Saturday, April 18, 2015

Michael Gerrard on Climate Change and Land Use Law

Michael Gerrard (Columbia) gave Vermont Law's Williams Lecture on April 9 speaking about Climate Change and Land Use Law.   Watch it here.

April 18, 2015 | Permalink | Comments (0)

Friday, April 17, 2015

Touro Law hosts First Annual Conference of the Land Use & Sustainable Development Law Institute

I am late on blogging this, but I wanted to offer congratulations to Sarah Adams-Schoen and the new Land Use & Sustainable Development Law Institute at Touro, which held its first held its first conference yesterday.  The line-up is below.  I heard through the grapevine it was a great success.


Thursday, April 16, 2015
9:00 am - 7:00 pm
Touro Law Center
Central Islip, NY
6 CLE credits (Professional Practice)
7.25 AICP-CM credits (including 1.75 law credits; certification pending
Space is limited. To register, please click here.  
Click here to view program/conference brochure. 
Join local, state and national leaders, land use and municipal law practitioners, planners, legal scholars and community members as we address the formidable challenge of moving from community resiliency planning to implementation. Topics include the newly enacted Community Risk & Resiliency Act, model resiliency codes, the confluence of smart growth and resiliency, legal hurdles to living shores, the role of LWRPs, qualification for the NFIP Community Rating System, and mapping and other practical tools.
Conference Agenda

9:00 am   Welcome
               Dean Patricia Salkin
9:10 am   Assessing the Risks to the Region: Climatology & Long Island
               Daniel Bader, Research Analyst at Columbia University’s Center for Climate Systems Research
10:00 am  Morning Keynote
               Kate Dineen, Managing Director, NY Rising Community Reconstruction Program, NY Governor’s Office of Storm Recovery
10:30 am  Coffee Break
10:45 am  Putting the Regulatory Pieces Together: the Community Risk & Resiliency Act, Comprehensive Plans, 
               LWRPs, SEQRA and local code amendments
               Mark Lowery, NYS Department of Environmental Conservation
               Kari Gathen, NYS Department of State
               Panel Commentator Sarah Adams-Schoen, Director of the Institute on Land Use & Sustainable Development Law, 
               Touro Law Center
12:00 pm  Lunchtime Keynote
                Michael Gerrard, Director of the Sabin Center for Climate Change Law, Columbia Law School
1:30 pm   Resilience is SmartGrowth: Regional Best Practices
               Paul Beyer, NYS DOS Director of Smart Growth Planning
               Jonathan Halfon, FEMA Deputy Field Coordinator, Community Planning and Capacity Building
               Patricia Bourne, City of Long Beach Econ. Devel. Director
               Eric Alexander, Director, Vision Long Island
               Panel Commentator Joseph A. Siegel (EPA Region 2 Senior Attorney) 
2:50 pm   Living Shorelines: Science and Legal Hurdles 
               Dr. Henry Bokuniewicz, Stony Brook University School of Marine & Atmospheric Sciences
               Jay Tanski, New York Sea Grant
               Pamela R. Esterman, Sive Paget & Risel, P.C. 
4:00 pm    Afternoon Break
4:10 pm    Practical Tools Breakout Sessions
               Decreasing NFIP Premiums Under the Community Rating System
               Bill Nechamen, NYS DEC, Chief, Floodplain Manager
               Crystal Tramunti, FEMA CRS Manager for EPA Region 2
               Jonathan Botos, Certified Floodplain Manager, Town of East Hampton
               New Resilience Mapping Tools
               Jeff Herter, New York State DOS, Department of Planning & Development
               Stephen Lloyd, Senior Spatial Analyst - GIS Manager, The Nature Conservancy of Long Island
               Amanda Stevens, SLAMM Project Manager, NYSERDA
7:00 pm    Reception

April 17, 2015 | Permalink | Comments (0)

Thursday, April 16, 2015

Abstracts for 6th Annual Colloquium on Environmental Scholarship due May 1

From the folks at Vermont Law:

The deadline for submitting abstracts for the Sixth Annual Colloquium on Environmental Scholarship is rapidly approaching: May 1, 2015.   The Colloquium will take place on October 3, and I'm excited to share that our keynote speaker will be Professor Holly Doremus, who is the James H. House and Hiram H. Hurd Professor of Environmental Regulation; the Co-Director of the Center for Law, Energy & the Environment; and the Director of the Environmental Law Program at U.C. Berkeley School of Law.

Professor Doremus brings a strong background in life sciences and a commitment to interdisciplinary teaching and scholarship to her work at Berkeley Law.  She is a leading scholar in the field of environmental law;  eight of her articles have been selected for reprinting in the Land Use and Environment Law Review. Her recent publications include Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics (Island Press, 2008) (with A. Dan Tarlock); Scientific and Political Integrity in Environmental Policy, Texas Law Review (forthcoming); Can the Clean Water Act Succeed as an Ecosystem Protection Law?, George Washington Journal of Energy & Environmental Law (forthcoming); and In Honor of Joe Sax:  A Grateful Appreciation, Vermont Law Review (forthcoming 2015).  

If you have any questions about the event, or about the submission process, please don't hesitate to email me or Courtney Collins (  

April 16, 2015 | Permalink | Comments (0)

Space and the City - Special edition of The Economist

Yesterday, I blogged about an article in the April 4, 2015 edition of The Economist.  The whole edition, entited "Space and the city:  The high cost of wasting land," is chock-ful of wonderfully researched discussions of land use issues.  In particular, I'd recommend the lead article, "Space and the city."  Since The Economist is behind a pay-wall, I am listing the abstracts of several articles I enjoyed below.  It might be easiest, though, to just buy it on your iPad.



