Wednesday, September 7, 2011
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.
Thursday, September 1, 2011
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
Wednesday, August 31, 2011
From the Smart Growth America website, news about an ironically timely meeting:
Can smart growth help communities avoid the catastrophic impacts of flooding? The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) brought together designers, land use planners, engineers and policy wonks at NOAA’s Silver Spring headquarters last week to examine this question, and to find commonalities and tensions between hazard mitigation techniques and smart growth principles.
Read the rest of the article here.
Monday, August 29, 2011
Elan Stavros Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties, forthcoming in the Journal of Affordable Housing, Vol. 20, No. 2, Winter 2011. The abstract:
The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.
This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.
To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.
Monday, August 22, 2011
Joshua P. Fershee (North Dakota) has posted Reliably Unreliable: The Problems with Piecemeal Federal Transmission and Grid Reliability Policies, Center for Energy and Environmental Law, University of Connecticut School of Law Policy Paper, July 2011. The abstract:
In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities as the traditional sense of local control over siting and delivery of electricity has been eroded.
A large portion of the current U.S. transmission system is between thirty and fifty years old. As the transmission grid ages, reliability concerns increase; an old grid is simply more likely to fail. Still, new transmission infrastructure is expensive, laborintensive, and complex. Further, there are significant concerns about whether upgraded and expanded transmission lines are the best way to improve safety and reliability.Certainly, with the advent of microgrids and other technologies, transmission lines are not the sole option. A multi-faceted approach that considers local and regional needs, as well as those of the nation as a whole, is necessary.
There are several areas in need of consideration. Recent federal legislation designed to address transmission siting has been well intended, but limited in scope. Further, recent court decisions have all but eliminated the potential effectiveness of the federal siting authority. In addition, cost allocation issues for new energy facilities have emerged as paramount in the relatively new era of competitive markets for power generation, and these issues have been exacerbated by recent energy policy developments. Finally, policies designed to address public safety and environmental concerns have impeded (or run the risk of impeding) broader policy goals, because the policies are often limited in scope and not part of a comprehensive package then ensures necessary synergies to improve grid reliability.
There is no shortage of effort at the state, regional, and federal levels to improve electricity grid reliability and safety. Unfortunately, in many cases, the efforts have been competitive with other energy-related policies (such as climate change initiatives and renewable energy mandates), and jurisdictional conflicts have obstructed, rather than facilitated, many such efforts. It is time for Congress to provide clear authority to someone to make and coordinate changes. A failure to act to preserve and improve the safety and reliability of our electric system would be a costly and avoidable failure. And that is something no one can afford.
Prof. Fershee had a very interesting presentation at SEALS last month too; check out this timely paper.
Wednesday, August 17, 2011
An interesting article on the New Urbanist Network about how the Postal Service plans to close 3,600 rural post offices.
For many communities, the closings may reduce activity in town or village centers. Even with diminishing mail volume, there are still many people who cross paths at the post office. The drawing power of post offices was recognized early by new urbanist developers such as Robert Davis in Seaside, Florida, and Buff Chace and Douglas Storrs in Mashpee, Massachusetts.
Jamie Baker Roskie
Monday, August 15, 2011
Sean Nolon (Vermont) has posted Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines, Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011. The abstract:
Electricity generated from wind turbines must be a central part of any renewable energy regime. The build out of any wind energy infrastructure policy relies on facility siting decisions at the local and state level. Local opposition in some areas has created an implementation impasse that is best addressed from a systematic perspective, recognizing that citizens play a central role in making significant land use decisions. Through this article, the author explores the nature of citizen opposition to locally unwanted land uses like wind turbines and proposes a suite of collaborative mechanisms to address concerns through effective citizen engagement in policy development and during local siting decisions. The author proposes a federal structure that provides incentives to encourage collaborative governance at the state and local level. The framework leaves state siting structures in place and provides resources to improve decision-making processes and the outcomes. By involving citizens effectively at the policy and siting level, the hope is that wind turbine siting decisions will be more effective. Instead of encouraging divisions among the levels of government, this model builds on their strengths and supports their weaknesses.
August 15, 2011 in Clean Energy, Environmental Law, Federal Government, Local Government, Planning, Scholarship, State Government, Sustainability, Wind Energy | Permalink | Comments (1) | TrackBack (0)
Thursday, August 11, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.
