Friday, February 20, 2015

Update on Pace Law / Yale F&ES project on local governance of hydraulic fracturing

News from John Nolon about the Pace Law / Yale F&ES work on local governance of hydraulic fracturing:

Pace Law School’s Land Use Law Center and the Yale School of Forestry and Environmental Studies (F&ES) are collaborating to identify the distinctly local impacts of hydraulic fracturing and how local governments can respond where they are not satisfied that federal and state regulations properly mitigate these local effects.  The attached guest blog by Christopher Halfnight, F&ES '15, reports that this joint research team is “building a suite of tools to empower local government decision-making on a range of shale-related local governance challenges. The project’s stakeholder workshops and research to date have helped fashion the first significant resource in that toolkit: a comprehensive impacts framework cataloguing the potential local effects from shale oil and gas development. The research team developed this framework of fracking impacts to help orient communities to potential risks and benefits of shale development. The framework represents a major new resource to provide both a significant knowledge base for local government decision-making and a substantive legal foundation for regulatory and non-regulatory actions.” The full blog is here

February 20, 2015 | Permalink | Comments (0)

Thursday, February 19, 2015

Gorillas, Elephants and Local Regulation of Hydraulic Fracturing

The Supreme Court of Ohio weighed in this week on state versus local control of oil and gas operations, in a case, Morrison v. Beck Energy Corp, that included 3 separate dissenting opinions, one of which invoked gorillas and another of which invoked elephants in colorfully making their case. The concurring opinion likely means that the court raised more questions as opposed providing very many answers. However, the panoply of arguments in the opinions generate, at least to me, some fascinating thoughts on the line between zoning and state regulation of oil and gas operations, the topic of my recent law review article. I wish this decision had been released prior to the completion of my article!

Ohio R.C. Chapter 1509 gives the state government "sole and exclusive authority" to regulate the permitting, location, and spacing of oil and gas wells and production operations. The question raised is whether the Home Rule Amendment to the Ohio Constitution grants the city of Munroe Falls the power to "enforce its own permitting scheme atop the state system". The court ruled that it does not.

Ohio R.C. 1509.02 preserves local authority in two categories: control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts; and the power to grant permits to operate certain heavy vehicles on highways within the locality. However, these powers cannot be exercised in such a way as to discriminate "against , unfairly impede, or obstruct oil and gas activities and operations regulated" under the state code. The state regulations address well spacing, setbacks, proximity of the well to other wells and private dwellings, safety of the operation, protection of the public and private water supply, fencing and screening, waste containment and disposal, access roads and noise mitigation. Note that many of these issues are commonly addressed by zoning ordinances (see, e.g., Richardson, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (2104).

Beck's permit contained 67 different conditions that related to, among other things, the designation of the site as a municipal wellhead protection area and "urbanized areas" protections, like noise mitigation and parking. Again, the "urbanized areas" conditions appear to be very much zoning provisions.

Soon after Beck began drilling, the city issued a stop-work order and filed a complaint for injunctive relief, alleging that Beck's operations violated multiple city ordinances. Five of those ordinances are at issue. The first requires a "zoning certificate" issued by the zoning inspector under the general zoning ordinance. The other four fall under an ordinance specifically regulating oil and gas drilling. However, even these ordinances relate back to zoning, with one requiring a conditional zoning certificate. The other three relate to the filing fee ($800), performance bond ($2,000 deposit required upon filing) and a required public hearing (at least three weeks prior to drilling), associated with the conditional zoning certificate.

Beck argued that the ordinances conflict with the state statutory scheme. The trial court granted the injunction and required Beck to comply with the ordinances. The court of appeals reversed, rejecting the city's argument that the Ohio Constitution's Home Rule Amendment allows it to impose separate permit requirements on oil and gas operations.

Are the ordinances a valid exercise of home-rule power (a consistent theme among oil and gas local regulation cases)? The amendments gives local governments in Ohio "broadest possible powers of self-government in connection with all matters which are strictly local and do not impinge upon matters which are of a state-wide nature or interest" [emphasis added].  However, the amendment does not allow local ordinances to conflict with general laws. The court set out the test of when a local ordinance must yield to a state statute as containing three prongs: (1) the ordinance is an exercise of police power, not local self-government; (2) the statute is a general law; and, (3) the ordinance is in conflict with the state statute. The city conceded that the ordinances are exercises of the police power.

Four conditions are required to classify a statute as a general law: (1) the statute must be part of a statewide and comprehensive legislative enactment; (2) the statute must apply to all parts of the state alike and operate uniformly throughout the state; (3) the statute must set forth police sanitary, or similar regulations, rather than purporting to grant or limit legislative power of a local government to prescribe regulations; and, the statute must prescribe a rule of conduct upon citizens generally. The city disputed only the second requirement, arguing that only the eastern part of the state has economically viable quantities of oil and gas. The court found that similar arguments had been rejected in earlier cases and rejected this argument.

Using the standard definition of conflict as meaning that the "ordinance permits or licenses that which the statute forbids and prohibits, and vice versa", the court found that the ordinances conflict with the state statute. The court found two types of conflicts. First, rejecting the city's argument that the ordinances and statute regulate "two different things", the court ruled that the ordinances prohibit what the statute allows. Secondly, the court found that the language of the state statute expressly preempts the local ordinances at issue. The judgment of the Court of Appeals was, therefore, affirmed.

A thoughtful concurring opinion seems to remove any force that the majority opinion would otherwise possess. The concurring opinion emphasizes "the limited scope of [the] decision", expressly limiting the decision to the five ordinances at issue. According to the concurrence, the appeals does not "present the question of whether [the state statute] conflicts with local land use ordinances that address only the traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality’s long-term plan for development, by limiting oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling.". I'm not sure that I agree with this assertion. The ordinances at issue in this case sound a lot like zoning to me.

The concurring opinion presents a fascinating argument on preemption. Namely, the opinion states that "location" and "spacing" have specialized, technical meanings in oil and gas law, citing 1 Summers, The Law of Oil & Gas, Section 5.1, at 268 (3d Ed. 2004). These terms relate to maximizing efficiency and protecting correlative rights in the oil and gas realm. Interestingly, these are the state interests that I identified in my law review article as state interests that bans conflict with. I also acknowledge Alex Ritchie's excellent article, "On Local Fracking Bans: Policy and Preemption in New Mexico", 54 Nat. Resources J. 255 (2014), which also recognizes these concerns. I relied some of Professor Ritchie's cogent analysis (contained in an earlier version of his article) in my law review article. 

Justice O'Donnell goes on to reason that, since the state government's notion of "location" and "spacing" are based on different considerations than the local zoning ordinance's notion of "location" and "spacing" that both can co-exist without conflict. I'm not sure that such a fine line can be drawn, or that the state legislature considered this distinction in crafting the state statutes. However, the notion is intriguing. I'll have to think on this one more.