Space and the city; Urban land

The Economist415.8932 (Apr 4, 2015): 11.
Land is not really scarce. What drives prices skyward is a collision between rampant demand and limited supply in the great metropolises like London, Mumbai and New York. In the past ten years real prices in Hong Kong have risen by 150%. Residential property in Mayfair, in central London, can go for as much as L55,000 ($82,000) per square metre. A square mile of Manhattan residential property costs $16.5 billion. Even in these great cities the scarcity is artificial. Regulatory limits on the height and density of buildings constrain supply and inflate prices. The costs of this misfiring property market are huge, mainly because of their effects on individuals. High housing prices force workers towards cheaper but less productive places. Lifting all the barriers to urban growth in America could raise the country's GDP by between 6.5% and 13.5%, or by about $1 trillion-2 trillion. Two long-run trends have led to this fractured market. One is the revival of the city as the central cog in the global economic machine. Another trend is the proliferation of green belts and rules on zoning. Zoning codes were conceived as a way to balance the social good of a growing, productive city and the private costs that growth sometimes imposes. But land-use rules have evolved into something more pernicious: a mechanism through which landowners are handed both unwarranted windfalls and the means to prevent others from exercising control over their property. Policymakers should focus on two things. First, they should ensure that city-planning decisions are made from the top down. Second, governments should impose higher taxes on the value of land.


Not so special; Special economic zones

The Economist415.8932 (Apr 4, 2015): 14.
Now everyone seems to be an admirer of "special economic zones" (SEZs) that offer a combination of tax-and-tariff incentives, streamlined customs procedures and less regulation. Three out of every four countries have at least one. The world now counts about 4,300 SEZs, and more are being added all the time. Fans of SEZs can point to several success stories, none bigger than China's zone near Hong Kong, set up in 1980 and since dubbed "the Miracle of Shenzhen". The craze for SEZs suggests that governments too often see them as an easy win: make an announcement, set aside some land, offer tax breaks, and - hey presto! - deprived regions or struggling industries are healed. If only it were that easy. Popular as they are, SEZs are often flops.

The present past; The South

The Economist415.8932 (Apr 4, 2015): 25-26.
For something that ended 150 years ago on April 9, America's civil war is strangely newsworthy. The war has created a divide that has yet to disappear. For all the economic dynamism of the South, which over the past few decades has almost caught up with the rest of the country economically, it remains a region apart, from the bedroom to the ballot box. If you know whether a state was part of the Confederacy, it is possible to make a reasonably accurate guess about where it stands on a range of seemingly unconnected matters, from party politics to gay marriage. Does race explain the persistence of difference? This may have been true in the 1960s and 1970s, when the Republicans energetically wooed southern white Democrats who were outraged by Lyndon Johnson's civil-rights laws. But it no longer fits. Religion is a better explanation of southern exceptionalism. The civil war divided most of America's Protestant sects, says Mark Noll of the University of Notre Dame.



April 16, 2015 | Permalink | Comments (0)

Wednesday, April 15, 2015

Land Value Tax Redux

It's tax day.  And when you think of land use and taxes, you have to think of Henry George. Interestingly, several weeks ago The Economist ran an article reevaluating the concept of George's land-value tax.  Here is the article, and here are the first few paragraphs:

LAND prices mainly reflect location: farmers may till the soil, or drain it, but most increases in land’s value comes from the activity of other people. Nobody builds skyscrapers or shopping malls in the wilderness. Landowners, in other words, enjoy unearned income from the benefits bestowed by good transport links, and proximity to customers, suppliers and other businesses. Once they have bought their land, they keep this money. 

But why not tax it? That simple but revolutionary idea has deep roots. David Ricardo termed unearned income from land as a pernicious anomaly: “that portion of the produce of the earth which is paid to the landlord for the use of the original and indestructible powers of the soil”.

His best-known follower was Henry George, perhaps the only tax theorist in history whose beliefs have become the object of almost cult-like devotion. One of his fans invented the game now known as Monopoly, to exemplify the evils of untaxed rent. In a book called “Progress and Poverty”, published in 1879, George argued that land-value levies should replace all other taxation, leaving labour and capital to flourish freely, and thus ending unemployment, poverty, inflation and inequality.

His modern adherents rarely go that far, but land-value taxation (they prefer to call it a location fee) does have many theoretical virtues. . . . 

Rest of the article here.

April 15, 2015 | Permalink | Comments (0)

Tuesday, April 14, 2015

USDOJ HUD housing enforcement attorney position

A good job for a houser...from the ABA listserv.


Trial Attorney

04/10/2015 04:35 PM EDT


Civil Rights Division (CRT)
Housing and Civil Enforcement Section
Washington, DC

Application Deadline: May 1, 2015

This is a reimbursable detail opportunity not to exceed 1 year. The detail may be extended if all parties are in agreement.

Responsibilities and Opportunity Offered: The responsibilities for the detailee selected under this announcement will include: (1) conducting investigations to assess possible violations of the civil rights statutes mentioned above, including conducting legal and factual research, interviewing witnesses, analyzing data and evidence, and making recommendations as to whether to bring enforcement litigation; (2) handling litigation (both pattern or practice and individual matters referred by the Department of Housing and Urban Development (HUD) or other agencies) to redress violations of federal civil rights laws, including preparing legal briefs and memoranda, preparing and responding to discovery requests, conducting extensive document review, identifying and working with expert witnesses, preparing witnesses and participating in depositions, and developing and presenting the government's case in federal court; (3) preparing for and participating in settlement negotiations and mediation on behalf of the Department, 4) monitoring including preparing and negotiating the terms of proposed consent decrees; (and enforcing compliance with judgments and consent decrees; (5) recommending and reviewing private litigation for intervention or amicus participation; (6) conducting outreach to civil rights organizations, state and local governments, industry, and other stakeholders; (7) analyzing and preparing responses to inquiries from the public, testimony, legislative proposals and other written materials; and (8) coordinating as necessary in the execution of the above duties with United States Attorneys' Offices, HUD and other partner agencies.

