Friday, December 30, 2011

Wolf on the Supreme Court and the Environment

51hoJRabZCL._SL500_AA300_Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012).  Here's the Amazon blurb:

Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.

And for a preview, Prof. Wolf has posted the introduction on SSRN.  The abstract:

This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.

What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.

 Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.

Matt Festa

December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2011

Davidson on a Hamiltonian Vernacular as a Social Function of Property

Nestor M. Davidson (Fordham) has posted Sketches for a Hamiltonian Vernacular as a Social Function of Property, Fordham Law Review, Vol. 80 (2011).  The abstract:

This symposium article examines the intersection between Léon Duguit’s concept of the social function of property, predicated on an affirmative duty on owners to put their property to productive use for the sake of social solidarity, and a tradition in the property law of the United States that similarly reflected this kind of pro-development norm. The article associates the impulse to associate ownership with a productivity oriented social function with certain Hamiltonian themes at the founding and in the early nineteenth-century salus populi tradition, and argues that the imperative remains a background norm in the United States that contrasts with classical liberal absolutism and certain strains of civic republican property norms.

Absolutely fascinating-- an original insight that makes an important contribution to our understanding of early republic property theory and its implications for property law today.

Matt Festa

December 20, 2011 in Constitutional Law, Development, Federal Government, History, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 14, 2011

Voicu, Been, Weselcouch, & Tschirart on HAMP vs. non-HAMP Loan Modifications

Ioan Voicu (US Gov't--Office of the Comptroller of the Currency), Vicki Been (NYU), Mary Weselcouch (NYU Furman Center), and Andrew Tschirart (US Gov't--OCC) have posted Performance of HAMP versus non-HAMP Loan Modifications--Evidence from New York City.  The abstract:

Policymakers have heralded mortgage modifications as a key to addressing the ongoing foreclosure crisis. However, there is a lack of research about whether modifications are successful at helping borrowers stay current on their loans over the long run and what kinds of modifications are most successful. Our empirical strategy employs logit models in a hazard framework to explain how loan, borrower, property, servicer and neighborhood characteristics, along with differences in the types of modifications, affect the likelihood of redefault. The dataset includes both HAMP modifications and proprietary modifications. Our results demonstrate that borrowers who receive HAMP modifications have been considerably more successful in staying current than those receiving non-HAMP modifications.

Matt Festa

December 14, 2011 in Federal Government, Finance, Housing, Mortgage Crisis, Mortgages, New York, Politics, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 8, 2011

Slate on the Death of High Speed Rail

Will Oremus writes in Slate on a Requiem for a Train: High Speed Rail is Dead in America; Should we Mourn it?  From the article:

Well, you can stop imagining it now. High-speed rail isn’t happening in America. Not anytime soon. Probably not ever. The questions now are (1) what killed it, and (2) should we mourn its passing? . . .

Though Republicans’ outright rejection of high-speed rail is short-sighted, so were many of the plans themselves. Rather than focus on the few corridors that need high-speed rail lines the most, the Obama administration doled out half a billion here and half a billion there, a strategy better-suited to currying political support than to addressing real infrastructure problems. Spread across 10 corridors, each between 100 and 600 miles long, Obama’s rail system would have been, at best, a disjointed patchwork. The nation’s most gridlocked corridor, along the East Coast between Washington, D.C. and Boston, was left out of the plans entirely. Worse, much of the money was allocated to projects that weren’t high-speed rail at all.

Lots of mistakes were made in the roll-out of the HSR plan, but one of the main problems was that it was fantasized in a lot of places where it isn't really necessary, and ignored in the places where it could be great. 

Matt Festa

December 8, 2011 in Budgeting, Federal Government, Politics, Transportation | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2011

Upcoming Oral Argument in PPL Montana, Inc. v. Montana

On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana.  Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:

On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.

That's enough to get me excited (seriously).  Go read the rest of Prof. Merrill's informative analysis.  (h/t to our friends at Property Prof Blog for the link).

And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.

Should be very interesting.  Stay tuned.