Justice Pfeifer dissented, opining that the state statute "leaves room for [local governments] to employ zoning ordinances that do not conflict with the statute". Justice Lanzinger also dissented, joined by Pfeifer and O'Neill, similarly thinking that the actual ordinances at issue do not clearly conflict with the state statute, and that zoning can co-exist with the state regulation. This dissent cites cases in New York, Pennsylvania and Colorado as supporting the dissent. Lanzinger's conclusion is notable, so I set out that paragraph in full.

"There is no need for the state to act as the thousand-pound gorilla, gobbling up exclusive authority over the oil and gas industry, leaving not even a banana peel of home rule for municipalities. I would reverse the judgment of the court of appeals and remand to that court for further proceedings."

Justice O'Neill's dissent is set out in full below. 

"I join Justice Lanzinger’s well-written dissent. Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio. Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the Village of Indian Hill—local zoning dating back to 1920 be damned."

Like the majority opinion in Robinson, which made a similar argument with respect to Act 13, I respectfully submit that Justice O'Neill's assertion may be possible in theory, but not in practice. As pointed out by dissenters in Robinson, the state statute has setbacks and the state agency imposes conditions. In this case conditions pertaining to "urbanized areas" were imposed. The parade of horribles here would never happen in reality. And, "to be clear", the wealthy residents of the neighborhoods listed by Justice O'Neill would never be subjected to oil and gas operations "in their backyards".

So what does this case mean? I'm not sure, but perhaps not much. The arguments may further blur the lines between local zoning regulations and state oil and gas regulation. I'm looking forward to pondering the opinions further and trying to figure it out.

Jesse Richardson



February 19, 2015 | Permalink | Comments (0)

Spence and Fershee on Local Control of Fracking

For those interested in the local control of fracking, there is a nice article by David Spence in the Texas Law Review and a response by Joshua Fershee in the Texas Law Review See Also.  Details and abstracts below.

The abstract for David B. Spence's (Texas Law) The Political Economy of Local Vetoes:

The law is frequently called upon to resolve regulatory conflicts that arise when a majority mildly prefers policy X, and minority strongly prefers policy not X. Two emerging bodies of case law present this problem, both associated with the growing number of challenges to local restrictions on the use of hydraulic fracturing ("fracking") to produce oil and gas. One set of cases involves claims that these local restrictions are preempted by state oil and gas law; the other involves claims that, where a local ordinance survives preemption, it amounts to a regulatory taking. This article explores how the distribution of the costs and benefits of fracking drive the politics that provoke preemption and takings conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns. A close examination of the distribution of the impacts of fracking reveals that while most of the costs (especially the least speculative costs) and many of the benefits fall on locals, other, significant costs and benefits of production extend beyond local government boundaries. This suggests that since the state subsumes more of the impacts within its borders than does the local jurisdiction, the state is better situated to produce regulation that balances the costs and benefits of fracking. However, this line of reasoning does not account for the fact that locals and nonlocals have different preference intensities over this issue. If we want a decision process that accounts for preference intensities (rather than merely preference aggregation), then local government decision-making might do a better job of maximizing welfare, particularly if local governments can capture more of the benefits of production through taxation or other transfer programs. Finally, with respect to takings claims, it seems unlikely that the Supreme Court will adjust takings doctrine to permit the use of compensation schemes that produce efficient outcomes. Rather, it seems more likely that states or the private sector will allow local governments to capture more of the benefits of fracking directly, which offers another path to efficiency.

The abstract for Joshua P. Fershee's (WVU Law) response, How Local is Local?:  A Response to Professor David B. Spence's the Political Economy of Local Vetoes:

Professor Fershee responds to Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015). Professor Spence notes that the shale oil and gas debate provides an example of “an age-old political problem that the law is called upon to solve: the conflict between an intensely held minority viewpoint and a less intense, contrary view held by the majority.” In resolving such conflicts, Spence suggests that courts should resolve such “conflicts in ways that encourage states and local governments to regulate in ways that weigh both the costs and the benefits of shale oil and gas production fairly and fully.” 

This Response suggests the Professor Spence’s test for local control is a sound, but adds another factor contributing to local control. As noted above, another way of considering local control over oil and gas operations is to view local control as state-level control. This Response proceeds under the premise that each state should decide whether it wishes to allow its municipalities to exercise oil and gas related vetoes. In analyzing whether local vetoes are efficient under Professor Spence’s test, this article analyzes recent decisions in New York, Pennsylvania, and Colorado. 

This Response concludes that as long as state-level regulation is the primary basis for oil and gas regulation, Professor Spence’s overarching rule that state and local governments pursue regulations seeking to balance the costs and the benefits of shale oil and gas production “fairly and fully” is a foundation for good regulation. In this sense, local (meaning state or smaller subdivisions) vetoes are critical, but how “local” the vetoes are is less important. The key, then, is ensuring that courts and regulators are actually balancing costs and benefits.

February 19, 2015 | Permalink | Comments (0)

Last Day for RMLUI Conference's Early Bird Prices

  2015 Rocky Mountain Land Use Institute Conference

Last Day for Early Bird Prices

Today is the last day to take advantage of Early Bird rates for
RMLUI's 24th Annual Land Use Conference.

After today, registrations costs will go up, so take advantage of the lower rates while they're still here.

We have an amazing line up this year.

  • A bonus workshop: Local Responses to Fracking.
  • A keynote by noted author Timothy Beatley.
  • 2 Plenary Lunches:
    • The Genesis and Future of Federal Large Landscape Conservation Policy
    • From Smart Growth to the New Urban Economics
  • 2 Tours:
    • Touring the Alliance Center: A Pioneering Sustainability and Collaboration Hub
    • Touring Denver Union Station
  • 8 Tracks, including our featured track on Resilient Communities
  • 36 Sessions, covering everything from TOD to legal and planning updates to reclaimed water to new technology.

Don't miss out! Visit RMLUI's website or download the conference app for more information. You can also download our event app to get program updates, speaker bios, and more.

  Register today!

The 24th Annual RMLUI Land Use Conference is brought to you in part by:

The University of Denver Sturm College of Law is committed to providing facilities that are accessible to persons with and without disabilities. We encourage persons who require assistance to contact Lisa Bingham at or 303-871-6319 for further information.


February 19, 2015 | Permalink | Comments (0)

Tuesday, February 17, 2015

Jane Jacobs' Seoul

A study of walkability in Seoul proves that Jane Jacobs' Death and Life design principles have applicability beyond the shores of Manhattan.  Here is the abstract:

Jane Jacobs’s The Death and Life of Great American Cities (1961) had an enormous influence on urban design theories and practices. This study aims to operationalize Jacobs’s conditions for a vital urban life. These are (1) mixed use, (2) small blocks, (3) aged buildings, and (4) a sufficient concentration of buildings. Jacobs suggested that a vital urban life could be sustained by an urban realm that promotes pedestrian activity for various purposes at various times. Employing multilevel binomial models, we empirically verified that Jacobs’s conditions for urban diversity play a significant role with regard to pedestrian activity.