April 14, 2015 | Permalink | Comments (0)

Lots of Land Use Law Panels at APA Seattle


For those heading to the American Planning Association conference in Seattle this weekend, it appears there will be a lot of great land use law panels there.  Here are some I saw from the conference brochure.


Saturday, April 18

CM  | 1.25
9:00 a.m. - 10:15 a.m.

A Field Day for Planning Agritourism

What zoning and building-code standards are needed to ensure agritourism activities are appropriate and safe?

9:00 a.m. - 10:15 a.m.

Evolution of Washington's Growth Management Law

Learn about APA Washington’s advocacy to meet today’s emerging challenges.

CM  | 2.75 
CM  | 1.50
L | 1.50
10:30 a.m. - 12:00 p.m.

Enabling Rural County Zoning

See a proposal for a system with a 100-year planning horizon and transferrable development rights.

CM  | 1.25
1:00 p.m. - 2:15 p.m.

Effectively Translating Master Plans into Zoning

How can zoning be used to implement planning most effectively? See examples from five communities.

CM  | 1.25
1:00 p.m. - 2:15 p.m.

Street Graphics and the Law, 4th Edition

This new APA Planning Advisory Service Report presents an innovative approach to regulating on-premise signs.

CM  | 4
1:00 p.m. - 5:00 p.m.

How to Write a Zoning Code

Explore the skills, approaches, and strategies needed to write a zoning or development code.

CM  | 1.25
2:30 p.m. - 3:45 p.m.

Zoning for Bikeability

Learn how to use zoning and other regulatory tools to create safe, convenient bicycle infrastructure networks.

CM  | 1.25
4:00 p.m. - 5:15 p.m.

ADA Compliance from Planning to Implementation

Learn how ADA compliance programs can help jurisdictions document and correct pedestrian barriers.

CM  | 1.25
4:00 p.m. - 5:15 p.m.

Maintaining and Improving Zoning Codes

Zoning codes need constant maintenance. Look at key issues, and methodologies for addressing them.

CM  | 1.25
L | 1.25
4:00 p.m. - 5:15 p.m.

What’s Fair in Fair Housing

Ensure your local land-use regulations don't conflict with federal fair housing law.

Sunday, April 19
CM  | 1.25
10:45 a.m. - 12:00 p.m.

Lessons Learned from Form-Based Codes 

Learn how to craft form-based codes with clear outcomes — and post-adoption challenges — in mind.

CM  | 1.25
1:00 p.m. - 2:15 p.m.

Land-Use Mediation, Policy, and Practice

Planners and mediators discuss how their professions overlap and benefit each other.

CM  | 1.25
1:00 p.m. - 2:15 p.m.

Leaving Behind 1950s Housing Codes

Learn how innovative towns and cities are expanding housing choices in existing neighborhoods.

CM  | 1.25
L | 1.25
1:00 p.m. - 2:15 p.m.

Urban Agriculture and the Law

Gain insight into how to overcome common legal obstacles to permitting urban agriculture.

CM  | 1.25
2:30 p.m. - 3:45 p.m.

Integrating Public Health into Planning Review

See how integrating public health rounds out land-use decision making and local comprehensive plans.

CM  | 1.25
4:00 p.m. - 5:15 p.m.

Green Infrastructure Zoning

Planners share tips and techniques for making green infrastructure the first choice for stormwater management.

CM  | 1.50
L | 1.50
4:00 p.m. - 5:30 p.m.

Protecting Local Environments and Natural Resources

Explore how planners and lawyers can work together to achieve balanced growth and development.

CM  | 1.25
5:30 p.m. - 6:45 p.m.

Tying Affordability to Upzoning

Local jurisdictions are linking rezoning with affordable housing. Review lessons learned from “inclusionary upzoning.”

CM  | 1.25
5:30 p.m. - 6:45 p.m.

Zoning Code Reforms and Physical Activity

Review findings from a national study of how community-level zoning code reforms affect physical activity.

6:45 p.m. - 8:15 p.m.

Planning and Law Division Business Meeting

Monday, April 20
CM  | 1.25
7:30 a.m. - 8:45 a.m.

Vitality and Opportunity in Old Neighborhoods

Explore how preserving older, smaller buildings advances walkability in historic neighborhoods.

CM  | 1.25
7:30 a.m. - 8:45 a.m.

Transit-Oriented Redevelopment and Form-Based Codes

Learn how form-based codes can allow block-by-block implementation of transit-oriented regulations in underperforming urban centers.

1:45 p.m. - 2:45 p.m.

Local Implementation of State Wildlife Plans

See a GIS model created to identify valuable conservation areas in five North Carolina counties.

1:45 p.m. - 2:45 p.m.

Walkability Analysis for Transportation Hubs

This study analyzes potential walkability surrounding  transit-oriented development in a growing Texas community.

1:45 p.m. - 2:45 p.m.

Progressive Zoning and Active Living

Are communities that adopt code reforms more likely to foster environments that encourage active living?

2:15 p.m. - 2:45 p.m.

Smart 3D Zoning Visualizations Help to Design Better Cities

Sponsored by: Esri

Learn about a smart zoning tool that builds upon Esri CityEngine and ArcGIS Online. Sponsored by: Esri

CM  | 2.25
2:15 p.m. - 5:45 p.m.

Trails, TOCs, and Tech

Tour three interrelated projects that highlight neighborhood connectivity in the highly walkable city of Kirkland.  Transportation: Motorcoach, walking.

CM  | 1.25
L | 1.25
2:45 p.m. - 4:00 p.m.

Content-Neutral Sign Regulation After Reed v. Gilbert

Content neutrality is a land mine for local sign ordinances. Get an update.

CM  | 1.25
4:15 p.m. - 5:30 p.m.

Home Grown:  Wineries, Distilleries, and Marijuana

Examine legal and land-use trends and practices for regulating wineries, distilleries, and marijuana.

Tuesday, April 21
CM  | 1.25

Sunday, April 19

9:30 a.m. - 10:45 a.m.

