Tuesday, May 24, 2011
The John Marshall Law School will be hosting a conference on its Chicago campus on September 20, 2011, to commemorate the 40th anniversary of publication of The Quiet Revolution in Land Use Control. The book’s two original authors, Fred Bosselman and David Callies, will speak at the event, along with Daniel Mandelker, Patricia Salkin, and other prominent scholars. Here are some excerpts from a news release posted at the law school’s website:
The Kratovil Quiet Revolution Conference will begin with an analysis of the impact of The Quiet Revolution in Land Use Control, a book that discussed the shift from local to regional planning, has had on our nation and land use policy. National speakers representing the states involved in The Quiet Revolution in Land Use Control will analyze how The Quiet Revolution unfolded in these jurisdictions. The afternoon will then analyze the future of land use policy and how this national issue will play out around the country…
…This national debate started with two scholars in Chicago, so it is a fitting site for a reexamination of this 40-year-old national debate and the legislation it produced. In 1971, the president's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states around the nation which returned the control of land use to a state or regional level, largely at the expense of local zoning. This was the "ancient regime" being overthrown. This constituted the "quiet revolution." Immensely influential (several thousand copies were purchased and distributed) in stimulating creative thinking by planners, lawyers, and public officials to solve difficult land use planning issues, the book also quickly became a fixture of courses in many university planning and law programs, as well as a handbook and sourcebook for state and local officials. Dozens of articles have been written about it, some recently. It remains a reading source in many courses taught today.
Monday, May 23, 2011
Catherine LaCroix (Case Western) has posted Urban Green Uses: The New Renewal, published in Planning and Environmental Law, Vol. 65, No. 5, p. 3, May 2011. The abstract:
As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability of land banks for cleanup of contaminated properties? Are cities required to provide municipal services to unpopulated areas within their boundaries? In the unlikely event that a city uses eminent domain to relocate owners of sparsely-populated areas, what is “just compensation” for this action? What issues might arise with zoning land for less intensive uses such as urban farms? Some of the answers are emerging. For example, state authorizing legislation has been enacted to establish the type of active land bank successfully implemented in St. Louis, Cleveland, and other cities, and it appears that cities need not provide infrastructure and services throughout their land area, though they are best advised retain any rights of way or easements that may be needed in the event of future development. Other questions – both legal and practical - have yet to be fully answered, as rust belt cities lead the way in what might tentatively be called "The New Renewal" – a form of sustainable development that dovetails well with the policies of cities that seek to combat and adapt to climate change.
May 23, 2011 in Agriculture, Climate, Density, Eminent Domain, Environmentalism, Green Building, Local Government, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Thursday, May 12, 2011
Royal C. Gardner (Stetson) has posted Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics. It is the introduction to his new book of the same name from Island Press (2011). The abstract:
This paper is the table of contents and introduction to Royal C. Gardner, Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics (Island Press 2011). The book is an accessible guide to the complex set of laws governing America's wetlands. After explaining the importance of these critical natural areas, the book examines the evolution of federal law, principally the Clean Water Act, designed to protect them.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
the geographic scope and activities covered by the Clean Water Act; the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency; the goal of no net loss of wetlands; the role of entrepreneurial wetland mitigation banking; the tension between wetland mitigation bankers and in-lieu fee mitigation programs; enforcement issues; and wetland regulation and private property rights.
The book concludes with policy recommendations to make wetlands law more effective.
Looks like a new key resource for anyone intersted in wetlands law.
May 12, 2011 in Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Property Rights, Scholarship, Supreme Court, Takings, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 10, 2011
Keith H. Hirokawa (Albany) has posted another piece: Sustaining Ecosystem Services Through Local Environmental Law, forthcoming in the Pace Environmental Law Review, Vol. 28, No. 3 (2011). The abstract:
In the early decades of modern environmental law, local governments retained their prerogative over community design and other essentially local matters, but were largely excluded from the debate on national environmental policy. More recently, environmental lawyers have reignited the question of how and where the local government regulation of land use impacts intersects with environmental quality. It is interesting to note that as the national dialogue has turned to the important role of local governments in achieving our environmental quality goals, there has been a corresponding emergence of an "ecosystem services" approach to understanding nature. It is more interesting to note how many of the stories of ecosystem services – successes, explanations, and illustrations – take place in local governments and in community decision making. Perhaps by coincidence, but likely due to design, local environmental law and ecosystem services have evolved in a complementary manner.
This article looks at the recent trends in recognizing and regulating ecosystem services at the local level. Local governments are adopting regulations aimed at capturing the benefits of functioning ecosystems by transcending aesthetic values of local nature and focusing on ecological processes and the services they provide. Section II introduces the topic by arguing that because of the manner in which local governments regulate environmental impacts, the value embedded in ecosystem services is commensurable with local regulation. Section III illustrates the relationship between local governance and ecosystem services, as well as the opportunities presented by this relationship, by examining some of the ways that local environmental law has embraced the advantages of an ecosystem services perspective. This article concludes that local governments are leaders in the implementation of ecosystems services-based regulation, that communities are the direct beneficiaries of such action, and that this is exactly as it should be.