Matt Festa

December 5, 2011 in Caselaw, Constitutional Law, Federal Government, History, Property Rights, Scholarship, State Government, Supreme Court, Takings, Transportation, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 23, 2011

Wiseman & Gradijan on Regulation of Shale Gas Development

Hannah Wiseman (Tulsa, Florida State)--who did some terrific guest-blogging with us last year and is part of the crew over at the Environmental Law Prof Blog--and Francis Gradijan (JD, Texas) have posted Regulation of Shale Gas Development, a white paper from the Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law.  The abstract:

Development of oil and gas from shale and tight sands formations in the United States is rapidly expanding, enabled in part by slickwater hydraulic fracturing (also called fracing, fracking, or hydrofracking). This boom in unconventional production has introduced new concerns in communities around the country, raising questions about potential impacts to surface and underground water supplies and air quality, for example. Some policymakers and administrators have recently updated laws to address these concerns, while others have attempted to fit evolving technologies and practices within existing frameworks. This white paper, written for the Energy Institute at the University of Texas, explores the environmental laws and regulations that apply to most stages of the oil or gas development process in shales and tight sands, from conducting seismic testing to constructing a well pad, drilling, completing a hydraulic fracture treatment, and storing and disposing of waste. It briefly describes federal regulations, including recently-announced EPA regulatory efforts, but focuses primarily on the states, comparing regulations in sixteen states that apply to most stages of the well development process. The paper's comparison tables show that state regulations in some areas vary substantially, and the paper attempts to connect the potential risks of oil and gas development from shales and tight sands -- which are addressed in another Energy Institute paper by Professor Ian Duncan -- to the regulation. The paper concludes that states should consider modifying certain regulations to address these risks. Some states do not require specific types of blowout prevention, for example -- offering only a narrative standard -- yet well blowouts are an important concern. Furthermore, states should consider whether federal Department of Transportation regulations addressing the movement of fracturing chemicals adequately protect against spills, and whether state casing and cementing regulations protect well integrity during the drilling and fracturing process and into the future. States also must explore better options for disposing of large quantities of new wastes. Finally, the collection of more and better data, including information from baseline and post-production water testing, is essential. With states at the regulatory helm, comparison of public law strategies to address development risks can produce fruitful cross-jurisdictional lessons.

Timely and important.

Matt Festa

November 23, 2011 in Environmental Law, Federal Government, Oil & Gas, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Friday, November 18, 2011

Rural Sustainability Report

From the Sustainable Communities folks at EPA:

New Partnership for Sustainable Communities Report:
Supporting Sustainable Rural Communities

The HUD-DOT-EPA Partnership for Sustainable Communities and the USDA has
just released Supporting Sustainable Rural Communities, a report that
discusses how the four agencies are collaborating to support rural
communities. This publication highlights how small towns and rural
places across the country are using federal resources to strengthen
their economies, provide better quality of life to residents, and build
on local assets such as traditional main streets, agricultural lands,
and natural resources.

The report includes sections on how HUD, DOT, EPA, and USDA programs
support environmentally and economically sustainable growth in rural
places; performance measures rural communities can use to target their
investments; and 12 case studies of rural communities using federal
resources to achieve their development and economic goals. It also
outlines steps the Partnership for Sustainable Communities is pursuing
to support small towns and rural places.

To read the report, please visit this website.

Jamie Baker Roskie

November 18, 2011 in Agriculture, Community Economic Development, Development, Economic Development, Federal Government, Planning, Sustainability | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2011

Halperin on Incentives for Conservation Easements

Daniel I. Halperin (Harvard) has posted Incentives for Conservation Easements: The Charitable Deduction or a Better Way, Law & Contemporary Problems, Vol. 74, p. 29, Fall 2011.  The abstract:

Therefore, to give greater assurance that the public benefit of the gift will be consistent with the claimed deduction, the donee should be required to certify that it has selected the easement consistent with its mission and it has both the resources to manage and enforce the restriction and a commitment to do so. Moreover, it is inappropriate to measure the charitable deduction by the supposed loss in value to the donor from the imposition of the easement. The focus should be on actual benefit to charity. Therefore, eligibility for a charitable deduction for a conservation easement should be contingent on certification – by a public agency or, possibly, an IRS-accredited land trust – that the public benefit from the contribution is equivalent to the claimed deduction.