Mastering the Challenges of Student Housing

Student housing needs are growing. Learn how zoning and development regulations can mitigate unwanted impacts.

CM  | 2
9:45 a.m. - 11:45 a.m.

Seattle Public Open Space Evaluation Encore Workshop

Tour downtown open spaces developed through zoning incentives to gain floor area for buildings.  Transportation: Walking.

CM  | 1.25
11:00 a.m. - 12:15 p.m.

Its a Nitty-Gritty Route to Resilience

Glean pointers to help prepare for any type of disaster as well as longer-term resilience.

CM  | 1.25
11:00 a.m. - 12:15 p.m.

Fixing the PUD problem

Discuss the problems with PUD zoning and hear how three cities adopted a more flexible, resilient zoning strategy.









April 14, 2015 | Permalink | Comments (0)

Monday, April 13, 2015

A Field Day for Planning Agritourism @ APA Seattle

For those heading to the APA conference in Seattle this weekend, I wanted to make a hearty recommendation that you attend the session below on agritourism.  (I was initially supposed to speak on the panel, but have had to bough out because of some personal timing conflicts.)  It is going to be a great event, and Tricia Nilsson will be discussing some of the work that my Clinic has done with her on agritourism.  

I guarantee it will be well worth your time and, I hear, Tricia will be raffling off some wine from some of the region's premier wineries!  


A Field Day for Planning Agritourism

CM | 1.25
Saturday, April 18, 2015
9 a.m. - 10:15 a.m.

Agritourism — such as farm weddings, you-pick-it operations, and farm stays — is becoming a popular way for farmers to increase their incomes. But it has come afoul of local zoning and building codes. What zoning and building-code standards are needed to ensure agritourism activities are appropriate and safe?

You’ll learn about:

• How to analyze Census of Agriculture data to recognize opportunities for agritourism

• Factors to consider when promoting tourism in rural areas 

• The importance of coordination of building and zoning regulations


Patricia Nilsson, AICP

Canyon County Dev. Services

Patricia Nilsson has been a public sector planner in Virginia, Pennsylvania, and Idaho for more than 30 years. She has extensive experience in long-range planning, and has been a project manager for comprehensive plan and zoning ordinance updates, a multi-million dollar open space program, and transportation plans. She is currently the Director of Development Services for Canyon County, Idaho. She is a past president of the Idaho Planning Association (predecessor of the Idaho chapter of the American Planning Association) and a member of the American Institute of Certified Planners. Ms. Nilsson received a bachelor’s in Political Science from Virginia Tech.

Scott Mendoza

Weber County

Having an interest in both physical and social sciences, Scott Mendoza chose to study geography and land use planning at Weber State University (in Ogden, Utah) where he was given the opportunity to combine elements of both science disciplines into one degree. This field of study has enabled Scott to hold employment positions in the private sector as well as city, county, and federal levels of government. Past relevant employers consist of a private land survey firm, the US Forest Service, Ogden City Neighborhood Development, Davis County Engineering, and the Weber County Surveyor’s Office. Currently, Scott works as a principal planner for Weber County where he primarily focuses on long range planning issues and code development. Scott enjoys the creative outlet and challenge that comes with integrating new and progressive ideas into land use codes. Recently, Weber County was recognized by the Utah Chapter of the American Planning Association for its efforts in crafting and adopting an innovative mountain resort development code and an easily adaptable agri-tourism code.

April 13, 2015 | Permalink | Comments (0)

Saturday, April 11, 2015

New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent

On April 6, 2015, Arkansas' governor signed into law SB 757, a law that may either end zoning in Arkansas...or not.  On its face, the law is a bludgeon to zoning laws:  it seems at first to require local governments to compensate for a "taking" where a "regulatory program" causes a decrease of "at least 20%" of the fair market value of real property.  Zoning laws are specifically mentioned within the definition of a "regulatory program."

Whether this law is, in fact, a bludgeon to zoning, or a completely meaningless piece of legislation, depends on how you read the second half of the definition of "regulatory program" in 5(B).  The first part of the "regulatory program" definition seems to include almost all aspects of today's zoning laws in its ambit; however, the law then provides that such regulations are only within the law's scope "when the regulatory program is not designed to carry out or protect the adopted plans of a governmental unit that are designed to protect the health, safety, or welfare of the citizens."  Here's my question:  aren't all zoning laws premised on an exercise of the police power (e.g., health, safety, welfare, etc.)?  I think that is a pretty low bar to meet.    

However, the other issue is how (5)(A) relates to (5)(B).  Perhaps the police power limitation only applies to the second part of the definition in (5)(B).  In that case, (5)(A) would provide that "'Regulatory program' means a rule, regulation, law, or ordinance that affects the fair market value of real property."  This more broad definition does not have the exception for police power-enacted laws.  Does the explicit reference in (5)(B) exempting zoning laws premised on the police powers mean that they are also exempted from (5)(A)?

These ambiguities will seemingly make a major difference in whether Arkansas's local governments can continue on with zoning programs.  I am writing this very quickly:  what do others see that I missed?

The full text of the law is at the link above.  Here are the major operative sections of the law:


(a)(1) An owner of real property asserting a taking under this 10 subchapter shall bring a cause of action in circuit court claiming that the implementation of a regulatory program by a governmental unit has permanently reduced by at least twenty percent (20%) the fair market value of the real property.

(2) The reduction in the fair market value of the real property shall be determined by comparing the fair market value of the real property as if the regulatory program is not in effect and the fair market value of the real property determined as if the regulatory program is in effect.

(3) To assert that a taking has occurred, the regulatory program must have been implemented at the time the owner acquired title or after the effective date of this subchapter, whichever is later.  

(4) Upon a preponderance of the evidence, the real property shall be deemed to have been taken for the use of the public.  

(b) A jury shall determine the amount of the difference in fair market value.