The article:  Hyungun Sung , Sugie Lee, & SangHyun Cheon, Operationalizing Jane Jacobs’s Urban Design Theory: Empirical Verification from the Great City of Seoul, Korea.  Journal of Planning Education and Research 1–14 (2015).  DOI: 10.1177/0739456X14568021.


February 17, 2015 | Permalink | Comments (0)

Sunday, February 15, 2015

NPR takes on new urbanism

Last week, NPR's Cities Project ran two interesting stories about a new urbanism community in Austin, Texas.  Both are worth a listen, here and here.


February 15, 2015 | Permalink | Comments (0)

Friday, February 13, 2015

CFP: Land Policies in South Asia: Promises, Practices and Challenges

Thanks to Eran Kaplinsky (U Alberta Law) for bringing this conference to our attention.


Land Policies in South Asia: Promises, Practices and Challenges

First South Asian Regional Conference of the International Academic Association on Planning, Law, and Property Rights  

(1st SARC PLPR) 

1 - 3 September 2015

National Law School of India University, Bengaluru.


Call for Papers:

The land question is central to the South Asian development tale for at least two reasons: First, the majority of its population stills obtains their livelihood from agriculture and allied activities while landholding is highly skewed; Second, urban planning is facing unprecedented challenges due to a gush of migration to cities seeking livelihood resulting in bourgeoning property values. 

Responses to these challenges through laws and policies have been very high compared to the academic attention they have received. Yet, practices emerging from planning and policies have exposed limited reach on the extent of problems. This paradox calls for serious introspection and academic engagement.

The conference welcomes papers that provide theoretical analysis, economic/social analysis of planning, case studies of the implementation of planning and regulation instruments, practices related to law and planning, analysis of case laws in a selected segment. We particularly encourage students who can imaginatively approach the traditional issues even if their ideas are controversial.

Some of the tentative topics to which invitation is made are:

  • Property Rights and Markets
  • Informal Housing
  • Environmental Laws and Regulations
  • Land Acquisition Practices and Policies
  • Property and Exclusion
  • Forest Rights
  • Second Generation Land Reforms
  • Real Estate Developments and Regulation
  • Corruption in Planning
  • Illegal Construction and Mining
  • Participation in Planning
  • Smart Cities with innovative land and water management systems  

The last date to submit an abstract (300 words) is 31 March. All abstracts will be peer reviewed and decision about the inclusion of paper in the conference will be communicated in the last week of April 2015.

Visit for further details

February 13, 2015 | Permalink | Comments (0)

Thursday, February 12, 2015

Water Down Under: A Report from Australia by Barbara Cosens: Post 4: The nature of the right to water

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts herehere, and here.]

In the first of three conversations with UIdaho 3L law student Claire Freund on adaptability of Australian and U.S. water law introduced in an earlier blog, we explore the nature of the right to water.  Adaptability in the face of the uncertainties created by the intersection of climate change and population growth requires an overlapping capacity to respond at multiple levels of water management including the individual.  Yet rapid response can be destabilizing if not carefully prescribed.  In the case of an essential and common pool resource like water, a balancing act between governmental discretion to manage and the certainty of individual investment in development of water must take place.  We see this play out in the various ways governments approach defining the nature of the water right – specifically (1) how much latitude does government have to regulate water allocation and use; and (2) how transferrable are individual water rights. Australia and the western U.S. are currently following very different trajectories on these issues.   The degree of latitude for government regulation depends on the how we define the property interest of the water user.  In both countries this issue is currently in the lower courts and (fortunately) not settled law. Both Australia and the U.S. began their process of defining that interest with adoption of the common law of England.  Aridity over much of Australia and that portion of the U.S. west of the 100th Meridian, led to substantial divergence from English common law in both countries.  Both retain the concept that water is a public good, held by the state but with individual use rights. But, whereas Australia adopted a concept of shared shortage, the western U.S. rewarded investment by granting superior rights to those who developed first.  Currently, Australia defines water rights as subject to considerable regulation by the state.  Reductions due to drought or environmental needs of up to 70% of historic use in a process or registration of rights have not required compensation -- an outcome that would result in rebellion among water user communities in the U.S.  In contrast, U.S. lower courts currently view any reduction in beneficial use as the result of governmental regulation as compensable -- an odd outcome that results in government having less latitude to regulate use of a public good than it has to regulate land use.  Somewhere between the two viewpoints lies the most legally defensible as well as the most adaptable solution.  One in which government has the power to respond to drought and environmental needs within bounds that provide sufficient certainty for water users to plan.   Complementing the inquiry into adaptive capacity for government regulation, individuals must also have capacity to adapt, both because response is much quicker at the individual level and because it can be tailored to local needs.  This leads us to the question of transferability.  Transferability requires: clarity in definition of the right; authority to transfer; and because water is a shared public good, attention to third party impacts.   In the western U.S., water rights are defined by priority and application to beneficial use and the clarity of this definition has been aided in recent decades by adjudication and the corresponding creation of centralized water right databases.  Australia began addressing the transferability of water rights during the 15-year Millennium Drought (1995-2010) through a process of registration of water rights that included what is referred to as “unbundling”.  Unbundling separated the water right from the land, thus making it transferrable without sale of land.  It is in the attention to third party impacts (one of the greatest limits on transferability of water because of increasing transaction costs), that the two countries have taken very different approaches.  In the western U.S., an individual inquiry into third party impact takes place before any transfer is approved.  In Australia, the government may approve a transfer if it is consistent with the general water plan for the region.  The U.S. process increases transaction costs, but protects other uses of a shared resource.  The Australia process, reduces transaction costs, but substantially increases the possibility of third party impacts.  As with the definition of the property interest, a middle ground between the two approaches might be the best.  In a project with Mike Brady and Jon Yoder, economists from Washington State University, we are looking at definition of the consumptive portion of a diverted irrigation right as the presumptively transferable portion.  Australia’s process of unbundling, taken a step further to separate out the portion of the water right that crops actually consume, could accomplish this without altering the use right itself.  The individualized inquiry into third party impacts would be much faster for the consumptive portion of the right.  Its addition in Australia might then be less onerous.   In the face of increasing demand and drought, both Australia and the United States are wrestling with the same issues regarding the definition and transferability of water right.  In doing so, each would be wise to take a page from the other’s playbook.

February 12, 2015 | Permalink | Comments (0)

Wednesday, February 11, 2015

Why are building inspectors so often on the take?