Tuesday, May 3, 2011
While waiting for the first stack of ungraded final exams to hit my desk this week, I’ve been following developments in a dispute between Illinois and Missouri over flooding along the Mississippi River. Rising floodwaters in the region presented federal government officials with a difficult choice. If they took no action, severe flooding would likely destroy the small town of Cairo, Illinois. If they intentionally broke a downstream levee, they would save Cairo from ruin but would allow floodwaters to devastate 90 homes and 200 square miles of farmland in Missouri. I plan on discussing this simple dilemma to introduce the concept of cost-benefit analysis to my Land Use students this Fall.
The conflict has centered on whether to activate the Birds Point-New Madrid Floodway, a 130,000-acre area in southeast Missouri. In the 1920s and 1930s, the federal government paid private landowners an average of $17 per acre to acquire “flowage rights” throughout the floodway. The acquisition of these rights, authorized under the 1928 Flood Control Act, entitles the federal government to purposely divert water from the main channel of the Mississippi River onto the burdened properties when necessary to prevent flooding elsewhere.
For the past week, Illinois and Missouri have been battling in court over whether the federal government should fill the floodway with water for the first time since 1937 to prevent flooding in Cairo. Missouri’s attorney general filed a complaint in U.S. District Court last week seeking a court order to prevent intentional flooding of the floodway, arguing that it was unjustified and would cause water pollution in violation of the Clean Water Act. The District Court denied Missouri’s request, and Missouri’s appeals to the Eight Circuit Court of Appeals and U.S. Supreme Court also failed. With the legal obstacles cleared, the U.S. Army Corps of Engineers used explosives to blast a two-mile-wide hole in a river levee last night and began floodwaters pouring into the floodway.
According to Bloomberg, the U.S. Government believes that flooding the floodway will cause about $314 million in damage and contamination but will avoid more than $1.7 billion in damage in Cairo and other communities along the river. Based on those figures, landowners within the floodway were the least-cost avoiders in this context and sacrificing their land uses to protect more valuable uses upstream probably maximizes social welfare. Not surprisingly, many of the private individuals residing or working within the 200-square-mile floodway were more focused on their own losses. A local newspaper article suggests that some landowners intend to file a takings claim against the federal government for breaking the levee.
Ironically, the concept of externalities or “spillover” effects takes on a double meaning in this case. The question of whether or not to flood the floodway required government decision makers to consider both the literal and figurative spillover effects of each option!
Thursday, April 28, 2011
It's Severance-palooza today on the Land Use Prof Blog, with Hannah Wiseman's great summary of the oral arguments at the recent rehearing of the Open Beaches Act case in the Texas Supreme Court, and the contribution in my previous post from Timothy Mulvaney. Scroll down to the next two posts for that background and analysis.
But wait, there's more! Prof. Mulvaney, who has done a lot of research on takings, including a piece on last year's Stop the Beach Renourishment, has been following Severance v. Patterson for a long time. Last month he hosted a lively panel discussion on the case at Texas Wesleyan School of Law (ably sponsored by their Federalist Society and Environmental Law Society). The participants were David Breemer, the attorney for plaintiff Carol Severance; Ellis Pickett, former chair of the Texas Upper Coast Chapter of the Surfrider Foundation; and yours truly.
Prof. Mulvaney spoke first and gave a helpful introduction to the case and the background of the legal issues. Mr. Breemer, a principal with the Pacific Legal Foundation, gave his client's view of the case and argued vigorously that the state's interpretation of beach-access easement law is an unconstitutional interference with his client's property rights.
I spoke a little bit about the Texas Supreme Court's initial opinion from November 2010, and also about the issue I focused on in my amicus curiae brief, which was (my view) that an easement must be proven up for each property through common law doctrines of dedication, prescription, or custom before we can even get to the question of whether it rolls.
Mr. Pickett, whose Surfrider Foundation also filed an amicus brief (with which a former student of mine assisted in drafting), spoke passionately about the environmental costs of restricting the public interest in the beach. He had lots of compelling pictures and even passed around the room a giant piece of twisted metal to make his point. This was followed by a great Q&A session with the well-informed crowd.
What made it even more interesting is that when Prof. Mulvaney organized the panel, it was conceived as an after-action discussion of the November opinion. It wasn't until just a couple of weeks beforehand that we all learned that the court had taken the unusual step of granting the rehearing. By the way, you can read all of the briefs, including the amici, at the link from this post.
It was a great event, and the other three participants have offered to give me a surfing lesson. The participants have all agreed to contribute to an upcoming issue of the Texas Wesleyan Law Review.
Here's the video! [requires Real Player]. This video, plus Part 2, are also available at the Texas Weslayan web article on the event.
Tuesday, April 26, 2011
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!
Monday, April 25, 2011
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.
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.
Sunday, April 24, 2011
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.
Saturday, April 23, 2011
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.
Wednesday, April 20, 2011
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
Monday, April 11, 2011
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.
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.
Friday, March 25, 2011
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.
Wednesday, March 23, 2011
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)
Monday, March 21, 2011
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!
Thursday, March 17, 2011
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.
Tuesday, March 15, 2011
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.
Monday, March 14, 2011
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).