Land Use Prof Blog

Hirokawa on Property, the Environment, and Ecosystem Services

Keith Hirokawa (Albany) has yet another timely and interesting-looking article.  Three Stories About Nature: Property, the Environment, and Ecosystem Services, forthcoming in the Mercer Law Review.  The abstract:

The relationship between our understanding of nature and how we allocate rights to property is a necessary but indeterminate one. This article explores three different approaches to this understanding – Property, Environment, and Ecosystem Services – to illustrate different resolutions to an otherwise basic controversy over competing claims to property in natural things. Ultimately, this analysis reveals the conceptual commitments and legal consequences involved in ‘ecosystem services,’ and how the ecosystem services story attempts to converge economics and ecology in property. Ecosystem services casts the character of nature as ecosystem functionality, the value of nature as economic value in goods and services, and the use of nature’s goods and services as a benefit to human well-being.

By looking at the ways the ecosystem services approach diverges from other descriptions of nature, this article also explores how property may react and adapt to the values embodied in ecosystem services. The ecosystem services approach provides an articulation of property value’s dependence on ecosystem influences, and as a result, deflates the importance of property boundaries; challenges to ecosystem services will invariably arise where property value is contingent on ecosystems processes occurring on another’s property. This article argues that the ecosystem services approach results in property without boundaries, in which boundaries become less relevant not just for the process of identifying nature, but also for identifying property interests.

Another really helpful addition to the literature.  Keith has provided a number of very interesting articles this year!

Matt Festa

Adler on Climate, Water, Agriculture, and Drought

Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review.  The abstract:

This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.

A significant paper on drought and the increasingly alarming state of U.S. water resource law.

Matt Festa

Doremus (and many more) on Adaptive Management

Holly Doremus (Cal-Berkeley) collaborated with nine other scholars and two staff members from the Center for Progressive Reform to produce Making Use of Adaptive Management. Here's the abstract:

Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts.

This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.

The nine other scholars listed as co-authors (Andreen, Camacho, Farber, Glicksman, Goble, Karkkainen, Rohlf, Tarlock and Zellmer) make this white paper an all-star production. As an environmental 'greenhorn', I found the explanation of the concept of adaptive management straightforward and compelling. The case studies illustrate not only best practices but cautionary tales belying elevation of adaptive management as a panacea for the protection of all complex ecosystems.

Jim K.

Kornfeld on Natural Resources Damages and BP Deepwater Horizon

Itzchak E. Kornfeld (Hebrew University of Jerusalem) has posted Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, Environmental Affairs, Vol. 38, No. 2.  The abstract:

This Article posits that in its role as the lead agency among the United States’ natural resources trustees, the National Oceanic & Atmospheric Administration’s piecemeal assessment of natural resources damages, i.e., valuing one dead bird at a time or the death of just a tract of marsh, fails to consider the inherent worth or the value of the entire ecosystem. Valuing the destruction of the entire ecosystem as a result of the BP Deepwater Horizon well blowout is the best way to assess the damage in the Gulf Coast, particularly in south Louisiana. That crude oil spill re-sulted in an estimated 53,000 barrels per day, and a total volume of 4.9 million barrels that despoiled the waters of the Gulf of Mexico and the surrounding shorelines. As a consequence of the spill, thousands of birds, turtles, fish, and marshlands were left to die.

Matt Festa

Blumm & Guthrie on Internationalizing the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012).  The abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.

Matt Festa

Law and the Human Factor

I just received the Spring newsletter of the Association for Contemplative Mind in Higher Education. This issue has a thoughtful essay by Ajay Rastogi, an environmental educator from India.  An excerpt:

I work in the area of nature conservation, sustainable agriculture, community-based enterprises and fair-trade in India and neighboring Himalayan countries. Over twenty years ago when many of my friends and I finished our university degrees in environmental sciences, we joined different organizations to contribute our efforts to saving the environment. Most of us and our colleagues at work carried a strong conviction that conservation could be achieved by improving knowledge and awareness. We worked with considerable passion and commitment, across different sectors of society, to try and bridge the gaps in people's understanding, providing information about “why” and “how” to protect the environment and conserve nature.

The result was that more books and films were produced, and more travel and workshops were planned, as these were considered the means toward our ends.

Some of these efforts may have contributed to a success story here and there, but it appeared to me that conservation education remained in the same domain as cognitive learning, and that it often failed to transform people to translate into action. To an extent, environmental education turned out to be part of the same educational riddle that lies at the root of the sustainability question. How can environmental education help not only make people aware, but motivate them to take the actual steps in their personal and community life that reflect their commitment as the stewards of natural ecosystems?

