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.
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!
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, May 7, 2012
Michael C. Blumm (Lewis & Clark) and Tim Wigington have posted The Oregon and California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict, forthcoming at 40 Boston College Environmental Affairs Law Review No. 1 (2013). The abstract:
This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the George W. Bush Administration’s unsuccessful attempts to change the compromise reached in the NWFP. The article then explains how decreases in timber harvesting and declines in federal payments have brought the counties reliant on these lands to the brink of bankruptcy, and analyzes two current legislative proposals aimed at increasing harvests on the O&C lands in order to bolster flagging county economies. The article concludes by identifying significant economic and environmental flaws in these proposals and suggests several alternative revenue-producing options that could provide economic security and diversity to the counties without eviscerating the key environmental protections provided by the NWFP and other federal environmental protection statutes.
The article looks like a fascinating interdisciplinary blend of law, policy, and history.
Wednesday, March 28, 2012
Shelley Ross Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model, forthcoming in Marquette Law Review Vol. 95 (2011). The abstract:
This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.
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
Saturday, March 24, 2012
During his great guest-blogging stint here in January, it appears that Stephen Miller (Idaho) was also busy finishing his article Building Legal Neighborhoods, which has been accepted for publication by the Harvard Environmental Law Review. The abstract:
Political and legal tools have emerged since the Seventies, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion and there has been scant analysis of how these tools might work together effectively. This article seeks to explore this trend, and further argues that cities consciously overlay these neighborhood legal tools. This approach is referred to in the article as a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving and in which residents feel comfortable participating. The article also provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.
Looks like a very timely and interesting piece.
Tuesday, March 20, 2012
David L. Markell (Florida State) has posted Climate Change and the Roles of Land Use and Energy Law: An Introduction, Journal of Land Use & Environmental Law, Vol. 27 (2012). It's the intro to a Symposium issue. The abstract:
The challenges posed by climate change are daunting and have spawned an enormous literature, indeed many literatures. The legal regimes that govern our use of land and energy have already been and will continue to be integral to the effort to devise effective responses. My aim in this introductory essay is to identify and review six aspects of climate change in an effort to capture some of the ferment that now exists as policy makers, scholars, and others wrestle with the challenges that climate change poses for extant legal regimes. I then briefly summarize the articles in this symposium volume.
Wednesday, February 29, 2012
Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:
In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.
This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.
February 29, 2012 in Affordable Housing, Agriculture, Beaches, Coastal Regulation, Environmental Law, History, Homeowners Associations, Property, Redevelopment, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 21, 2012
Sean F. Nolon (Vermont) has posted another article at the interface of land use and ADR: Do We Need Environmental Mediators? Indigenous Environmental Mediation: Exploring New Models for Resolving Environmental Disputes. The abstract:
According to the best practices of environmental mediation, mediators are professionals who come from outside the community. The conventional wisdom holds that this distance from the parties and the dispute increases the likelihood that the mediator will manage the process in an independent and neutral manner and decrease the likelihood of any substantive bias. Yet, in practice, many environmental mediations go forward without the use of outside mediators relying instead on mediators who come from within the community. While recognized in the theory as an option, the use of community mediators has not received much attention in the scholarship. When looking at disputes involving inside mediators more closely, a pattern of practice emerges that can benefit agencies and individuals in their decisions to employ environmental mediators. This article explores some of the disputes where inside mediators have been used to construct a complementary model to that of the outside model. This complementary model, labeled “indigenous environmental mediation,” relies on mediators who come from the community, instead of outsiders, to help parties improve relationships, ensure compliance with agreements, and advocate that decision making agencies respect stakeholder agreements. This article provides support for the continued use of outside mediators but also suggests a more intentional effort to employ indigenous mediators in environmental disputes.