August 11, 2011 in Constitutional Law, Economic Development, Eminent Domain, Federal Government, Judicial Review, Local Government, Property Rights, Property Theory, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 3, 2011
An interesting article in Wired magazine on a new report from the Leadership Conference on Civil and Human Rights on transportation equity:
According to the report, the average cost of owning a car is just shy of $9,500. That may not sound like much until you realize the federal poverty level is $22,350 for a family of four. One-third of low-income African-American households do not have access to an automobile. That figure is 25 percent among low-income Latino families and 12.1 percent for whites. Racial minorities are four times more likely than whites to use public transit to get to work.
Yet the federal government allocates 80 percent of its transportation funding to highways.
“This is the civil rights dilemma: Our laws purport to level the playing field, but our transportation choices have effectively barred millions of people from accessing it,” the report states. “Traditional nondiscrimination protections cannot protect people for whom opportunities are literally out of reach.”
Read the full report here.
Jamie Baker Roskie
Friday, July 22, 2011
The National Building Museum is hosting what looks like a particularly interesting program called The Public Memory of 9/11. It will explore two of my favorite subjects: public land use; and collective memory of the past.
The upcoming tenth anniversary of the 9/11 attacks offers an opportunity to consider how the sites in New York, Pennsylvania and Washington are memorializing and interpreting this event. Leading representatives—Alice Greenwald, Director, National September 11 Memorial & Museum; Jeff Reinbold, Site Manager, Flight 93 National Memorial and; Jim Laychak, President, Pentagon Memorial Fund— present the designs of the memorials and discuss the challenges in commemorating recent history. Brent Glass, director of the National Museum of American History, moderates the program. 1.5 LU HSW (AIA)
FREE. Pre-Registration required. Walk in registration based on availability.
Date: Tuesday, July 26, 2011
Time: 6:30 PM - 8:00 PM. If you'd like to attend this event you can RSVP online.
Friday, July 15, 2011
From The White House blog:
President Obama knows that the hard work of strengthening American communities and revitalizing the American economy happens at the local level – in neighborhood schools and community colleges, at town meetings and neighborhood associations, through new start-ups and small businesses. That’s why the White House is excited today to announce the launch of the Strong Cities, Strong Communities Initiative.
Strong Cities, Strong Communities is a new interagency pilot initiative that aims to strengthen neighborhoods, towns, cities and regions around the country by strengthening the capacity of local governments to develop and execute their economic vision and strategies. Strong Cities, Strong Communities bolsters local governments by providing necessary technical assistance and access to federal agency expertise, and creating new public and private sector partnerships. By leveraging existing assets, providing new resources, and fostering new connections at the local and national level, Strong Cities, Strong Communities will support towns and cities as they develop comprehensive plans for their communities and invest in economic growth and job creation.
If you visit the blogsite, you can watch the "launch video" and read more about the community intiatives.
Jamie Baker Roskie
Wednesday, July 13, 2011
According to the folks at Smart Growth America, the House Appropriations Committee has passed legislation that would eliminate the EPA's Office of Smart Growth. You can visit the Committee's website to learn more about the bill. SGA has a website that allows you to e-mail your congressional representative, if you're so inclined. Presumably this is part of the campaign to defund the administration's Sustainable Communities Initiative.
I've blogged several announcements from the OSG, which co-hosts the annual New Partners for Smart Growth conference, and gives smart growth implementation assistance and grants and awards to local and state governments each year.
Jamie Baker Roskie
Tuesday, June 21, 2011
I'm excited to post this guest blog from Professor Timothy Mulvaney, a land use prof from Texas Wesleyan School of Law in Fort Worth. He's written extensively about judicial takings and exactions, and proivdes this timely and interesting post about yesterday's U.S. Supreme Court cert grant. This case has been somewhat under the radar, but could end up being very important. Thanks to Tim for the early and interesting analysis-- Matt Festa
Thank you very much for the opportunity to guest blog during this important week at the U.S. Supreme Court.
It is understandable that today’s headlines regarding the Supreme Court are devoted to several landmark decisions released yesterday, including rulings rejecting class certification in Wal-Mart v. Dukes and holding that the Clean Air Act displaces federal common law nuisance claims when it comes to greenhouse gas emissions in AEP v. Connecticut. But in addition to these major holdings, the Supreme Court also took the noteworthy step of granting certiorari in PPL Montana, LLC v. State of Montana. This case could have important implications for property, land use, natural resources, and environmental law.
In 2010, the Montana Supreme Court held that the State of Montana owns the beds of the Missouri, Madison, and Clarke Fork Rivers as an incident of state sovereignty. This ruling confirmed that PPL Montana is required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power. PPL Montana claims that the riverbeds are private property, such that no rent to (or approval from) the State is necessary to conduct their operations. To determine whether these rivers are held in trust by the State or rather in private ownership turns on whether the rivers are considered “navigable.” The U.S. Supreme Court has defined waterways as “navigable” in the context of such a title dispute if the rivers were “used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel [were] or may be conducted” when the relevant State was admitted to the Union.
