November 04, 2011
Joplin Tornado Unearths Toxic Lead from Mining
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 03, 2011
NPR on Zoning out Hydrofracking in Upstate NY
From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits. The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).
I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class. I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes. Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely. Enjoy.
March 05, 2011
Before Mountain Top Removal . . . Historic Designation Removal
NPR this evening featured a story about a dispute in West Virginia over the preservation of Blair Mountain, site of a 1921 miner uprising that claimed the lives of 100 men. Massey Energy, owner of the mine in which 29 workers died nearby last April, is one of two companies that owns land adjacent to the site. After being placed on the National Register of Historic Places, Blair Mountain's protection was removed by state officials thereby eliminating a barrier to the leveling of the site through mountain top removal of the coal within.
March 5, 2011 in Clean Energy, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Historic Preservation, History, Industrial Regulation, Oil & Gas, State Government | Permalink | Comments (0) | TrackBack
February 24, 2011
Meyer on Community Participation in Environmental Cleanup Decisions
The last installment in the Cityscape trilogy is Peter Meyer's Brownfields, Risk-Based Corrective Action, and Local Communities. Here's the abstract:
This article addresses the problems facing communities that suffer both environmental risks from past contamination and depressed economic activity. In such settings, redevelopment of contaminated sites and the associated economic development may require compromised standards for environmental mitigation. This potential conflict is often resolved through risk-based corrective action on sites cleaned only for their prospective use. But partial cleanups can be shown to face inevitable failure at some future date. Thus, in such an approach, communities face risks that they need to understand and should be capable of accepting or rejecting. The article considers these risks and assesses four alternative land use control strategies for assuring community participation in making decisions about both the cleanup process today and the response to risks of failure in the future.
February 24, 2011 in Community Design, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Industrial Regulation, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack
February 23, 2011
Guignet and Alberini on Voluntary Cleanup and Brownfield Redevelopment
A recent issue of HUD's Cityscape journal contains several articles on land use and remediation of environmental contamination. The first featured here is Voluntary Cleanup Programs and Redevelopment Potential: Lessons from Baltimore, Maryland by Dennis Guignet and Anna Alberini (both U. Md.--Ag. & Resource Econ.). Here's the abstract:
In the United States, policy has increasingly shifted toward economic incentives and liability attenuation for promoting cleanup and redevelopment of contaminated sites, but little is known about the effectiveness of such policies. These policies include, among others, state Voluntary Cleanup Programs (VCPs), which were established in the United States in the 1990s and, to date, have been implemented in nearly every state. This article focuses on 116 Baltimore properties that were enrolled and participated in the Maryland VCP from its inception in 1997 to the end of 2006 and examines what type of properties tend to participate in these programs, how these properties compare with other eligible but nonparticipating sites, and what the redevelopment potential of VCP properties and implications is toward open-space conversion.
We find that most applicants (66 percent) actually requested a No Further Requirements Determination directly, rather than proposing cleanup. Nevertheless, the VCP led to the identification and environmental assessment of 1,175 acres of contaminated land in the city of Baltimore alone. In Baltimore, VCP properties tend to be industrial, located in areas zoned as industrial, and away from residential neighborhoods. In more recent years, larger properties have increasingly enrolled in the program. Most participating sites are reused as industrial or commercial properties. In contrast with Alberini (2007), these findings suggest that, in Baltimore, pressure for residential development has not driven VCP participation to date. Based on differences in zoning requirements, the VCP may reduce demand for potentially contaminating activities on pristine land by as much as 1,238 to 6,444 acres, in Baltimore alone.
February 23, 2011 in Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Industrial Regulation, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack
January 18, 2011
Connecticut vs. American Power
Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power. Following is a synopsis from the Climate Change and Clean Technology Blog.
On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).
This is a case to watch out for during this Supreme Court term.
Read more here.
Jamie Baker Roskie
January 18, 2011 in Climate, Environmentalism, Federal Government, Industrial Regulation, Land Trust, Local Government, New York, Nuisance, Property Rights, State Government, Supreme Court | Permalink | Comments (0) | TrackBack
November 09, 2010
Summary of Errors Leading to Deepwater Blowout
We've done a fair amount of posting about the Deepwater Horizon disaster. (See for example here and here.) Marc Poirer is planning to teach a week-long course at Seton Hall in January on the blowout, and he gave the Environmental Law professors listserv a heads' up to this interesting article. It summarizes all the errors that lead to a collosal disaster.
More than 100 hours of testimony before a federal investigative panel, two dozen congressional hearings and several internal company reports have brought the genesis of the spill into sharp focus. The record shows there was no single fatal mistake or cut corner. Rather, five key human errors and a colossal mechanical failure combined to form a recipe for unprecedented disaster.
It's a great summary of everything that went wrong. Thanks, Marc, and good luck with your course!
Jamie Baker Roskie
March 22, 2010
Bethlehem Steel Reborn
Like Chad Emerson, I've been blogging less of late, although not for the glamorous reason that I have a popular book out! My excuses are more pedestrian - Spring Break (where I actually endeavored, mostly successfully, to take two and a half days off), recruitment for summer and fall clinic classes, and a 30 foot pile of dirt recently dumped in my neighborhood (more on that later).