Here we go again.  Another line-up of building inspectors smiling for the camera...taking their mug shots.  New York City just raided its building department, charging 16 with taking bribes, as well as 31 others in the construction trades.  The NYT has the story here.  

Having practiced land use law in San Francisco in an era when the building department there was raided multiple times by the FBI, I can't help but be dismayed by this latest turn in NYC.  I wonder:  What is it about building departments that makes bribery happen so often?  Is it too naive to believe that complex building codes can exist, and be enforced, without expediters, graft, and kick-backs?

Stephen R. Miller

February 11, 2015 | Permalink | Comments (2)

Tuesday, February 10, 2015

What makes people leave rural areas, and what makes them stay

Earlier this week, Joshua Hightree, a graduate student in the University of Idaho's Bioregional Planning Program, presented a really interesting work-in-progress to the Idaho Legislature.  The work is based upon a somewhat remarkable data-set:  7,000 rural individuals answered 212 survey questions in 26 community surveys taken between 2000 and 2014 in rural communities across the State.  The research paints a vivid picture of what is wrong, and what is right, with rural life in Idaho, and may be applicable more broadly.  

The studies found that there were three major trends in dissatisfaction with rural life:  the quality of K-12 education; housing availability; and housing condition. 





The study also found that the greatest areas of dissatisfaction with rural life focused around recreational opportunities, job variety and quality, and the lack of vocational- and post-secondary training opportunities. 



Areas of satisfaction with rural life included a number of aspects of social capital:


Mr. Hightree is still working on the final report and analysis, but was willing to share this information now. This data set and its analysis seems a potentially valuable contribution not only to understanding rural life in Idaho but perhaps would be applicable to understanding other areas, as well.

Stephen R. Miller





February 10, 2015 | Permalink | Comments (4)

Monday, February 9, 2015

Citi, Wells Fargo, JPM defeat mortgage discrimination lawsuits

From Reuters:

A federal judge in California has dismissed lawsuits brought by the Los Angeles Unified School District alleging mortgage discrimination by three of the nation's biggest banks, ruling the district has not shown how it was harmed.
In three separate orders on Tuesday, U.S. District Judge Otis Wright rejected the school district's argument that it lost property tax revenue because of discriminatory lending by Citigroup Inc, Wells Fargo & Co and JPMorgan Chase & Co.
Local property taxes do not determine the school district's level of funding because state and local revenue are commingled in a single fund under state control, Wright said, agreeing with the banks' arguments.
Full article only on Westlaw link here right now.

The cases:  The school district's cases, all in U.S. District Court in California's Central District, are Los Angeles Unified School District v. Wells Fargo & Co et al, No. 14-cv-7370; Los Angeles School District v. Citigroup Inc et al, No. 14-cv-7368; and Los Angeles Unified School District v. JPMorgan Chase & Co et al, No. 14-7369.

Hat tip to Jonathan Rosenbloom...

February 9, 2015 | Permalink | Comments (0)

Feb 26 - Trading High in the Sky: Transfer of Development Rights

of the Zicklin School of Business in association with the 
New York City Department of City Planning presents

A critical understanding of TDRs with a look toward change.

Carl Weisbrod, Chairman, NYC Planning Commission 

There will be no charge for this event. 

This important and timely forum will convene an influential group of national and local experts from government, the real estate industry, academia and the legal and planning professions, to survey existing TDR mechanisms, analyze their success, and explore various alternatives to reform their use. 

Opening presentations will include a Keynote Address by Carl Weisbrod, Director of the New York City Department of City Planning and Chairman of the New York City Planning Commission. Panelists will include David Brown, Director of Real Estate, Archdiocese of New York; Kenneth K. Fisher, Partner, Cozen O’Conner; David Karnovsky, Partner, Fried, Frank, Harris, Shriver & Jacobson LLP; Jerold S. Kayden, Frank Backus Williams Professor of Urban Planning and Design, Harvard University Graduate School of Design; Michael Kwartler, President, Environmental Simulation Center; Margaret Newman, Executive Director, Municipal Art Society of New York; Rick Pruetz, Principal, Planning & Implementation Strategies; Richard J. Roddewig, President & Co-Founder, Clarion Associates, Inc.; David Schleicher, Associate Professor of Law, George Mason University School of Law; Robert I. Shapiro, Founder and President, City Center Real Estate; Dan Sider, Senior Advisor for Special Projects, San Francisco Planning Department; Robert Von Ancken, Executive Managing Director, NGKF, Capital Markets, and other industry leaders.

Since the city enacted legislation more than 40 years ago to allow landmarks to transfer their unused development rights to adjacent sites, only a handful of properties have taken advantage of these provisions. While the City of New York has been a pioneer in TDRs with the creation of the Theater District, Grand Central Sub district, the South Street Seaport, and the West Chelsea Highline District to allow wider transfer of development rights to achieve specific policy objectives, individual landmarks have little flexibility to sell their unused development rights in order to fund maintenance and maximize value. Without debating the merits of landmarking, the conference will importantly explore new ideas for loosening the current regulatory controls to facilitate the transfer of development rights from landmarks. 

Discussions will examine the legal and land use basis for the current regulations; issues related to the current regulatory framework, and proposals for wider transfers. The examination would cover issues related to public review, conflicts with other public policy priorities, and potential benefits to landmarks and the city. Critical questions considered will include: how far should development rights be allowed to transfer; what obligations, if any, should be imposed on the sellers and buyers of these rights; and how might these development rights be accommodated while ensuring that the physical character of the receiving neighborhoods is not undermined. 

While much of the focus would be on the transfer of development rights from landmarks, potential areas of discussion will include wider transfers for significant sites under private and public ownership, as well as an exploration of how such transfers (along with bonus mechanisms) impact the City’s land use planning generally.

Photo: CIM Group & Maclowe Properties
Location Information:
Baruch College - Information & Technology Building (Library Building)
151 E. 25th St.
Room: Atrium, Rackow Room and Lounge - Rooms 750 and 760
Contact Information:
Name: Sara Hilska Taylor
Phone: 646-660-6950

Hat tip to David Schleicher for the heads up...



February 9, 2015 | Permalink | Comments (0)

Thursday, February 5, 2015

Homsy & Warner: Cities and Sustainability: Polycentric Action and Multilevel Governance

A very interesting article in the January, 2015 edition of Urban Affairs Review by George C. Homsy (Binghamton)  and Mildred E. Warner (Cornell) called "Cities and Sustainability: Polycentric Action and Multilevel Governance."  Here is the abstract:

Polycentric theory, as applied to sustainability policy adoption, contends that municipalities will act independently to provide public services that protect the environment. Our multilevel regression analysis of survey responses from 1,497 municipalities across the United States challenges that notion. We find that internal drivers of municipal action are insufficient. Lower policy adoption is explained by capacity constraints. More policy making occurs in states with a multilevel governance framework supportive of local sustainability action. Contrary to Fischel’s homevoter hypothesis, we find large cities and rural areas show higher levels of adoption than suburbs (possibly due to free riding within a metropolitan region).