I began to realize that we need a paradigm shift in our approach to environmental education. I also began to feel that at deeper levels, environmental concerns are in many ways akin to other important societal concerns such as violence, hunger, drugs and corruption. None of these can be addressed through scientific, technological and policy solutions alone or just by enhancing knowledge, awareness or income levels. To maintain ecosystems, conserve biodiversity and keep the earth elements healthy (soil, water, air), nothing less than a radical change in human behavior is required.

How does one bring about behavioral transformation? I began to search for approaches. I located a master’s course in Applied Ethics and left my job in the Food and Agriculture Organization of the United Nations to study. The ethical and moral theories presented in the courses made strong arguments that appealed to the rational mind, but still could not penetrate through to the deeper layers of beliefs and thought processes that affect changes in behavior. Appeals to value systems have limitations in promoting the attitudinal changes that would result in more sustainable living. Ethical discourse is often just a piece of good conversation. Most people will only make adjustments in their lifestyle for things that they really care about!

Rastogi is not the only scholar considering how the human element plays a role in policy-making and problem solving.  I'm also reading David Brooks' new book The Social Animal: The Hidden Sources of Love, Character, and Achievement.  Brooks' inspiration for the book was his insight that the human equation is being left out of policymaking.  Here's an excerpt from a piece on NPR:

In Washington, D.C., which Brooks calls "the most emotionally avoidant city on Earth," Brooks notes that decisions are made based on the assumption that people are cold, rationalistic individuals who respond to incentives. Those assumptions didn't quite match what the research in other fields began to illustrate, however.

"Scientists, philosophers and others were developing a more accurate view of human nature, which is that emotion is more important than reason, that we're not individuals — we're deeply interconnected," Brooks says. "And most importantly ... most of our thinking happens below the level of awareness."...

Instead of relying on rational decisions, Brooks says, people tend to be influenced by their underlying, unconscious emotional state, which is in turn influenced by the social relationships surrounding them. For example, Brooks has covered education reform for 20 years and writes that he has seen little improvement from multitudinous policy changes.

"The reality of education is that people learn from people they love. But if you mention the word love at a congressional hearing, they look at you like you're Oprah," he says.

I feel like people often look at me like I'm Oprah.  Each semester I try to teach  my students about emotional intelligence, underlying values, and even mindfulness - non-rational aspects of the human experience that have a profound impact on decision and policy making.  Even the students who are grateful to learn about this are, at the same time, skeptical and worried about surfacing all this squishy stuff in the "emotionally avoidant" world of the law school and lawyering.

It's something I'm thinking a lot about as I prepare for our panel discussion on teaching about values at the upcoming "Practically Grounded" conference - how do we engage in best practices of law teaching, which (to me) includes tackling the range of human emotions and experience, while helping our students feel safe and sane?

Jamie Baker Roskie

Rule on Sharing the Wind

Troy Rule (Missouri) has posted another interesting paper: Sharing the Wind, from The Environmental Forum, Vol. 27, No. 5, pp. 30-33, September/October 2010.  The abstract:

Landowners today are increasingly selling or leasing to others the right to use the wind flowing across their land to generate electric power. For the first time in history, the right to capture wind in some areas of the country has become marketable and highly lucrative. This article describes landowner conflicts over the wind turbine wake interference in the context of commercial wind energy development. The article contrasts wind currents with water, oil, and wild animals and ultimately advocates an “option approach” to govern situations when neighbors compete with each other over scarce wind resources. 

Great title, too.  We hope to hear more from Prof. Rule soon. 

Matt Festa

Hudson on Federal Constitutions, Global Governance, and Climate Change

Blake Hudson (Stetson) has posted Federal Constitutions and Global Governance: The Case of Climate Change, forthcoming in the Indiana Law Journal, Vol 87 (2012).  The abstract:

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments exclusive regulatory authority over certain subject matters constrain national governments during international negotiations - a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. At the same time, federal nations that grant subnational governments exclusive control over certain subject matters are seeking to maximize the benefits of decentralization in those regulatory areas. The difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. For example, recent scholarship demonstrates that U.S. federalism may jeopardize international negotiations seeking to utilize global forest management to combat climate change, since subnational forest management is a constitutional regulatory responsibility reserved for state governments. This article expands that scholarship by undertaking a comparative constitutional analysis of five other federal systems - Australia, Brazil, Canada, India, and Russia. These nations, along with the U.S., are crucial to climate negotiations since they account for 54 percent of the world’s total forest cover. This article reviews the constitutional allocation of forest regulatory authority between national and subnational governments in these nations to better understand potential complications that federal systems present for global climate governance aimed at forests. The article concludes that federal systems that maintain three key elements within their constitutional structure are most capable of agreeing to an international climate agreement that includes forests, successfully implementing that treaty on domestic scales, and doing so in a way that maintains the recognized benefits of decentralized forest management at the local level - 1. national constitutional primacy over forest management, 2. national sharing of constitutional forest management authority, and 3. adequate forest policy institutional enforcement capacity. The article also establishes the foundation for further research assessing how the constitutional structures of federal systems lacking key elements may be adjusted to achieve more effective climate and forest governance.