A "regulatory program" is defined as follows:

(5)(A) "Regulatory program" means a rule, regulation, law, or ordinance that affects the fair market value of real property.  (B) "Regulatory program" includes without limitation moratoriums on growth, aesthetic or scenic districts, environmental districts, overlay districts, green space ordinances, landscape ordinances, tree ordinances, land use planning programs, and zoning programs by a governmental unit when the regulatory program is not designed to carry out or protect the adopted plans of a governmental unit that are designed to protect the health, safety, or welfare of the citizens.

Many thanks to Celeste Pagano, who sent this my way.

Stephen R. Miller

April 11, 2015 | Permalink | Comments (3)

Friday, April 10, 2015

The Arrival of Man-Made Earthquakes

Rivka Galchen has a nice article in this week's New Yorker on earthquakes resulting from hydraulic fracturing.  Check it out here.

April 10, 2015 | Permalink | Comments (0)

Thursday, April 9, 2015

Idaho passes first-in-nation law preempting local government regulation of Uber

On Monday, Idaho's governor signed  a first-in-the-nation law fully preempting any local government regulation of ride-sharing companies, such as Uber.  This is terrible precedent; no other state has gone anywhere near this kind of override of local control as best I can tell (I welcome corrections, if I'm wrong).  Folks in other states with legislators who better understand the realities of the sharing economy should take note that this is a new tack by Uber, and oppose it.  

This approach confuses a pro-Uber law with a pro-markets law; the primary result of the Idaho law will be to put taxi companies out of business.  That's not choosing "freedom," that's altering the marketplace to favor one company.  

The Idaho law is clear of the new tack to fight regulation by the sharing economy:  move regulation at the state level, then capture the regulator and make it weak.  This move is as old as administrative law itself and should be fought vigorously in other states with more at stake.

Stephen R. Miller

April 9, 2015 | Permalink | Comments (0)

Wednesday, April 8, 2015

Transmission and Transport of Energy in the Western U.S. and Canada: A Law and Policy Road Map

I am delighted to announce that a collection of short essays resulting from the inaugural Idaho A Final 2 Color LogoSymposium on Energy in the West is now available on SSRN and will be published this fall in the Idaho Law Review.  The topic of the Symposium was "Transmission and Transport of Energy in the Western U.S. and Canada: A Law and Policy Road Map," which also forms the common theme for this essay collection.

The collection includes great contributions by KK Duvivier, Troy Rule, Melissa Powers, Sam Kalen, Tara Righetti, Nate Larsen, Nick Lawton, and Amelia Schlusser.  Topics include: building a resilient legal architecture for western energy production; regulating natural gas flaring; transmission planning for wind energy; utilities and rooftop solar; special considerations for western states and the Clean Power Plan; the Clean Power Plan's implications for the western grid; siting renewable energy on public lands; and implications of utility reform in New York and Hawaii for the Northwest.

The 2nd Idaho Symposium on Energy in the West will be held in Spring, 2016.  Watch for event details and more great scholarly contributions for understanding energy in the west!

Stephen R. Miller

April 8, 2015 | Permalink | Comments (0)

Tuesday, March 31, 2015

New Land Use Articles on SSRN

As it is the first of the month, it is time to see what has been posted on SSRN in land use in March.  As always, I run the search on the term "land use" in the period "last month."  I also offer my standard caveat that I realize there are plenty of land use law-related articles I am probably not catching with this search.  Some day I will think of something better.  Till then...