Important empirical research for those of us (myself included) who advocate for "bottom up" planning processes.

Here is the cite:  Urban Affairs Review 2015, Vol. 51(1) 46–73; DOI: 10.1177/1078087414530545.

February 5, 2015 | Permalink | Comments (0)

Fordham Urban Law Journal Symposium on Law, Urban Space, and the Future of Artistic Expression

I just got word of this conference announcement so it hasn't yet made it to the official list, but I am so bummed that I can't make it to NYC for this upcoming symposium. It features one of my favorite artists.


Law, Urban Space, and The Future of Artistic Expression



Thursday, February 26, 2015
9 a.m.—5 p.m.



The symposium will examine legal issues surrounding street art, such as intellectual property and private and public spaces. It will also explore different perspectives of urban artistic expression, like large scale metropolitan art, the role of street art in shaping and changing communities, and the role of performance art generally in an urban space.

Continue reading

February 5, 2015 | Permalink | Comments (0)

Environmental Law and Land Use Conferences

As some of you may be aware, I maintain a list of environmental law, land use, and energy conferences that get sent my way. I just updated it and like to periodically remind people about its existence. It is a great place to learn about upcoming events in one place. It can also be helpful to people out their organizing their own events and trying to avoid conflicts. If your event isn't listed (and is an academic conference), send me the info and I will add it.

 The list is available here.

February 5, 2015 | Permalink | Comments (0)

Wednesday, February 4, 2015

U Florida Law hosts conference on "Kelo's First Decade" (Feb 5-6) and Robert Ellickson on open space in urban areas (Feb 26)

Michael Allan Wolf sends word of two outstanding events (and 70-degree weather) at Florida Law.  Video will be available a few days after each respective event.


When the U.S. Supreme Court issued its controversial 5-4 ruling in Kelo v. City of New London (2005) declaring economic redevelopment a valid “public use” under the Fifth Amendment it set off a stridently negative reaction in the media, in statehouses and in the courts. These reactions were certainly unanticipated after the near silence. The stridently negative reaction to Kelo in the media, in statehouses, and in the courts was certainly unanticipated after the near silence that followed earlier high court public use rulings in 1954 (Berman v. Parker, concerning urban renewal and 1984 (Hawaii Housing Authority v. Midkiff, concerning a land redistribution scheme). What exactly has happened since the smoke cleared on June 23, 2005, is a matter of interest and serious concern not only to those who practice state and local government, eminent domain, real property, land use, economic development, and constitutional law, but also to elected and appointed officials and the public at large.

For the Fourteenth Annual Richard E. Nelson Symposium, an outstanding group of national and state experts will join us in Gainesville to consider the changing landscape of public and eminent domain ten years after the jurisprudential tremors first registered by the Kelo Court. Florida is the perfect setting for this program, as the changes to statutory and constitutional law in the wake of Kelo have perhaps been the most extensive among the more than forty states to modify their laws since 2005. Scheduled presenters include Scott B. Bullock, Senior Attorney, Institute for Justice; David R. Carpenter, Partner, Sidley Austin LLP, Los Angeles; Marc Edelman, Associate Professor of Law, Zicklin School of Business, Baruch College; Bruce M. Harris, Partner, Harris Harris Bauerle Sharma, Orlando; Robert C. Hockett, Edward Cornell Professor of Law, Cornell University Law School; Alexandra B. Klass, Professor of Law, University of Minnesota Law School; Ilya Somin, Professor of Law, George Mason University School of Law; Amanda L. Hudson and Bradley S. Tennant, J.D. candidates, University of Florida Levin College of Law; and Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law. Symposium topics include the legal responses to Kelo, the perspective from Susette Kelo’s counsel, and the use of eminent domain to take sports stadiums and arenas, underwater mortgages, and energy transmission lines.

Download Nelson Symposium



UF Law Martin H. Levin Advocacy Center

This year’s Wolf Family Lecture guest speaker will be Robert C. Ellickson, the Walter E. Meyer Professor of Property and Urban Law at Yale Law School. The title of his talk is, “Open Space in Urban Areas: Might There Be Too Much of a Good Thing?”

The Wolf Family Lecture Series was endowed by a gift from UF Law Professor Michael Allan Wolf, who holds the Richard E. Nelson Chair in Local Government Law, and his wife, Betty.

Past scholars who have delivered the Wolf Family Lecture in the American Law of Real Property include Thomas W. Merrill, Charles Evans Hughes Professor of Law at Columbia Law School; Gregory S. Alexander, A. Robert Noll Professor of Law at Cornell Law School; Lee Fennell, Max Pam Professor of Law at the University of Chicago; Joseph William Singer, Bussey Professor of Law at the Harvard Law School; Vicki L. Been, Boxer Family Professor of Law at New York University School of Law; Carol M. Rose, Gordon Bradford Tweedy Professor Emeritus of Law at Yale Law School, and Lohse Chair in Water and Natural Resources at the James E. Rogers College of Law, University of Arizona; and Daniel A. Farber, Sho Sato Professor of Law at the University of California at Berkeley Law School.

February 4, 2015 | Permalink | Comments (0)

Tuesday, February 3, 2015

Land use law-related articles posted to SSRN in January

A couple days late (sorry, I was busy watching Punxsutawney Phil's webcam all day yesterday), here are the month's new land use law-related articles posted to SSRN.  If you posted an article January 1-2 and I missed it on this list, let me know and I'll find a way to make it up to you.  Search terms are "land use" within "last month."


1 Incl. Electronic Paper The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability 
Washington & Lee Legal Studies Paper No. 2015-23
Jill Fraley 
Washington and Lee University - School of Law 
Date posted: 
01 Feb 2015

working papers series

2 Incl. Electronic Paper The Politics and Economics of Metropolitan Sprawl 
Zoning Rules! The Economics of Land Use Regulation. Cambridge, Mass: Lincoln Institute of Land Policy, 2015, Forthcoming
William A. Fischel 
Dartmouth College - Department of Economics 
Date posted: 
23 Jan 2015

Last revised: 
24 Jan 2015

Accepted Paper Series

3 Incl. Electronic Paper The Failure of America's First City Plan 
Urban Lawyer, Vol. 46, p. 507, 2014
Maureen E. Brady 
Yale University, Law School, Students 
Date posted: 
01 Feb 2015

Accepted Paper Series

4 Incl. Electronic Paper This is Adaptation: The Elimination of Subsidies Under the National Flood Insurance Program 
Columbia Journal of Environmental Law, Vol. 39, No. 2, 2014
Sarah Fox 
Jones Day 
Date posted: 
08 Jan 2015