Over Spring Break I visited Bethlehem, Pennsylvania. Bethlehem is most famous for being the former home of Bethlehem Steel and for being the sister community of Allentown, Pennsylvania, which is the subject of a Billy Joel song. As the song goes, "Well we're living here in Allentown...Where they're closing all the factories down..."
However, that was over 20 years ago - Bethlehem Steel stopped producing in 1995, and the site is being redeveloped. The former plant is now the home of a Sands Casino and the Smithsonian's National Museum of Industrial History, as well as business incubator space and other industrial uses. Also, a very cool website called Save Our Steel makes the case for retaining a historic industrial district on the site. One woman feels so strongly about it she's had the Bethlehem Steel site tattooed on her back, which is much more artful than it sounds. I'm wondering if Will Cook knows anyone else with a tattoo of their favorite historic site!
At any rate, Bethlehem is coming back in its own way. I'm attaching a photo of the Sands sign, which I took from a small Habitat for Humanity subdivision being built on a bluff overlooking the Bethlehem Steel site. It's a community definitely worth keeping an eye on.
Jamie Baker Roskie
February 03, 2010
Interdisciplinary Problem Solving in Newtown
As you all might have noticed from previous posts, our clients in Gainesville, Georgia are getting a fair amount of press lately. The client is the Newtown Florist Club, an environmental justice organization working on industrial pollution issues in their neighborhood. Two nights ago we had a community meeting to discuss the work of our interdisciplinary team on Newtown's problems. The meeting got a nice write up in the local paper. Presenters at the meeting included Kathi Wurzel, a toxicologist who's been collecting environmental data and assessing previous health studies for Newtown, Marshall Shepherd, a meteorologist and climatologist studying air quality in Newtown, Alfie Vick, an environmental design professor and landscape architecture whose students have been helping residents envision redevelopment in their neighborhood, and Nik Heynen, a geography professor and community organizer who is currently helping NFC with a community garden project. Rose Johnson-Mackey and Faye Bush of the Florist Club facilitated. The meeting was well attended - close to 60 folks came. Many attendees seemed to appreciate hearing about the different types of work being done in Newtown. There was a bit of controversy at the end of the meeting, but everything remained civil. You can't ask for more in a public meeting, I think.
Jamie Baker Roskie
January 29, 2010
Newsweek on-line has the article "An Unquiet Nation" The subtitle is "Audio ecologist Gordon Hempton talks about America's vanishing quiet spaces, and how our lives can be helped by listening to the silence." Hempton has traveled the world looking for silent places, and he's finding fewer and fewer. In 2007 there were only 3 places left with 15 minute intervals of silence, one of which is in Olympic National Park in Washington state. The primary problem is air travel, which is not a land use problem per se.
However, many communities struggle with the issue of noise and the similar problem of light pollution. (See a UGA Land Use Clinic guidebook on local regulation of light pollution here.) My clients in the Newtown neighborhood of Gainesville, Georgia would probably find Hempton's search for absolute silence a bit precious. They're just hoping for some relief from the constant background hum from the nearby grain mill and the intermittent crash of metal on the junkyard site that sometimes exceeds OSHA standards - meaning folks should be wearing earplugs in their yards to avoid hearing loss. (See our environmental consultants' report here and give it a few moments to download.)
Still, noise pollution of all kinds is wearing on the nerves and potentially damaging to health (also as documented in the report linked above). I'm not sure I've ever been in a place totally free of mechanical sound and, although I hadn't thought about it before I read this article, that thought does make me a bit sad.
Jamie Baker Roskie
December 31, 2009
Hills & Schleicher on the Steep Costs of Noncumulative Zoning
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, forthcoming in the University of Chicago Law Review, Vol. 77, No. 1, 2010. The abstract:
In cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: Cities seek to (a) reduce the degree to which urban manufacturers are held responsible for nuisance and (b) subsidize urban manufacturing by reducing the competition for land and hence reducing the price.
In this essay, we argue that non-cumulative zoning is an idea whose time has passed, if there ever was a convincing case for it at all. The two major justifications for non-cumulative zoning are flawed, and alternative means could achieve the same ends with fewer costs. The large number of nuisance claims engendered by urban manufacturing could be addressed by creating a “right to stink” in certain zones, allowing residential and commercial users to move into these zones but prohibiting them from suing manufacturers who are not violating regulatory laws. As for the second manufacturer-subsidizing justification, subsidies cannot be justified in terms of a subsidizing city’s own welfare unless the external “agglomeration” benefits of manufacturing exceed the cost of the subsidy to the city. Moreover, the broader social perspective also requires that some cities are better able to capture those agglomeration benefits than others, meaning that competition between jurisdictions could result in total increases in wealth. However, non-cumulative zoning is unlikely to achieve either local or broader social efficiency. Its scope is not closely tied to any theory of external benefit; it encourages the inefficient use of land and the substitution of land for other inputs; and it hides the true cost of urban manufacturing subsidies from the public. If urban manufacturing must be subsidized, a direct cash subsidy system would be preferable, particularly if it could be funded directly from taxes on the increased value of land caused by the removal of a non-cumulative zoning designation.