In fact, the recent changes to various tax-expenditure programs – placing caps on the expenditures and requiring the participation of expert agencies – indicates that Congress is less enamored than it once was with open-ended tax expenditures administered solely by the Treasury Department. This suggests a cap on tax credits for the contribution of conservation easements. Even if the program is open-ended, Congress should mandate participation of an expert agency such as the Bureau of Land Management, which is more capable of evaluating the public value of an easement.

Matt Festa

November 14, 2011 in Conservation Easements, Environmentalism, Federal Government, Land Trust, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 7, 2011

Nolon on Land Use for Energy Conservation and Sustainable Development

John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:

Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.

In the footnotes, Prof. Nolon notes that this is part of a trilogy:

FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POLY REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].

This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.

Matt Festa

November 7, 2011 in Climate, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Green Building, Local Government, Planning, Scholarship, State Government, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, November 4, 2011

Joplin Tornado Unearths Toxic Lead from Mining

The Weather Channel and other media outlets are reporting of a new problem for tornado ravaged Joplin, Missouri - lead contamination.

As the cleanup in Joplin continues, another potentially deadly hazard has been uncovered, dangerously high levels of lead. According to an article in the Los Angeles Times, “In tests of 43 properties, 18 showed high levels of lead, prompting the city’s mayor to ask the U.S. Environmental Protection Agency and the Missouri Department of Natural Resources for help in testing for, and cleaning up, the element.”

For more than 100 years, beginning in the mid-19th century, Jasper County was at the worldwide forefront of lead and zinc mining. The area included town names like Leadville Hollow and Minersville.

According to Dan Pekarek, director of the Joplin Health Department, a waste product from lead mining called “chat” was dumped in several spots around the city of Joplin, and simply covered with soil. Those sites we likely exposed when the F-5 tornado ripped through the city.

Additionally, in an interview with the Joplin Globe, Pekarek said “Chat was pretty readily available around here, and they used it. It was used as fill for voids around footings and foundations, and to level out crawl spaces.”

As if the poor folks in Joplin haven't been through enough!  According to this news release the EPA is offering to enter a cooperative agreement with the city to test for and remediate the lead contamination.

Jamie Baker Roskie

 

November 4, 2011 in Environmentalism, Federal Government, Industrial Regulation, Local Government, Redevelopment | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 2, 2011

NYU Furman Center Releases Paper on Housing Vouchers and Crime

The NYU Furman Center for Real Estate and Urban Policy has just sent out news of its latest fascinating and important study: American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study is authored by co-director Ingrid Gould Ellen, Michael C. Lens, and Katherine O'Regan. From the announcement:

We are pleased to share with you the latest paper from the Furman Center, American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study explores the link between housing vouchers and neighborhood crime rates. More than two million renters now receive Housing Choice Vouchers, which subsidize rent in private apartments. Although voucher holders live in a large variety of neighborhoods, community opposition to vouchers can be fierce due to perceptions that voucher holders will both reduce property values and heighten crime. The widely-circulated 2008 Atlantic Monthly article “American Murder Mystery” highlighted this controversy.

Our study, which examines changes in crime and voucher use over 12 years in ten major U.S. cities, finds no evidence that an increase of voucher holders in a community leads to increases in crime. Instead, we find a different association: that voucher holders are more likely to move into areas when crime rates are already rising. The paper was featured in an article in The Atlantic Cities, and presented September 19 at an internal briefing held at the HUD headquarters in Washington, DC. You can read the full paper here and accompanying fact sheet here.

When it comes to housing and land use, everyone has an opinion, because everyone lives somewhere and has anecdotal information. It's great to have a study like this to clarify popular conceptions based on facts. The Furman Center leads the way in producing these kinds of helpful studies.

Matt Festa

November 2, 2011 in Affordable Housing, Crime, Federal Government, Housing, HUD, Local Government, New York, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

Lawrence Summers on How to Stabilize the Housing Market

Lawrence Summers (former Treasury Secretary, Harvard President, and Obama advisor) has posted a Washington Post op-ed called How to Stabilize the Housing Market. From the article:

The central irony of a financial crisis is that while it is caused by too much confidence, borrowing and lending, and spending, it can be resolved only with more confidence, borrowing and lending, and spending. This is true, above all, of housing policies. Fannie Mae and Freddie Mac, government-sponsored enterprises (GSEs) whose purpose is to mitigate cyclicality in housing and that today dominate the mortgage market, have become a textbook case of disastrous and pro-cyclical policy.