Accepted Paper Series

5 Incl. Electronic Paper The Historical Context of Land Reform in South Africa and Early Policies 
Potchefstroom Electronic Law Journal, Vol. 17, No. 2, 2014
Henk Kloppers and Gerrit Pienaar 
North-West University - Faculty of Law and North-West University 
Date posted: 
24 Jan 2015

Accepted Paper Series

6 Incl. Electronic Paper Determinants of Land Use Change in South-West Region of Bangladesh 
Jahangir Alam 
Khulna University 
Date posted: 
14 Jan 2015

working papers series

7 Incl. Electronic Paper Quantifying Causal Mechanisms to Determine How Protected Areas Affect Poverty Through Changes in Ecosystem Services and Infrastructure 
PNAS, Vol. 111, No. 11, 2014
Paul J. Ferraro and Merlin Mack Hanauer 
Georgia State University - Department of Economics and Sonoma State University - School of Business and Economics 
Date posted: 
22 Jan 2015

Accepted Paper Series

8 Incl. Electronic Paper The Effects of Land Use Policies on Modular Home Construction: A Comparative Case Study of Three Counties in Massachusetts 
Charlene Geary 
Wellesley Real Estate Group 
Date posted: 
11 Jan 2015

working papers series

9 Incl. Electronic Paper The Greener, the Happier? The Effects of Urban Green and Abandoned Areas on Residential Well-Being 
SOEPpaper No. 728
Christian Krekel Jens Kolbe and Henry Wüstemann 
German Institute for Economic Research (DIW Berlin) , German Institute for Economic Research (DIW Berlin) and Technische Universität Berlin (TU Berlin) 
Date posted: 
24 Jan 2015

working papers series

10 Incl. Electronic Paper The Changing Landscape of Agriculture in Ghana: Drivers of Farm Mechanization and its Impacts on Cropland Expansion and Intensification 
IFPRI Discussion Paper 01392
Nazaire Houssou and Antony Chapoto 
International Food Policy Research Institute (IFPRI) and International Food Policy Research Institute (IFPRI) 
Date posted: 
06 Jan 2015

Accepted Paper Series

11 Incl. Electronic Paper Barriers to Migration in a System of Cities 
Nathan Seegert 
University of Utah - Department of Finance 
Date posted: 
30 Jan 2015

working papers series

12 Incl. Electronic Paper A Comparative Analysis of Small Area Population Estimation Methods 
Cartography and Geographic Information Science, Vol. 37, No. 4, 2010, pp. 273-284
Sarah Brinegar and Stephen Popick 
Government of the United States of America - Civil Rights Division and George Washington University 
Date posted: 
01 Feb 2015

Accepted Paper Series

13 Incl. Electronic Paper Landfills as Anthropogenic Landforms in Urban Environment from Neamţ County. 
Mihai F.C, Apostol L., Ursu A., Ichim P., 2013 Landfills as anthropogenic landforms in urban environment from Neamţ county. AES Bioflux 5 (2):100-108,
Florin Constantin Mihai Liviu Apostol A. Ursu and Pavel Ichim 
Alexandru Ioan Cuza University - Department of Geography , Alexandru Ioan Cuza University - Department of Geography , Alexandru Ioan Cuza University - Department of Geography and Alexandru Ioan Cuza University - Department of Geography 
Date posted: 
15 Jan 2015

Last revised: 
17 Jan 2015

Accepted Paper Series

14 Incl. Fee Electronic Paper A Modified Production Possibility Frontier for Efficient Forestry Management Under the New Zealand Emissions Trading Scheme 
Australian Journal of Agricultural and Resource Economics, Vol. 59, Issue 1, pp. 116-132, 2015
Todd Hale Viktoria Kahui and Daniel Farhat 
University of Otago - School of Business - Department of Economics , University of Otago - School of Business - Department of Economics and University of Otago - School of Business - Department of Economics 
Date posted: 
09 Jan 2015

Accepted Paper Series

15   Assessing Cleanup Costs and Strategies 
Pauline M. Barrieu Nadine Bellamy and Bernard Sinclair-Desgagne 
London School of Economics , Université d'Évry - Equipe d'Analyse et Probabilites and HEC Montréal 
Date posted: 
17 Jan 2015

working papers series

February 3, 2015 | Permalink | Comments (0)

Monday, February 2, 2015

Water Down Under: A Report from Australia by Barb Cosens: Post 3: Resilience and the Lake Eyre Basin, Australia

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts here and here.]

One of the primary goals of my time in Australia is to apply the lessons from theAdaptive Water Governance Project that looks at six North American Water Basins to a water basin in Australia. That basin will be the Lake Eyre Basin (LEB) and will include its connections to the Great Artesian Basin, and I am assisted in that by substantial research by Australian scientists including a new colleague who has provided a wealth of information, Angela Arthington at Griffith University.  The LEB covers roughly 16% of Australia including much of what we think of as the outback.  It contains two Ramsar wetlands, has been considered for World Heritage listing, and is currently a free flowing river system with 97% of the basin aquatic species thought to be indigenous. The LEB is one of those places in the world uniquely defined by both water and its absence.  Like the basins of the Great Salt, Pyramid, Walker and Mono Lakes in the western United States, the LEB is an internally drained basin.  While these North American internally drained basins are fed by spring runoff from snowmelt, the LEB receives water during major flood events in the wet season of Northern Queensland where rainfall of 400-500 mm (15-20 inches) not only exceeds the less than 100 mm (4 inches) at Lake Eyre, but tends to come in short duration high intensity storms.  In short, the rainforest feeds the desert of Australia.  Major floods, as occurred this year shortly after my arrival, are necessary to get water all the way to Lake Eyre, yet do not occur every year. (see current status of Lake Eyre).  When they do, they can bring up to 35% of the basin together in one mighty river, reconnecting isolated waterholes and providing habitat and breeding grounds for many species of birds.  High variability and extreme flood events drive the biological system of the LEB.  Floods bring an influx of nutrients from channel banks and floodplains resulting in boom in the basin fishery.  Sequential floods over a short time period may have the greatest impact because they fill wetlands first allowing later even moderate floods to reach farther into the basin.  Because groundwater plays a role in contributing to waterholes only within a few locations in the basin, evaporative loss (estimated at greater than 3 m/year (10 feet)) and increasing salinity dominates waterhole hydrology and water quality between flood events.  As floods subside, the larger persistent waterholes serve as refugia for fish and those lucky enough to end up in a waterhole that persists until the next flood serve to re-colonize other areas when the water returns.  An interesting trait of species that are resilient and, in fact, thrive in this variable habitat is to be somewhat indifferent about what they eat.  Like the common Australian phrase no worries -- no access to the floodplain, no worries, I can eat the algal bathtub ring around the waterhole.  Blea -- clearly takes a unique form of life to like this habitat.  Human alteration of the LEB hydrology is currently minimal, but loss of wetlands in neighboring basins such as the Murray-Darling, increase dependence on the LEB by water birds.  Pastoral use of arid lands for livestock, small homesteads and towns use limited amounts of water.  Dams have not yet been built to store flood runoff.  The major tributaries from Queensland were declared wild, however, the Liberal Party in power since 2012 considered eliminating this status to develop the rivers for irrigation.  The basin’s critical natural hydrograph may have received a temporary reprieve in the recent landslide win of the Labor Party in Queensland.  In addition to Queensland, the LEB crosses into the Northern Territories, New South Wales, and has its terminus in South Australia.  An intergovernmental agreement among the four governments agrees to prevent cross-border harm, but leaves internal management and allocation to the states and territories.  The greatest challenge facing the basin is whether to develop or to decide collectively to prioritize protection of this unique habitat and thus make permanent the maintenance of the natural hydrograph.  In addition, basin managers have just begun to consider the connections (or lack thereof) between the Great Artesian Basin and the LEB.  This and the potential threats to groundwater from mining will be the subject of a future blog.  And, as everywhere, climate change may be the ultimate game changer.    

