than ever. On April 30, the New York City Council adopted some significant changes to its zoning code designed to promote distributed renewable energy and green building practices. These Green Zone Amendments will make it easier for New Yorkers to gain city approvals for small wind turbines, green rooftops, solar energy installations, skylights, and similar sustainable land uses on their properties. The NYC Department of City Planning has posted some short descriptions of the amendments on its website.
Among these new amendments are provisions that encourage rooftop wind turbines on tall buildings and that relax height and other restrictions for solar panels. It will be interesting to see whether the amendments are able to spur a major increase in small-scale wind and solar energy development in New York City in the coming years.
To read a New York Times interview of an NYC city planning official and real estate developer on the potential impact of these new amendments, click here.
We are absolutely thrilled to welcome Professor Jessica Owley to the Land Use Prof Blog. She's a law professor at the State University of New York's law school at Buffalo, and with her Ph.D. in environmental science and policy, she is involved in lots of interdisciplinary programs and activities. Many of you already know her for her cutting-edge scholarship on conservation easements and other topics, or for her helpful involvement in various professional service activities. She did some outstanding guest-blogging for us last year, but for those of you who may not be familiar with her blogging or her copius scholarship, here's her faculty bio:
Jessica Owley is an Associate Professor at the University at Buffalo Law School where she teaches environmental law, property, and land conservation. She joined the UB Law faculty after serving as assistant professor at Pace Law School from August 2009 to July 2010. She received her PhD in Environmental Science, Policy, and Management from the University of California-Berkeley in 2005, shortly after completing her JD at Berkeley Law in 2004.
Before entering academia, Owley practiced in the Land Use and Environment Law group at Morrison & Foerster in San Francisco. Prior to private practice, Owley clerked for the Honorable Harry Pregerson of the Ninth Circuit Court of Appeals and the Honorable Dean D. Pregerson of the Central District of California. Owley is a member of the California bar and admitted to practice in the Northern, Southern, and Eastern Districts of California and the Ninth Circuit.
Professor Owley's teaching interests are in the areas of property, environmental law, administrative law, and Indian law. While her general research is on land conservation and property rights, her current scholarship focuses on using property tools for conservation in the context of climate change.
The reference in the title is to Jessie's important guest post last year acknowledging that she really is a land use prof. That epiphany speaks to a larger truth about our field, which is that property, land use, environmental law, and local government law are all part of the same web of related issues for legal analysis, study, and policy conversations. We're delighted to welcome Prof. Owley on board, and we're looking forward to providing you with an even better forum to keep you interested in the broad array of important issues that constitutes land use.
Lisa Grow Sun posted this paper last year. It should be of great interest to land users: Smart Growth in Dumb Places: Sustainability, Disaster, and the Future of the American City. The abstract:
One of the many lessons of the recent earthquake and tsunami in Japan is that we cannot mitigate disaster risk through building codes and other structural solutions alone. Location is key to a community’s natural hazard vulnerability. Consequently, the most far-reaching and important question for disaster mitigation today is where we will channel the growth that will be needed to accommodate our expanding population. Yet, both environmental scholars and policymakers are promoting sustainability initiatives that will channel our country’s future growth into existing urban areas that are already extremely vulnerable to disaster. Indeed, many of these policies - and the legal tools used to implement them - are channeling growth, not only into particularly vulnerable cities, but into the riskiest areas of those cities. This Article is the first to identify and explore this critical tension between disaster mitigation and current sustainability policies.
The impact of current and future disasters on land use is a very important policy issue. Sun offers a different take on the conventional wisdom--which I have indulged in too--that more urbanism is always better. Sun suggests that we should be more discerning with our prescriptions.
Wednesday, May 16, 2012
Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation. Legal commentators have analyzed it as an environmental issue. As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights. Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land. The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.
Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.
“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”
The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .
Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”
This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas. Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:
Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.
The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good. In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.
May 16, 2012 in Agriculture, Economic Development, Eminent Domain, Environmental Law, Environmentalism, History, Houston, Judicial Review, Oil & Gas, Property Rights, Scholarship, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)
Tuesday, May 15, 2012
If you're hanging around the United Nations tomorrow, consider attending this interesting panel that Dean-elect Patricia Salkin will be moderating on Sustainability in Developing Nations: Opportunity for Public-Private Partnerships.
On behalf of the Government Law Center of Albany Law School, please consider joining us for a special program at the United Nations on May 16, 2012 that focuses on sustainability and public private partnerships.
The afternoon program includes Professor John Dernbach from Widener Law School (and his forthcoming book on sustainability will be released at the program), Professor John Nolon from Pace Law School and Professors Keith Hirokawa, James Gathii and Alexandra Harrington from Albany Law School.
The program is free and open to the public but an RSVP is required for security purposes. The announcement is here: http://www.albanylaw.edu/media/user/glc/upcoming_events/051612_UN_Sustainability_Program_Flyerv2.pdf
Sounds fascinating. Both property law and sustainability are among the keys to global progress over the next decades. Thanks to Keith Hirokawa for the pointer.