Summers notes that the housing market is key to the economy, and makes several substantive recommendations, including:

First, and perhaps most fundamentally, credit standards for those seeking to buy homes are too high and too rigorous. The characteristics of the average successful applicant in 2004 would make that applicant among the most risky today. The pattern should be the opposite, given that the odds of a further 35 percent decline in house prices are much lower than they were at past bubble valuations.

Matt Festa

October 24, 2011 in Federal Government, Finance, Financial Crisis, Housing, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Thursday, October 20, 2011

Sprankling on the Emergence of International Property Law

John G. Sprankling (Pacific McGeorge) has posted The Emergence of International Property Law, forthcoming in the North Carolina Law Review. The abstract:

Title to deep seabed minerals, ownership of cultural objects, transferable allowances to emit greenhouse gases, security interests in spacecraft, and rights of indigenous peoples in ancestral lands are all components of a new field: international property law.

Scholars have traditionally viewed property law solely as a national concern. Indeed, the conventional wisdom is that international property law does not exist. But if we ask how international law affects private property, we find a substantial body of international property law that governs the rights of individuals, businesses, and other non-state actors. Some components are well established, while others are still evolving.

This article first examines the antecedents of international property law. It then develops the thesis that this law stems from four main sources: regulation of the global commons; coordination of transboundary property rights; adoption of global policies to prevent specific harms; and protection of human rights. It concludes by analyzing the challenges that arise from the emergence of international property law.

Forty years ago, international environmental law emerged as a new field. Today we stand on the threshold of a similar era in international property law. This article argues that the time has come to recognize international property law as a discrete subject, and thereby promote its coherent evolution in future decades.

Fascinating!

Matt Festa

October 20, 2011 in Comparative Land Use, Environmental Law, Federal Government, Globalism, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 11, 2011

Ostrow on Land Law Federalism

Ashira Ostrow (Hofstra) has posted Land Law Federalism, 61 Emory L.J. ___ (forthcoming 2012). A must-read, this foundational work explores the theoretical framework for appropriate federal intervention in the state/local-dominated area of land use regulation. Here's the abstract:

In modern society, capital, information and resources pass seamlessly across increasingly porous jurisdictional boundaries; land does not. Perhaps because of its immobility, the dominant descriptive and normative account of land use law is premised upon local control. Yet, land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways and airports physically connect remote areas; networks of buildings, homes, offices and factories, create communities and provide the physical context in which most human interaction takes place.

Given the traditional commitment to localism, scholars and policymakers often reflexively dismiss the potential for an increased federal role in land use law. Yet, modern land use law already involves a significant federal dimension resulting, in part, from the enactment of federal statutes that have varying degrees of preemptive effect on local authority. Moreover, this Article maintains that federal intervention in land use law is warranted where the cumulative impact of local land use decisions interferes with national regulatory objectives (such as developing nationwide energy or telecommunications infrastructure).

Finally, this Article advances an interjurisdictional framework for federal land law that harnesses (a) the capacity of the federal government, with its distance from local politics and economic pressures, to coordinate land use on a national scale and (b) the capacity of local officials, who have detailed knowledge of the land and are politically accountable to the local community, to implement land use policies.

Jim K.

 

October 11, 2011 in Climate, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Green Building, Inclusionary Zoning, Local Government, NIMBY, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Sustainability, Transportation, Wetlands, Zoning | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 5, 2011

Orszag on Renting our way to a Housing Recovery

Peter Orszag, former OMB director for the Obama Administration, has a piece in Bloomberg where he argues that the U.S. Can Rent Its Way Toward a Housing Recovery:

No matter what the government might try to do to break the housing-economy cycle, the deleveraging process will still be painful and take some time. But that’s not an argument against action; just because a headache can still hurt some even if you take aspirin doesn’t mean you should skip the aspirin. One thing the Obama administration could do now -- probably with Republican support -- would be to attack the oversupply of housing stock by allowing a tax write-off for investors who buy empty properties and rent them out.