February 2, 2015 | Permalink | Comments (0)

Obama executive order provides new regulations for federal projects in flood areas

The WSJ has the story here.  The executive order, in its entirety, is here, and below:

- - - - - - -

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve the Nation's resilience to current and future flood risk, I hereby direct the following:

Section 1Policy. It is the policy of the United States to improve the resilience of communities and Federal assets against the impacts of flooding. These impacts are anticipated to increase over time due to the effects of climate change and other threats. Losses caused by flooding affect the environment, our economic prosperity, and public health and safety, each of which affects our national security.

The Federal Government must take action, informed by the best-available and actionable science, to improve the Nation's preparedness and resilience against flooding. Executive Order 11988 of May 24, 1977 (Floodplain Management), requires executive departments and agencies (agencies) to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative. The Federal Government has developed processes for evaluating the impacts of Federal actions in or affecting floodplains to implement Executive Order 11988.

As part of a national policy on resilience and risk reduction consistent with my Climate Action Plan, the National Security Council staff coordinated an interagency effort to create a new flood risk reduction standard for federally funded projects. The views of Governors, mayors, and other stakeholders were solicited and considered as efforts were made to establish a new flood risk reduction standard for federally funded projects. The result of these efforts is the Federal Flood Risk Management Standard (Standard), a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains. Incorporating this Standard will ensure that agencies expand management from the current base flood level to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk and ensure that projects funded with taxpayer dollars last as long as intended.

This order establishes the Standard and sets forth a process for further solicitation and consideration of public input, including from Governors, mayors, and other stakeholders, prior to implementation of the Standard.

Sec2Amendments to Executive Order 11988. Executive Order 11988 is amended as follows:

(a) Section 2 is amended by inserting ", to the extent permitted by law" after "as follows".

(b) Section 2(a)(1) is amended by striking "This Determination shall be made according to a Department of Housing and Urban Development (HUD) floodplain map or a more detailed map of an area, if available. If such maps are not available, the agency shall make a determination of the location of the floodplain based on the best-available information. The Water Resources Council shall issue guidance on this information not later than October 1, 1977" and inserting in lieu thereof "To determine whether the action is located in a floodplain, the agency shall use one of the approaches in Section 6(c) of this Order based on the best-available information and the Federal Emergency Management Agency's effective Flood Insurance Rate Map".

(c) Section 2(a)(2) is amended by inserting the following sentence after the first sentence:

"Where possible, an agency shall use natural systems, ecosystem processes, and nature-based approaches when developing alternatives for consideration.".

(d) Section 2(d) is amended by striking "Director" and inserting "Administrator" in lieu thereof.

(e) Section 3(a) is amended by inserting the following sentence after the first sentence:

"The regulations and procedures must also be consistent with the Federal Flood Risk Management Standard (FFRMS).".

(f) Section 3(a) is further amended by inserting "and FFRMS" after "Flood Insurance Program".

(g) Section 3(b) is amended by striking "base flood level" and inserting "elevation of the floodplain as defined in Section 6(c) of this Order" in lieu thereof.

(h) Section 4 is revised to read as follows:

"In addition to any responsibilities under this Order and Sections 102, 202, and 205 of the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4012a, 4106, and 4128), agencies which guarantee, approve, regulate, or insure any financial transaction which is related to an area located in an area subject to the base flood shall, prior to completing action on such transaction, inform any private parties participating in the transaction of the hazards of locating structures in the area subject to the base flood.".

(i) Section 6(c) is amended by striking ", including at a minimum, that area subject to a one percent or greater chance of flooding in any given year" and inserting in lieu thereof:

". The floodplain shall be established using one of the following approaches:

"(1) Unless an exception is made under paragraph (2), the floodplain shall be:

"(i) the elevation and flood hazard area that result from using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis;

"(ii) the elevation and flood hazard area that result from using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;

"(iii) the area subject to flooding by the 0.2 percent annual chance flood; or

"(iv) the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.

"(2) The head of an agency may except an agency action from paragraph (1) where it is in the interest of national security, where the agency action is an emergency action, where application to a Federal facility or structure is demonstrably inappropriate, or where the agency action is a mission-critical requirement related to a national security interest or an emergency action. When an agency action is excepted from paragraph (1) because it is in the interest of national security, it is an emergency action, or it is a mission-critical requirement related to a national security interest or an emergency action, the agency head shall rely on the area of land subject to the base flood".

(j) Section 6 is further amended by adding the following new subsection (d) at the end:

"(d) The term 'critical action' shall mean any activity for which even a slight chance of flooding would be too great.".

(k) Section 8 is revised to read as follows:

"Nothing in this Order shall apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to Sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (42 U.S.C. 5170b and 5192).".

Sec. 3Agency Action. (a) Prior to any action to implement the Standard, additional input from stakeholders shall be solicited and considered. To carry out this process:

(i) the Federal Emergency Management Agency, on behalf of the Mitigation Framework Leadership Group, shall publish for public comment draft amended Floodplain Management Guidelines for Implementing Executive Order 11988 (Guidelines) to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the Standard;

(ii) during the comment period, the Mitigation Framework Leadership Group shall host public meetings with stakeholders to solicit input; and

(iii) after the comment period closes, and based on the comments received on the draft Guidelines during the comment period, in accordance with subsections (a)(i) and (ii) of this section, the Mitigation Framework Leadership Group shall provide recommendations to the Water Resources Council.