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.
Yet there may be another issue lurking under the surface. In seeking the Supreme Court’s review, PPL Montana and several of its amici sought to frame the Montana Supreme Court’s decision as a “judicial taking.” You will recall that in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court left the existence and scope of a judicial takings doctrine in a state of flux. To cull from a law review article I authored on Stop the Beach this past winter:
A four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an “established” property right “no longer exists” may amount to an unconstitutional taking. … Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed. … Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” [Justice Stevens recused himself.]
In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, “[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.” In support of PPL Montana’s petition, the Cato Institute joined the Montana Farm Bureau Federation in contending that the Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause, calling the Court’s ruling a “thinly-disguised judicial taking.” For its part, the State of Montana maintained that nothing in the Montana Supreme Court’s decision contravened established property law, for PPL Montana’s “deeds and pleadings show it has no riverbed property to take” and the State “has claimed and received compensation for uses of navigable riverbeds for decades.”
It remains to be seen whether the U.S. Supreme Court will address the judicial takings question when it takes up PPL Montana, LLC v. State of Montana in the coming year. The certiorari stage documents are available here. It is anticipated that the parties and their amici will brief the case this summer, with oral argument likely to occur in the winter. Stay tuned to the Land Use Prof Blog for updated information.
It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out. Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term.
Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."
Also, Wal-Mart Stores, Inc. v. Dukes et al. This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field. The Wal-Mart Wars involve a distillation of many of the major land use issues in current events. I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher. Thanks to Troy Covington for the pointer.
In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case. We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!).
Sunday, May 29, 2011
David J. Reiss (Brooklyn) has posted Foundations of Federal Housing Policy, a chapter in the book COMMUNITY, HOME, AND IDENTITY, Michael Diamond, Terry Turnipseed, eds., 2011. The abstract:
Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."
Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.
Looks like a fascinating contribution on a very important topic.
Wednesday, May 25, 2011
Under the title "Million-Dollar Wasteland", the Washington Post has published a series of investigative articles attacking the effectiveness of HOME, HUD's principal source of targeted funding for community-based development of affordable housing. The reporters' data analysis lead them to conclude that more than 700 affordable housing projects granted more than $400 million in HUD funds are "delayed or abandoned." In a posted response, HUD says its own review shows that most of these supposedly failed projects are "actually completed and occupied." Unsurprisingly in this fiscal climate, congressional leaders have called for an investigation into the HOME program (Post follow-up story). No doubt more to follow.
Wednesday, May 18, 2011
Henry Rose (Loyola-Chicago) has posted The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases, 41 N. M. L. Rev. ___ (forthcoming 2011). Here's the abstract:
The purpose of this article is to explore the rights of tenants who reside in buildings undergoing foreclosure to receive notice and an opportunity to be heard when foreclosures threaten to terminate their tenancies. The federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) will significantly reduce the incidence of residential tenancies being terminated as a result of foreclosure. However, PTFA offers weak procedural protections if the mortgagee or the person who acquires ownership pursuant to a foreclosure seeks to terminate the tenancies of residents in the foreclosed building. In those states that require judicial foreclosures, the Due Process Clause of the Fourteenth Amendment to the United States Constitution should afford tenants faced with termination of their tenancies due to foreclosure with notice and an opportunity to be heard before their tenancies are terminated. In states that allow non-judicial foreclosures, Due Process protections are not likely to be available to tenants due to a lack of state action in the foreclosure process. PTFA should be amended to afford all tenants, including those who reside in non-judicial foreclosure states, with notice and an opportunity to be heard before their tenancies are terminated pursuant to a foreclosure.
May 18, 2011 in Affordable Housing, Federal Government, Financial Crisis, Housing, Landlord-Tenant, Mortgage Crisis, Mortgages, Property, Property Rights, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)
Sunday, May 15, 2011
Courtesy of Mark Edwards at Property Prof, a link to what looks like an important and troubling report, Million-Dollar Wasteland: HUD's Mismanagement of America's Affordable Housing. Here's Edwards' initial reaction:
Given that Congress is looking for areas to budget-cut, I suspect this series could be a game-changer for HUD. That's unfortunate, because the need for affordable housing in the United States is enormous. No doubt there is waste at HUD. But I suspect that the committed and well-intentioned people at HUD are trapped in a downward spiral: they aren't given enough resources to adequately oversee the projects they fund; the projects they fund are wasteful; so their resources are cut.
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 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!