Very interesting. If renting is the new owning, there might be something to this idea. I'm generally in favor of reducing rather than increasing tax incentives to promote real estate purchases, but if Orszag's proposal were narrowly tailored towards purchases specifically for rental housing, it might make some sense.

Matt Festa

October 5, 2011 in Federal Government, Housing, Mortgage Crisis, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Sunday, October 2, 2011

Land Use at the Supreme Court, Part I

This month begins a term at the U.S. Supreme Court in which the Court will hear two important cases concerning land use. The cases turn on very different doctrinal issues. One concerns rights and remedies under the Administrative Procedure Act. The other involves an actual property issue, namely whether a state has title to a river bed arising out of application of the navigable waterway doctrine. In most ways, the cases could not be more different. Yet they are connected by one common theme. Both cases demonstrate the dangers—to landowners and governments alike—when a government entity is both a party interested in the outcome of a land use dispute and the authority charged with adjudicating the dispute.

The first case is Sackett v. EPA. According to their counsel, the Sacketts planned to build their dream home near (but not adjacent to) a lake in Idaho. They acquired the necessary local permits and received the assurance of the U.S. Army Corps of Engineers that no federal permits were required. They had begun preparations to build when EPA showed up, insisting that the lot was situated on wetlands (the putative wetland area is separated from the lake itself).

As commentators on both the Left and the Right have observed, the factual question whether the Sacketts’ land is part of nearby wetlands is contestable. But the Sacketts have no way of contesting EPA’s contention unless and until EPA seeks enforcement of an order against them in federal court; two lower federal courts ruled that federal law provides no mechanism for a pre-enforcement challenge. As the Sacketts’ counsel pointed out, this situation left the Sacketts with an “unenviable choice.” They could apply for a permit that they believe they are not required to obtain and pay the associated costs. Or they could expose themselves to an enforcement action and the associated fines, which could run over $30,000 per day. Either way, they would incur inordinate expense to build on a lot that they purchased for $23,000.

This Hobson’s choice for the Sacketts rendered EPA the de facto adjudicator of their rights. And had a public interest litigation group not come to their aid, the Sacketts would have been at the mercy of a federal administrative agency that served as investigator, prosecutor, judge, and jury. Because the Court has agreed to hear the Sacketts’ claim not under the Clean Water Act but under the broader Administrative Procedure Act, the implications of the Court’s ruling could reach far. Jonathan Adler has speculated, “While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund.”

The second case is PPL Montana LLC v. Montana. The certified question can excite only a Property professor.

Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present day recreational use, with the question “very liberally construed” in the State’s favor?

According to the pleadings, the case arose when the State of Montana decided to claim title in riverbeds that had long been used by a private landowner, namely a power company using the river to generate hydroelectricity. Montana became a state in 1889. Two years later, in 1891, a predecessor-in-title to the power company built a dam near Fort Benton, Montana on the Missouri River, apparently believing that this stretch of the river was not navigable, and that the State of Montana therefore had no title in it. More dams were built on the Missouri and Madison Rivers, and the State, no doubt benefiting from this land use, did not object. Indeed, the State participated in the licensing proceedings for some of the dams.

Then, in 2004, the State of Montana, piggybacking on a lawsuit filed by parents of Montana school children, claimed that it had owned title to the riverbeds all along because the contested stretches of river are navigable. The Montana Supreme Court ruled for the State and upheld a judgment of $41 million in back rent. 

In this case, the government actor advocating on behalf of the state—the Montana Attorney General—is distinct from the state courts that adjudicated the claim. But the central issue in the case turns on a disputed, mixed question of fact and law. And about this question the Montana state courts showed strikingly little curiosity. Despite 500 pages of expert testimony and exhibits disputing the State’s assertion of navigability, the Montana Supreme Court affirmed the trial court’s entry of summary judgment for the State. The Montana courts appear to have simply accepted the Montana Attorney General’s proposed findings.