Monday, February 20, 2012
Hannah Wiseman (Florida State) has posted Fracturing Regulation Applied, Duke Environmental & Policy Law Forum (forthcoming). The abstract:
America has a long history of oil and gas extraction, but a relatively new extraction technique called slickwater hydraulic fracturing has captured the attention of the public, academics, agencies, and politicians. The newly-revived focus on domestic oil and gas — and particularly on fracturing — has tended to center around the adequacy of environmental laws as written. A range of interested parties have questioned whether states, which shoulder the core responsibilities for regulating drilling and fracturing, have adequate regulatory regimes to address an array of potential environmental effects. The focus has tended to be on the text of regulations, however, and not on how regulations operate in practice: How states apply regulations by inspecting sites, noting violations, and enforcing violations when they believe that enforcement is justified. This paper expands the small literature that has emerged in this area, providing a preliminary glimpse into state environmental regulations applied to wells that are drilled and fractured. It briefly explores the types of violations that states have noted so far at fractured wells, the enforcement actions that they have issued in response, and the potential reasons for these patterns. Although much more detailed work will be necessary to accurately pinpoint regulatory patterns, the initial picture suggests a wide array of violations and enforcements associated with a range of potential environmental effects—many benign, but some serious. States have noted a number of substantial issues, from spills to improper maintenance of pits for waste, while others have tended to identify less pressing matters, such as operators’ failure to mow weeds around the wellhead. States’ enforcement responses to these violations also have varied substantially, perhaps due to differing policy directives and wills to enforce, budgetary needs, understaffing, or problems of regulatory capture.
Very interesting thoughts on what is fast becoming the critical issue in energy and environmental law and policy. I take pride in mentioning once again that Hannah was one of our outstanding guest-bloggers last year.
Thursday, February 9, 2012
Reed Benson (New Mexico) has posted Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States, Journal of Rural Law and Policy, Vol. 1, No. 1, 2011. The abstract:
Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective.
This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.
Friday, February 3, 2012
Holly Doremus (Berkeley) has posted Climate Change and the Evolution of Property Rights, University of California Irvine Law Review, Vol. 1 (2012). The abstract:
Climate change will unsettle expectations about both land and water. Those changes will reduce the extent to which existing resource allocations effectively serve societal interests. In the United States, we typically rely on market transactions to adjust property allocations as societal needs and interests change. Markets, however, will not adequately protect the collective, as opposed to the private, interests climate change will put at risk. Changes to underlying property rules will be needed if those interests are to be sustained.
Because current property rules stand in the way of efficient and effective adaptation to climate change, evolution of property law is an important aspect of adaptation. But because property rules are especially sticky, the needed changes will not come easily. Federal courts must play the keystone role because they control the interpretation of key constitutional doctrines. The chief legal impediment to climate adaptation at the moment is federal court resistance to changes in property rules. If that resistance can be softened, state courts and legislatures can, and likely will, make needed adjustments. Federal courts should be careful not to stand in the way of such adjustments, although they also have a role to play in ensuring that the costs of change are fairly distributed.
Wednesday, February 1, 2012
First, thanks so much to Stephen Miller for doing such a terrific job guest-blogging throughout January. Great stuff.
Next, we're proud to welcome Susan J. Kraham (Columbia Law School) as our guest blogger for the month of February. Here's Susan's bio:
Susan J. Kraham is a Senior Staff Attorney and Lecturer-in-Law at Columbia Law School's Environmental Law Clinic. Susan has spent her legal career representing public interest clients with a particular focus on environmental and land use law. Prior to joining the Environmental Law Clinic, Susan served as Counsel to the New Jersey Audubon Society. From 1998 until 2005 she was an Associate Clinical Professor in the Environmental Law Clinic at Rutgers Law School, Newark. Susan was a 1992 graduate of Columbia Law School. She also has a Masters in Urban Planning from New York University’s Wagner School. After graduation from Law School, Susan clerked for the Honorable Justice Gary Stein of the New Jersey Supreme Court. She was a Skadden fellow. Susan was also an echoing green fellow where she partnered on a community-based environmental justice project.
We're excited to have her on board, and we look forward to reading her posts!