Prof. Hudson is also part of the group--with Lincoln Davies (Utah), Brigham Daniels (BYU), Lesley McAllister (San Diego), and our guest Hannah Wiseman (Tulsa)--who very recently relaunched the Environmental Law Prof Blog on our Law Professor Blogs Network.  Welcome and congrats to them, and check out Prof. Hudson's paper. 

Matt Festa

Klass on the Public Trust Doctrine and the Siting of Wind and Solar Projects

Alexandra Klass (Minnesota) has posted Renewable Energy and the Public Trust Doctrine, 44 UC Davis L. Rev. __ (forthcoming 2011).  Here's the abstract:

This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values.

Jim K.

Foster on Collective Action and the Urban Commons

Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.

Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.

This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.

Jim K.

Hirokawa on Disasters and Ecosystem Services Deprivation

Keith H. Hirokawa (Albany) has posted Disasters and Ecosystem Services Deprivation: From Cuyahoga to the Deepwater Horizon, Albany Law Review, Vol. 74, No. 1 (2011).  The abstract:

On April 20, 2010, an explosion on the Deepwater Horizon oil rig resulted in the release of substantial amounts of oil into the Gulf of Mexico, threatening the viability of some of the world’s most essential ecosystems. Due to both the scale of the damage and the circumstances regarding the risks involved, the event has been appropriately labeled as a disaster. However, the Deepwater Horizon incident has also mobilized a large-scale investigation into the living technology through which the Gulf of Mexico and its ecosystems provide essential, life-supporting ecosystem services. This essay explores the manner in which environmental disasters require us to adapt our understanding of nature to a changed environment, forcing us to face the loss of valuable services provided by functioning ecosystems. This essay discusses the role of environmental disasters in the development of environmental law, then focuses on the opportunities provided by ecosystem services research in calculating the ecological, social, and economic value of natural resources impaired in such circumstances.

That's two today from the Albany junior profs!

Matt Festa

Osofsky on Diagonal Federalism and Climate Change

Hari M. Osofsky (Minnesota) has posted Diagonal Federalism and Climate Change: Implications for the Obama Administration, Alabama Law Review, vol. 62 (2011).  The abstract:

The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal).

After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for under-standing how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policy-making.

The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, non-govermental organizations, corporations, and government.

Matt Festa

Salkin on Backyard Chickens

I must admit that whenever I see an announcement of a new article by Prof. Patricia Salkin (Albany), I make sure to do a thorough check of the blog archives because she is so prolific (putting the rest of us to shame) that I don't want to accidentally double-post.  But this one seems pretty unique, and because we are on record for posting about urban chickens, the local food movement, and agricultural urbanism, it's great to see this timely article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, published in Zoning and Planning Law Report, Vol. 34, No. 3, p. 1, March 2011.  The abstract:

As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law.

It's a really interesting concept and one that we will be hearing much more about in the near future.  I have friends in town who live next to a would-be urban chicken spot (so I hear both pro and con about it), and it's an innovative approach to modern land use, and it needs regulatory attention.   

Matt Festa

Rule on Airspace in a Green Economy

Troy A. Rule (Missouri) has posted Airspace in a Green Economy.  The abstract:

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners‘ airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners‘ existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners‘ incentives and capacity make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.

Troy was on a very good land use panel at ALPS with some of our blog friends, and we might be fortunate enough to hear more from him later this year (hint, hint). 

Matt Festa

Cleveland's EcoVillage

Dennis Keating (Cleveland State) and Wendy Kellogg (Cleveland State-Urban Affairs) have posted Cleveland's Ecovillage: Green and Affordable Housing Through a Network Alliance.  The article offers a case study of EcoVillage, a transit-oriented affordable housing project in the Detroit Shoreway neigborhood of Cleveland.  Here's the abstract:

This article presents a case study of the inter-organizational network that formed to produce four housing projects in Cleveland's EcoVillage designed to integrate social equity and ecological stewardship as the basis for neighborhood redevelopment. Our paper builds on concepts of community development and housing production through inter-organizational networks spanning nonprofit, public, and private organizations that developed and supported four green and affordable housing projects. We are interested in understanding how development of the housing projects changed and connected traditional neighborhood development and ecologically-oriented organizations and how their interaction changed the practice of housing production and environmental and sustainability advocacy locally and regionally. The results of the study reveal that the marriage of green and affordable housing in Cleveland, despite some challenges, was viewed as important and beneficial by the organizations involved, and resulted in a range of demonstration projects that not only changed the EcoVillage, but affected other neighborhood housing projects in Cleveland as well. The projects resulted in enhanced capacity for green housing production through creation of a new network of organizations spanning the housing and environmental sustainability fields of practice that continues to support sustainable housing and neighborhood development in Cleveland.