It is now increasingly common for states and federal agencies to advocate for particular outcomes of private land use proposals. I intend to explore some of the implications of this trend at length in later posts. But in short, whatever its benefits, this advocacy entails significant costs. And these costs are not borne only by landowners. I will argue that the governmental authorities themselves pay a price, because they risk damaging their reputations as impartial ministers of law.

Adam MacLeod

Update: David Breemer of the Pacific Legal Foundation (PLF) comments below. As I should have noted, PLF is the public interest firm representing the Sacketts.

October 2, 2011 in Caselaw, Federal Government, Judicial Review, State Government, Supreme Court | Permalink | Comments (2) | TrackBack (0)

Wednesday, September 21, 2011

Hoffman on Right-of-Way Claims under Revised Statute 2477

Hillary M. Hoffman (Vermont) has posted Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane County Leaves Everyone Confused About Navigating a Right-of-Way Claim Under Revised Statute 2477. The abstract:

The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that states and counties assert rights under R.S. 2477, regardless of whether they can be proven. This Article explores the history of R.S. 2477, its repeal by the Federal Land Policy and Management Act, and the Tenth Circuit’s historical treatment of R.S. 2477 claims. It also discusses why the Tenth Circuit’s holding in the Kane County case misconstrues the nature of an R.S. 2477 dispute, overlooks long-recognized presumptions about federal ownership of federal land, and ignores the myriad of legal issues involved in an R.S. 2477 dispute. Lastly, it makes specific suggestions about how the Tenth Circuit should address litigation surrounding the growing number of R.S. 2477 battles in years to come, to enable litigants and lower courts to more easily navigate this complex area of law.

An important issue, and on a tangent, the title reminds me how I keep trying in Property I to illustrate the right to exclude with clips from the Five Man Electrical Band, but kids today don't seem to dig it.

Matt Festa

September 21, 2011 in Federal Government, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 11, 2011

9/11 and land use at Ground Zero

Today America commemorates 9/11 on its tenth anniversary.

While the tragedy and heroics of that day appropriately take precedence, 9/11 has created long-running and controversial land use issues since 2001. From the logistics of managing the rescue operations and the excavation, to last year's "ground zero mosque" kerfuffle, issues from the local to the international have played out in discussions over land use at the WTC site in lower Manhattan.

Two of the most controversial land use questions, especially as the years passed, have been (1) how should 9/11 be remembered at the site, and (2) what and how to build/rebuild to replace the twin towers.

On the first question, public memory and historic presentation, you may have seen the news that the 9/11 Memorial opens with a dedication ceremony today. The project seems to be a classic American example of public-private cooperation:

The National September 11 Memorial & Museum at the World Trade Center Foundation, Inc. began formal operations in the spring of 2005 and worked with the Lower Manhattan Development Corporation on the design and construction management plan. In the summer of 2006, the organization assumed responsibility for overseeing the design and working with The Port Authority of New York and New Jersey (PANYNJ), the construction manager on the project. . . . In the beginning of October 2006, the Honorable Michael R. Bloomberg, Mayor of the City of New York, became Chair of the Foundation’s Board of Directors. Following the election of the Mayor as Chairman, the Foundation named Joseph C. Daniels as President.

At the website, there are links to a lot of of great photos and interactive views of the site and the Memorial.

The second enduring issue--whether and what to rebuild on the site--has generated a lot of criticism as a decade has passed without any replacement for the towers. This issue has been a perfect storm of land use issues: real estate, economics, regulation, federalism, urbanism, architecture, planning, transportation, culture, history, and of course, politics, politics, politics. For what it's worth, my impression has been that on the one hand, it's too simplistic to just say we should have built a ginormous tower immediately to stick it to the terrorists--yes, NY got the Empire State Building up in about 15 months during the Great Depression, but that's not realistic in lower Manhattan today. On the other hand, I think that the decade-long wait for putting some of the world's most valuable real estate to use says something important about the effect of the burdens that we have placed on property in the modern regulatory environment. Many of the procedural and political issues and delays might have been for justifiable ends, but really, a decade?