1 Incl. Electronic Paper Revitalizing Dormant Commerce Clause Review for Interstate Coordination Minnesota Law Review, Vol. 100, No. 1 , 2015, Minnesota Legal Studies Research Paper No. 15-07 Alexandra B. Klass  and Jim Rossi  University of Minnesota Law School  and Vanderbilt University - Law School 
2 Incl. Electronic Paper Expropriation and the Socio-Economic Status of Neighbourhoods in Canada: Equal Sharing of the Public Interest Burden? Oñati Socio-Legal Series, Vol. 5, No. 1, 2015, Anneke Smit  Faculty of Law, University of Windsor 
3 Incl. Electronic Paper An Environmental Understanding of the Local Land Use System Environmental Law Reporter, p. 10215, March 2015, John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, ELI Press, 2014 John R. Nolon  Pace University School of Law 
4 Incl. Electronic Paper How to Make America Walkable 42 Real Est. L.J. 512 (Spring 2014), Touro Law Center Legal Studies Research Paper Michael Lewyn  Touro College - Jacob D. Fuchsberg Law Center 
5 Incl. Electronic Paper How Often Do Cities Mandate Smart Growth or Green Building? 43 Real Est. L.J. 211 (Fall 2014), Touro Law Center Legal Studies Research Paper Series Michael Lewyn  Touro College - Jacob D. Fuchsberg Law Center 
6 Incl. Electronic Paper Local Government Lobbying Forthcoming chapter in City Ethics' free e-book "Local Government Ethics Programs." Robert F. Wechsler  City Ethics, Inc. 
7 Incl. Electronic Paper The Conservation versus Production Trade-Off: Does Livestock Intensification Increase Deforestation? The Case of the Brazilian Amazon FEEM Working Paper No. 020.2015 Petterson Molina Vale  London School of Economics & Political Science (LSE) 
8 Incl. Electronic Paper Application of Hazard Based Model for Choice Set Formation of Housing Location Behnam Amini  Imam Khomeini International University 
9 Incl. Electronic Paper Communities’ Perceptions and Knowledge of Ecosystem Services: Evidence from Rural Communities in Nigeria IFPRI Discussion Paper 01418 Wei Zhang  , Edward Kato  , Prapti Bhandary  , Ephraim Nkonya  , Hassan Ishaq Ibrahim  , Mure U. Agbonlahor  and Ibrahim Hussain  International Food Policy Research Institute (IFPRI)  , International Food Policy Research Institute (IFPRI)  , International Food Policy Research Institute (IFPRI)  , International Food Policy Research Institute (IFPRI)  , Federal University, Dutsin - Ma, Katsina State, Nigeria  , Abeokuta Federal University of Agriculture (UNAAB)  and Federal University Dutsin‐Ma 
10 Incl. Electronic Paper Chapter 1: Inclusion by Design, Thinking Beyond a Civil Rights Paradigm - Land Use Law and Disability: Planning and Zoning for Accessible Communities Robin Paul Malloy, Land Use Law and Disability: Planning and Zoning for Accessible Communities, Cambridge University Press, 2015 Robin Paul Malloy  Syracuse University College of Law 
11 Incl. Electronic Paper Land Use Law Update: New York's New Climate Change Resiliency Law 28 Municipal Lawyer 4 (Fall 2014), Touro Law Center Legal Studies Research Paper Series Sarah Adams-Schoen  Touro College - Jacob D. Fuchsberg Law Center 
12 Incl. Electronic Paper Bias in Environmental Agency Decision Making Environmental Law, December 2015, Forthcoming Robert R. Kuehn  Washington University in Saint Louis - School of Law 
13 Incl. Electronic Paper Geographically and Temporally Weighted Likelihood Regression: Exploring the Spatiotemporal Determinants of Land Use Change Douglas H. Wrenn  and Abdoul G. Sam  Pennsylvania State University, Agricultural Economics, Sociology, and Education  and Ohio State University (OSU) 
14 Incl. Electronic Paper Status and Trends in Forests and Forestry Development in Nepal: Major Success and Constraints International Journal of Sciences 2014 (05) Digambar S. Dahal  Sr. Beijing Forestry University, Students 
Date posted: 
15 Incl. Electronic Paper The Social-Ecological Resilience of an Eastern Urban-Suburban Watershed: The Anacostia River Basin Craig Anthony (Tony) Arnold  , Olivia Odom Green  , Daniel DeCaro  , Alexandra Chase  and Jennifer-Grace Ewa  University of Louisville - Brandeis School of Law  , US Environmental Protection Agency - Office of Research and Development, National Risk Management Research Laboratory  , University of Louisville  , University of Louisville  and University of Denver 
16 Incl. Electronic Paper Time is Money: An Empirical Examination of the Effects of Regulatory Delay on Residential Subdivision Development Douglas H. Wrenn  and Elena G. Irwin  Pennsylvania State University, Agricultural Economics, Sociology, and Education  and Ohio State University (OSU) - Department of Agricultural, Environmental & Development Economics 
17 Incl. Electronic Paper Zoning and Land Use Planning: How Real Is Gentrification? 43 Real Est. L.J. 344 (Winter 2014), Touro Law Center Legal Studies Research Paper Series Michael Lewyn  Touro College - Jacob D. Fuchsberg Law Center 
18 Incl. Electronic Paper Confronting Price Endogeneity in a Duration Model of Residential Subdivision Development Douglas H. Wrenn  , H. Allen Klaiber  and  David A. Newburn  Pennsylvania State University, Agricultural Economics, Sociology, and Education  , Ohio State University (OSU) - Department of Agricultural, Environmental & Development Economics  and Texas A&M University (TAMU) - Department of Agricultural Economics 
19 Incl. Electronic Paper The Policy Implementation of Modern Market Land-Use Control in Municipality of Cirebon Bisnis & Birokrasi, Volume 20, Number 3, September 2013 Nina Asterina  and Teguh Kurniawan  House of Representatives of the Republic of Indonesia  and University of Indonesia (UI) 
20   A Property & Economic Approach to Street Gangs Lua K. Yuille  University of Kansas School of Law 
21   Atmospheric Pollution in Rapidly Growing Urban Centers: Spatial Policies and Land Use Patterns Efthymia Kyriakopoulou  and Anastasios Xepapadeas  University of Gothenburg  and Athens University of Economics and Business
22   L'aménagement du territoire (Town and Country Planning) Paris, Les Editions d'Organisation, Collection "Décryptons", 96 p. ISBN 2-7081-17858-0, Gérard-François Dumont  University of Paris 4 Sorbonne 
23   Right Way Wrong Way: The Fading Legal Justification for Telecommunications Infrastructure Rights of Way Benjamin W. Cramer  Pennsylvania State University 
24 Incl. Fee Electronic Paper Why are Urban Travel Times so Stable? Journal of Regional Science, Vol. 55, Issue 2, pp. 230-261, 2015 Alex Anas  SUNY at Buffalo, College of Arts & Sciences, Department of Economics 


March 31, 2015 | Permalink | Comments (0)

Friday, March 27, 2015

What to make of the fierce new debate over the efficacy of California's energy codes?

I recently listened to the Freaknomics podcast, How Efficient is Energy Efficiency?.  Despite feeling relatively up-to-date on energy codes research, I was surprised to hear in that podcast about a recent paper by Arik Levinson  (Georgetown - Economics) that had previously escaped me.  Listen to the podcast here:


 Here is the podcast abstract: 

Arik Levinson is an environmental economist at Georgetown who spent some time as a senior economist for environmental issues with the Council of Economic Advisors (C.E.A.) under President Obama.

“One of my jobs,” he says, “was helping the White House evaluate the environmental policies coming out of the Department of Transportation, the Department of Energy, and the Environmental Protection Agency. And I quickly realized that most of the policies that I was seeing involved energy efficiency.”

So Levinson wanted to know: how efficient is all this energy efficiency? That’s the topic of our latest podcast. . . .

We discuss Levinson’s new working paper “How Much Energy Do Building Energy Codes Really Save? Evidence From California” (and a related Journal of Economic Behavior & Organization paper, called “California Energy Efficiency: Lessons for the Rest of the World, or Not?).

The evidence from California may surprise you: “There is no evidence,” Levinson writes, “that homes constructed since California instituted its building energy codes use less electricity today than homes built before the codes came into effect.”