Looks very interesting. I agree that non-cumulative industrial zoning is counterproductive, not only from the efficiency standpoint but also because it is the mirror image of residential-only zoning, which creates sprawl and prevents mixed use.
December 22, 2009
Article Series on Newtown
As I've previously posted, a Land Use Clinic client, Newtown Florist Club and the Newtown neighborhood, has been the subject of a three article series in the Gainesville Times. The final article contains reaction from public officials to our proposals to amend the city's noise and air pollution ordinances. We're trying to get the city to enforce some industrial performance standards to control the serious noise and dust caused by the neighboring scrapyard and other industry. As you can from the article, it's a long and difficult struggle. I encourage you to view the slide show, which shows the level of aesthetic nuisance the neighborhood endures.
Jamie Baker Roskie
December 07, 2009
"Life in the shadow of industry"
Today our clients the Newtown Florist Club, and the Clinic, got some great coverage in the Gainesville (GA) Times. This article, hopefully the first in a series, covers the impact of industry on the Newtown neighborhood, something I've discussed in a previous blog post and that one of my students also discussed in his guest post. I'm very pleased with this coverage - this reporter, Ashley Fielding, has really gotten at the history and nuance of this complicated situation, which implicates zoning, public health, nuisance, race, class, community and economic development, and much more. Who says newspaper reporting is a dead art?
Jamie Baker Roskie
December 7, 2009 in Community Design, Community Economic Development, Environmental Justice, Environmental Law, Georgia, Industrial Regulation, Local Government, Nuisance, Planning, Politics, Property, Race, Redevelopment, Zoning | Permalink | Comments (0) | TrackBack
November 24, 2009
Environmental Justice & Scrapyard Regulation
This is another in an occasional series of UGA Land Use Clinic student-authored posts. Today's guest blogger is Ryan H. Dodd, former Army JAG lawyer and current LL.M. Candidate in Environmental Law.
By way of background, the Newtown Community has been actively fighting these environmental justice issues for decades now. Because of the community’s location in the midst of the city’s industrial zone, many of the battles fought have been between the community and neighboring industrial businesses. Currently, the focus of attention has fallen on a neighboring scrap yard and the nuisance it is creating via fugitive dust and noise from its scrap processing operations. With regard to many of the other types of heavy industrial businesses near Newtown, the Georgia Environmental Protection Division (EPD) has been able to step in and regulate. This has been because these businesses are required to carry permits that are enforceable by EPD. Unfortunately, scrap recycling is one of those businesses, as I have found, that does not have any stringent regulation or permitting process. Therefore, the EPD has taken a hands-off approach, leaving it up to the local government to regulate.
Specifically, my involvement in this process has centered on the issue of code enforcement. I have looked at how similar issues have been handled throughout the nation. Not only is Georgia failing to regulate scrap yards, but so are most states. The exceptions are Florida, New Hampshire, and Indiana, which have enacted programs known as “Green Yards” and “Clean Yards” respectively that create an incentive-based system to get scrap yard owners to voluntarily comply with environmental laws and regulations. This is a potential model that we are looking at proposing in Georgia.
Another issue that I have been researching is the utilization of existing code enforcement for dealing with nuisances, particularly fugitive dust and noise. In the cases of Gainesville, these issues are enforced by the public works department. However, other municipalities use their health departments for enforcement of these issues and it appears that these are working quite effectively. This is because, in most cases, a health department has the knowledge base and tools to deal with nuisance issues. It will be interesting to see how receptive local governments will be to taking some new approaches to code enforcement. Many may continue to wrestle with budgetary constraints or personnel shortages. However, if a municipality is to truly deliver the best services it can to its citizens, then it is incumbent upon them to embrace new frameworks in order to competently address some of these old problems.
One thing that continually amazes me is how many communities in Georgia struggle with unregulated scrapyards creating nuisances and hazards. While these are outliers in an industry that generally provides a needed community service, it's enough of a problem that the clinic has taken this up as a project theme over many semesters. Let's hope that Georgia is willing to adopt a "Green Yards" or similar approach as a step in the right direction.
Jamie Baker Roskie
November 05, 2009
Atlanta is America's Most Toxic City
My colleague Helen Kang, director of the Environmental Justice Clinic at Golden Gate University, just sent me a link to this article on Forbes.com proclaiming Atlanta the nation's most toxic city. But, look out Matt Festa, Houston's hot on Atlanta's heels at number three on the list. Take heart, though, Matt. Houston's air is so polluted that it's become a world hot spot for air pollution research. It's always good to be cutting edge!
The article lauds New York as less toxic due to its excellent public transportation system (and related density) and Portland as a model of land use planning. This lends even more support to the premise of Professor Nolon's article, which I blogged about earlier today.
Jamie Baker Roskie