Jim K.

 

Salkin and Nolon on Sustainable Development and Climate Change for Planners and Attorneys

Patricia Salkin (Albany) and John Nolon (Pace) have posted Integrating Sustainable Development Planning and Climate Change Management: A Challenge to Planners and Land Use Attorneys, published in Planning and Environmental Law, Vol. 63, p. 3, March 2011.  The abstract:

This essay is based on our new book, Climate Change and Sustainable Development Law in a Nutshell (West 2011) which describes the close relationship between sustainable development and climate change management. It begins with a discussion of recent discussions and agreements at the international level and it provides a brief history of sustainable development and climate change policy. The article then explores national and local strategies to address sustainable development goals. Local planning and zoning, transit oriented development, energy efficiency and green infrastructure issues are also addressed.

The book, Climate Change and Sustainable Development Law in a Nutshell, is really helpful for lawyers, planners, and students in getting an orientation to this very hot topic.  The article provides some great examples and pushes us to think about the federal/state/local/sublocal legal divides that land users have to face. 

Matt Festa

Rosser on Carbon Offsets

It was great to have the chance at ALPS to get a preview of a work-in-progress by Ezra Rosser (American).  In his talk, "The Limits of (Progressive) Property," Ezra articulated the reasons for his pessimism about property law as a vehicle for progressive social change, responding to the views expressed by several leading neo-Aristotelian property scholars in a 2009 special issue of the Cornell Law Review.  I am looking forward to seeing Ezra's work in print.

Recently Ezra has posted his forthcoming article, Offsetting and the Consumption of Social Responsibility, 89 Wash. L. Rev. ___ (2011).  Here's the abstract:

This Article examines the relationship between individual consumption and consumption-based harms by focusing on the rise in consumption offsetting. Carbon offsets are but the leading edge of a rise in consumer options for offsetting externalities associated with consumption. Moving from examples of quasi offsetting to environmental offsetting and the possibility of poverty offset institutions, I argue that offsetting provides a valuable mechanism for individuals to correct for the harms associated with consumption. This article makes two major contributions to how we understand the relationship between consumption and social responsibility. First, it identifies an emerging offsetting phenomenon in seemingly discrete market practices and gives suggestions for improving upon them. Second, it suggests that by taking seriously both consumption and externalities, progress can be made on everything from the environment to global poverty. Offsetting, while not getting at all moral or societal obligations, does root such obligations in the shared activity, and perhaps belief, of Americans: consumption.

Jim K.

Before Mountain Top Removal . . . Historic Designation Removal

NPR this evening featured a story about a dispute in West Virginia over the preservation of Blair Mountain, site of a 1921 miner uprising that claimed the lives of 100 men.  Massey Energy, owner of the mine in which 29 workers died nearby last April, is one of two companies that owns land adjacent to the site.  After being placed on the National Register of Historic Places, Blair Mountain's protection was removed by state officials thereby eliminating a barrier to the leveling of the site through mountain top removal of the coal within. 

Jim K.

Long on Sustainability v. Sprawl in the Post-Public-Lands West

Jerry Long (Idaho) explores the causes of and reasons for a community's commitment to sustainable land-use planning in his recently posted Private Lands, Conflict, and Institutional Evolution in the Post-Public-Lands West, 28 Pace Env. L. Rev. ___ (forthcoming 2011).  Here's the abstract:

As rural communities face amenity-driven population growth and globalizing culture and economic systems, the process by which those communities imagine and implement desired futures grows increasingly complex. Globalization- and technology-facilitated and amenity-driven population growth increases the value of place-bound benefit streams – including land – promoting increased levels of physical development and a changed built environment. At the same time, globalizing culture and evolving local demographics might alter local land-use ideologies, yielding a preference for resource protection and more sustainable local land-use regimes. This article engages in a theoretical and empirical exploration that seeks to answer a single question: Why, in the face of competing land-use ideologies, might a community choose to adopt a more resource-protective, or resource-sustaining, land-use regime? Ultimately, it is only upon witnessing the actual effects of previous choices on the ground – including most significant, real harm to valued social or natural amenities – that a community is able to imagine and implement a land-use regime that can protect the amenities that community values.

Jim K.

Teaching Outside the Box

We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.

I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.

I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.

I will be speaking more about this project in May at Pace's Practically Grounded Conference (and elsewhere). If any of you are engaged in (or know of) similar projects, please let me know!

- Jessica Owley