That was a show-stopper for me:  anyone who has done even the most basic work on energy efficiency knows that Calfifornia's energy codes of the Seventies are routinely held up as a model for emulation.  But here is the abstract for Levinson's paper, California energy efficiency: Lessons for the rest of the world, or not?:  

Since the 1970s California’s residential electricity consumption per capita has stopped increasing while other states’ electricity use continued to grow steadily. What accounts for California’s apparent savings? Some credit the strict energy efficiency standards for buildings and appliances enacted by California in the mid-1970s. They argue that the growing gap between California and other states demonstrates that other states and countries could replicate California’s gains by adopting California-style regulations, and that California should build on its own success by tightening its standards further. Skeptics might point to three long-run trends that differentiate California’s electricity demand from other states: (1) shifting of the U.S. population toward warmer climates of the South and West; (2) relatively small income elasticity of energy demand in California’s temperate climate; and (3) evolving differences between the demographics of households in California and other states. Today, differences in climate and demographics account for almost 90 percent of the difference between California’s and other states’ residential electricity use. That difference thus provides no lessons for other states or countries considering adopting or tightening their own energy efficiency standards.

What is to be made of this?  What are its implications of this for those of us interested in the legal aspects of energy efficiency?  

I have found responses to Levinson's study by several groups, including NRDCEnergy Innovation, and ACEEE.  In a broad Westlaw search of all legal secondary sources, however, I turned up no hits, which makes me believe that either the legal academy has yet to address the debate or, alternatively, the slow pace of legal publishing means that responses are still in the publication process.  Does anyone out there have a link to other good responses to the Levinson paper?  Are there any good analyses of the legal issues this might implicate if Levinson is right and, alas, if he is wrong?  

Stephen R. Miller



March 27, 2015 | Permalink | Comments (0)

Tuesday, March 24, 2015

The W&L Top 100 Law Review Rankings and the Land Use Law Scholar

I have had reason this spring to revisit--more often than I'd like--the relative rankings of law reviews.  It seems these days that many people rely upon the Washington & Lee Law Review Rankings as an indicator of what constitutes a "good" journal placement.  

In reviewing the W&L Top 100 journals, however, I have noticed that the presence of secondary journals in that top ranking seems to inure to benefit of those writing in tech law, international law, business law, and law and policy, as those are the subject areas of the secondary journals that proliferate in the W&L Top 100.  By my count, in the 2013 W&L 100--the latest data available--31 law reviews (those with an asterisk in the first column below) are aimed at topics unlikely to accept land use law-related articles.  That means that, for land use law scholars, the W&L Top 100 is really the W&L Top 69 (those journals without an asterisk).  I also did the same analysis on the 2003 W&L Top 100; at that time, 24 journals were non-land use law journals (see below).  This seems to indicate that the prevalence of secondary journals in the Top 100 has been common for some time; I have not, however, crunched the data on all ten years of rankings available at the W&L site.

Of course, there are plenty of places where land use law scholars can place their articles and, in the era of digital reproduction, placement seems to matter less and less.  I am curious, though, what others make of this, if anything.  Just as this affects land use law scholars, it would seemingly affect other scholars, such as criminal law scholars, that would not have the opportunity to place in many of the W&L Top 100 law reviews.

2013 W&L Top 100 (31 non-land use journals marked with asterisks (**) in the first column)

  Rank   Journal
  1   Stanford Law Review
  2   Harvard Law Review
  3   Columbia Law Review
  4 The Yale Law Journal
  5   University of Pennsylvania Law Review
  6 The Georgetown Law Journal
  7   UCLA Law Review
  8   Michigan Law Review
  9   California Law Review
  10   Virginia Law Review
  11   Minnesota Law Review
  12   Texas Law Review
  13   New York University Law Review
  14   Fordham Law Review
  15   Cornell Law Review
  16   Notre Dame Law Review
  17   Northwestern University Law Review
  18   Iowa Law Review
  19   Duke Law Journal
  20   Vanderbilt Law Review
  21   William and Mary Law Review
  22   Boston University Law Review
  23 The University of Chicago Law Review
  24   University of Illinois Law Review
  25   Boston College Law Review
  26   Cardozo Law Review
  27   North Carolina Law Review
  28   U.C. Davis Law Review
  29   Indiana Law Journal
  30   Southern California Law Review
  31 The George Washington Law Review
  32   Hastings Law Journal
  33   Emory Law Journal
** 34   Harvard Journal of Law & Technology
  35   Florida Law Review
  36   Connecticut Law Review
  37   Wisconsin Law Review
  38   Washington University Law Review
  39   Supreme Court Review
** 40   Harvard International Law Journal
** 41   Harvard Civil Rights-Civil Liberties Law Review
  42   Wake Forest Law Review
  43   American University Law Review
  44   Washington Law Review
** 45   Harvard Journal on Legislation
  46   Arizona Law Review
  47   Ohio State Law Journal
  48   Lewis & Clark Law Review
** 49   Harvard Journal of Law & Public Policy
  50   Washington and Lee Law Review
** 51   Virginia Journal of International Law
  52 The Harvard Environmental Law Review
** 53   University of Pennsylvania Journal of Constitutional Law
** 54   Yale Journal on Regulation
  55   Alabama Law Review
** 55   Harvard Business Law Review
  57   University of Cincinnati Law Review
  58   University of Colorado Law Review
  59   Michigan Journal of Environmental and Administrative Law
** 60 The American Journal of Comparative Law
  60   George Mason Law Review
  62   Tulane Law Review
** 63   Berkeley Technology Law Journal
** 63 The Journal of Criminal Law and Criminology
  65   DePaul Law Review
** 66 The Journal of Corporation Law
** 67   Journal of Legal Analysis
  67   Michigan State Law Review
** 69   American Journal of International Law
  70   Houston Law Review
  71   Florida State University Law Review
** 72   Yale Journal of Law & Technology
** 73   Harvard Law & Policy Review
  74   Georgia Law Review
** 75 The Yale Journal of International Law
** 76   Harvard Journal of Law & Gender
  77   Hofstra Law Review
  78   American Business Law Journal
  79   Buffalo Law Review
** 80   Chicago Journal of International Law
** 80 The Georgetown Journal of Legal Ethics
  82   Akron Law Review
  82   Pepperdine Law Review
  84   Maryland Law Review
  85   Fordham Urban Law Journal
** 86   William & Mary Bill of Rights Journal
  87   Brigham Young University Law Review
** 87   Constitutional Commentary
  89   Brooklyn Law Review
** 89   Yale Law & Policy Review
** 91   Cornell Journal of Law and Public Policy
** 92   Ohio State Journal of Criminal Law
** 93 The Journal of Legal Studies
** 93   University of Michigan Journal of Law Reform
  95   Utah Law Review
  96   Missouri Law Review
** 97   Administrative Law Review
  98   University of Chicago Legal Forum
** 99   Michigan Journal of International Law
  100   Tennessee Law Review