(b) After additional input from stakeholders has been solicited and considered as set forth in subsections (a)(i) and (ii) of this section and after consideration of the recommendations made by the Mitigation Framework Leadership Group pursuant to subsection (a)(iii) of this section, the Water Resources Council shall issue amended Guidelines to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the Standard.

(c) To the extent permitted by law, each agency shall, in consultation with the Water Resources Council, Federal Interagency Floodplain Management Task Force, Federal Emergency Management Agency, and Council on Environmental Quality, issue or amend existing regulations and procedures to comply with this order, and update those regulations and procedures as warranted. Within 30 days of the closing of the public comment period for the draft amendments to the Guidelines as described in subsection (a) of this section, each agency shall submit an implementation plan to the National Security Council staff that contains milestones and a timeline for implementation of this order and the Standard, by the agency as it applies to the agency's processes and mission. Agencies shall not issue or amend existing regulations and procedures pursuant to this subsection until after the Water Resources Council has issued amended Guidelines pursuant to subsection (b) of this order.

Sec4Reassessment. (a) The Water Resources Council shall issue any further amendments to the Guidelines as warranted.

(b) The Mitigation Framework Leadership Group in consultation with the Federal Interagency Floodplain Management Task Force shall reassess the Standard annually, after seeking stakeholder input, and provide recommendations to the Water Resources Council to update the Standard if warranted based on accurate and actionable science that takes into account changes to climate and other changes in flood risk. The Water Resources Council shall issue an update to the Standard at least every 5 years.

Sec5General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Water Resources Council shall carry out its responsibilities under this order in consultation with the Mitigation Framework Leadership Group.


January 30, 2015.

February 2, 2015 | Permalink | Comments (0)

Sunday, February 1, 2015

United States District Court Strikes Down Mora County's Fracking Ban

As expected, the United States District Court for the District of New Mexico, struck down Mora County, New Mexico's ban on hydraulic fracturing. In the case styled SWEPI, LP v. Mora County, New Mexico, the court's 199-page opinion on SWEPI's Motion for Partial Judgement on the Pleadings did not rule in SWEPI's favor on all matters, but comprehensively and completely rejected the notion, advanced by the defendants, that local governments could supersede state and federal law, as well as the attack on the established principle that corporations do not hold rights in the United States. Although I have not been able to digest the entire opinion, for obvious reasons, the court delivered a well-reasoned opinion that strikes another blow to the Community Environmental Legal Defense Fund's (CELDF) effort to advance "novel" legal arguments to block a variety of Locally Undesirable Land Uses (LULUs).

CELDF advances "Rights-Based" ordinances that assert the rights of local governments to override state and federal law. The group also opposes Dillon's Rule by advancing an incorrect understanding of Home Rule. For a more thorough and nuanced understanding of Dillon's Rule and Home Rule, see my monograph, written for the Brookings Institute.

In brief, the court granted the Motion in part and denied it in part, and invalidated the Ordinance.  SWEPI, LP has standing to bring each of its claims, because it has suffered an injury in fact. Because the Mora County has already enacted the Ordinance, andbecause SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP‟s claims are ripe, except for its claim under the Takings Clause. Because SWEPI, LP has not sought just compensation through a state inverse condemnation action, its takings claim is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it could bring independent claims, through 42 U.S.C. § 1983, under the constitutional provisions that it asserts trumps the Ordinance. Additionally, the Ordinance violates the Supremacy Clause, because it conflicts with federal law. The Ordinance does not, however, violate SWEPI, LP‟s substantive due-process rights or the Equal Protection Clause, because the Defendants had a legitimate state interest for enacting the Ordinance. The Ordinance violates the First Amendment by chilling protected First Amendment conduct. Because the Defendants lack the authority to enforce zoning laws on New Mexico state lands, they may not enforce the Ordinance on state lands. Also, because there is room for concurrent jurisdiction between state and local law, New Mexico state law does not preempt the entire oil-and-gas production field. The Ordinance conflicts, however,with state law by prohibiting activities that state law permits: the production and extraction of oil and gas. Finally, the invalid provisions are not severable from the valid provisions, making the Ordinance, in its entirety, invalid.

The court, therefore, concurred with my assertion, in "Local Regulation of Hydraulic Fracturing",  117 W.Va. L. Rev 593 (2014), that a ban is distinguishable from regulation of an activity. New York remains the outlier in this regard. Also, as argued in that article, the court reaffirms that local governments hold concurrent jurisdiction with states to regulate hydraulic fracturing, but that local regulatory authority falls short of a ban. My article lists other tools, such as impact fees and reasonable setbacks, that are appropriate for local government land use regulation.

The court's rejection of a provision in CELDF's ordinance that purports to prohibit challenges to the ordinance, and which the court repeated from an earlier ruling in the SWEPI case, bears repeating hear as well:

The Ordinance, thus, appears to state that no one can challenge it, or any other
Mora County ordinance, as long as the ordinance concerns the health, safety, or
welfare of its residents. See Ordinance § 5.6. The Intervenor-Applicants‟
argument is that SWEPI, LP, cannot challenge the Ordinance‟s constitutionality,
because the Ordinance deprives SWEPI, LP, of its constitutional rights. If this
argument has validity, it would signal the end of all civil rights that the Constitution
protects. A county could pass an unconstitutional ordinance, but then say that
anyone who challenged the ordinance lacks constitutional rights to support the
challenge. The county could enforce its unconstitutional ordinance free of
constitutional restrictions, because no one could challenge the validity of the
ordinance. The consequences of such an outcome could be devastating to the
Union as the Nation has known it since the Civil War. Some counties could
prohibit speech on certain viewpoints. Others could deny basic rights to members
of certain racial ethnicities. Still others could prohibit religious practices; others
could require participation in religious services. The Constitution would be
applied in a cookie-cutter fashion across the United States with such inconsistency
from place-to-place that it would cease to be a Constitution of the United States at

SWEPI, LP v. Mora County (page 133), citing SWEPI, LP v. Mora Cnty., 2014 WL 6983288, at *48.

Rights-based ordinances are being passed across the country to attempt to ban land application of biosolids, hydraulic fracturing and other LULUs. In addition, some communities are using rights-based ordinances to promote "food sovereignty". The latest ruling in SWEPI, LP v. Mora County provides more evidence that this approach is not only wrong, but can prove to be devastating to the enacting localities. The fact that many of these localities are poor, meaning that they must turn to CELDF instead of costly, but well-qualified, consultants, exacerbates environmental justice concerns. 

Meanwhile, Conestoga Township, PA recently rejected a rights-based ordinance. One supervisor offered an eloquent rationale for his rejection of the ordinance. More local governments should follow the Conestoga example.


February 1, 2015 in Environmental Justice, Impact Fees, NIMBY, Oil & Gas, Zoning | Permalink | Comments (0)

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