Things are finally moving along, though. From the Wall Street Journal's Developments real estate blog comes the helpful post Six Questions on Rebuilding the World Trade Center. The signature tower is in progress:

What’s the status of the office buildings? Some are further along than others. One World Trade Center, the site’s signature office building, is going up about a floor per week and is currently around 80 stories out of a total 104, and it’s already the tallest structure in Lower Manhattan.

On the delays:

What’s taken so long? Conflict has been a big theme of the rebuilding. There have been battles with insurers, wars between agencies, and repeated fights between the public sector and private developer Larry Silverstein over how to rebuild and fund his office towers. Those fights have often led to stalemates. Add onto that the fact that the site is extraordinarily complex — it’s often likened to a Rubik’s cube, but it’s sometimes more like a messy ball of rubber bands. The mechanics of the site are all intertwined — exits and emergency systems for the PATH station are in the neighboring towers, and deliveries to One World Trade Center need to run underneath 2, 3, and 4 World Trade Center. This means everything underground had to be built more or less at once, with precision. There is a laundry list of public agencies involved, and historically they hadn’t been great at communicating with each other.

The WSJ also has a great interactive graphic Exploring Ground Zero, Ten Years Later.

9/11 deserves our remembrance today, our continuing thanks for those serving in harm's way, and--secondarily--our commitment to good land use at this very important place for commerce, human activity, and public memory.

Matt Festa

September 11, 2011 in Architecture, Development, Downtown, Federal Government, History, Local Government, New York, Planning, Politics, Property, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 7, 2011

Glaeser on Rethinking the Federal Bias Toward Homeownership

Harvard economist Edward Glaeser--author of much fascinating work on land use and urban development, including his latest book, Triumph of the City-- has posted his latest article, Rethinking the Federal Bias Toward Homeownership, forthcoming in HUD's Cityscape: A Journal of Policy Development and Research, Vol. 13, No. 2 (2011). The abstract:

The most fundamental fact about rental housing in the United States is that rental units are overwhelmingly in multifamily structures. This fact surely reflects the agency problems associated with renting single-family dwellings, and it should influence all discussions of rental housing policy. Policies that encourage homeowning are implicitly encouraging people to move away from higher density living; policies that discourage renting are implicitly discouraging multifamily buildings. Two major distortions shape the rental housing market, both of which are created by the public sector. Federal pro-homeownership policies, such as the home mortgage interest deduction, weaken the rental market and the cities where rental markets thrive. Local policies that discourage tall buildings likewise ensure that Americans have fewer rental options. The economic vitality of cities and the environmental consequences of large suburban homes with long commutes both support arguments for reducing these distortions.

A very important argument; I'm looking forward to reading the whole thing.

Matt Festa

September 7, 2011 in Affordable Housing, Density, Federal Government, Housing, HUD, Landlord-Tenant, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, September 1, 2011

Transportation PodCast from the Commonwealth Club of California

Driving today I happened upon a radio broadcast of a talk given by Polly Trottenberg, Assistant Secretary for Transportation Policy at US DOT, to the Commonwealth Club of California. Here's a description of her talk from the Commonwealth's web page:

If you have ever been stuck in traffic on the Bay Bridge, late to meetings, or have had a ruined weekend because you couldn’t make it to a destination in time, you know that California suffers from a major transportation infrastructure problem. From pot holes jarring people’s necks and backs, to bridges collapsing nationwide, thousands of commuters are being affected every day by America’s inadequate and faltering transportation infrastructure system. U.S. Department of Transportation Undersecretary for Policy Polly Trottenberg explores solutions to this serious crisis. Trottenberg works toward implementing the president’s priorities for transportation including safety and creating jobs. The DOT employs more than 55,000 employees with a $70 billion budget that oversees air, maritime and surface transportation missions. For 12 years she worked extensively on transportation, public works, energy and environmental issues in the U.S. Senate, for Senators Barbara Boxer, Charles Schumer and Daniel Patrick Moynahan.

Her talk doesn't focus only on California - I tuned in during the question and answer session, when she took a broad range of questions on high speed rail, TIGER grants, freight movement, transportation safety, and other topics. You can download the podcast here.

Jamie Baker Roskie

September 1, 2011 in California, Federal Government, Politics, Transportation | Permalink | Comments (1) | TrackBack (0)