2003 W&L Top 100 (24 non-land use journals marked with asterisks (**) in the first column)

  Rank   Journal
  1   Harvard Law Review
  2 The Yale Law Journal
  3   Columbia Law Review
  4   Stanford Law Review
** 5   DePaul Business & Commercial Law Journal
  6 The Georgetown Law Journal
  7   California Law Review
  8   New York University Law Review
  9   Cornell Law Review
  10   Virginia Law Review
  11   Michigan Law Review
  12   UCLA Law Review
  13   Supreme Court Review
  14   University of Pennsylvania Law Review
  15 The University of Chicago Law Review
  16   Texas Law Review
  17   Minnesota Law Review
  18   Fordham Law Review
  19   Northwestern University Law Review
  20   Vanderbilt Law Review
  21   Duke Law Journal
  22   North Carolina Law Review
  23   Southern California Law Review
  24   William and Mary Law Review
  25   Notre Dame Law Review
  26   Indiana Law Journal
  26   Iowa Law Review
  28   Arizona Law Review
** 29   Harvard Civil Rights-Civil Liberties Law Review
  29   Ohio State Law Journal
** 31 The Journal of Legal Studies
  32   Emory Law Journal
  33   University of Colorado Law Review
  34   University of Illinois Law Review
  35   Wisconsin Law Review
  36   Connecticut Law Review
** 37   American Journal of International Law
  38   American University Law Review
  39   Boston University Law Review
  40   Wake Forest Law Review
  41   U.C. Davis Law Review
** 42 The Business Lawyer
** 43   Harvard International Law Journal
  44   Hastings Law Journal
  45   Washington University Law Review
  46   Cardozo Law Review
  47   Tulane Law Review
** 48   American Criminal Law Review
  49   Houston Law Review
** 50   Berkeley Technology Law Journal
  51   Villanova Law Review
  52 The George Washington Law Review
  52   Oregon Law Review
  54   Buffalo Law Review
  55   Albany Law Review
** 55   Virginia Journal of International Law
  57   Georgia Law Review
  58   University of Pittsburgh Law Review
  59   Chicago-Kent Law Review
  59 The Harvard Environmental Law Review
  61   Washington and Lee Law Review
  62   Maryland Law Review
** 63   Harvard Journal of Law & Technology
** 64   Harvard Journal on Legislation
  65   Washington Law Review
  66   DePaul Law Review
  67   Florida State University Law Review
  68   Columbia Human Rights Law Review
  69   Boston College Law Review
  70   University of Cincinnati Law Review
** 71   American Journal of Law & Medicine
  72   Arizona State Law Journal
** 72   University of Pennsylvania Journal of Constitutional Law
  74   Case Western Reserve Law Review
** 75   Vanderbilt Journal of Transnational Law
  76   SMU Law Review
  77   Brooklyn Law Review
  77   University of Miami Law Review
** 79   Michigan Journal of International Law
** 80 The Journal of Criminal Law and Criminology
  80   Loyola of Los Angeles Law Review
** 80   Minnesota Journal of International Law
  83   Hofstra Law Review
  84   Brigham Young University Law Review
  85   University of Chicago Legal Forum
** 86   Yale Journal on Regulation
** 87 The Georgetown Journal of Legal Ethics
** 88   Yale Law & Policy Review
  89   Rutgers Law Review
  90   South Carolina Law Review
  90   William & Mary Bill of Rights Journal
  92   San Diego Law Review
** 93   Columbia Journal of Transnational Law
  93   Fordham Urban Law Journal
** 95 The American Journal of Comparative Law
** 96   Harvard Journal of Law & Public Policy
  97   University of Richmond Law Review
** 98   Cornell International Law Journal
  98   Tennessee Law Review
  100   South Texas Law Review


March 24, 2015 | Permalink | Comments (0)

CFP: 2015 Future of Places Conference (lead-in to Habitat III) in Stockholm: Deadline of April 15

Call for papers

Following the 2014 Future of Places conference in Buenos Aires, we are pleased to announce the next conference in the series.

The 2015 Future of Places conference will serve as a lead-in to Habitat III and its theme “Toward a New Urban Agenda.”  Conference-goers will have an opportunity to shape that agenda by helping to define the critical issues for action,particularly around the agenda of public space, place and placemaking. The Future of Places conference recognises the central importance of public spaces, not only as amenities, but as dynamic environments that are shaped by the people themselves – not abstract space but human places, shaped actively by “placemaking.”  These public places, along with their adjacent private and semi-private places, form a critical connective network within the city — profoundly influencing, and potentially limiting, social, economic and personal development.


In line with the public space agenda for Habitat III, the theme of the academic session is “Growing Public Spaces: Shaping the Agenda for Science, Policy, Practice, and Civil Society.”  We recognise that it is not only the quantity of public space as an amenity that must be increased, but the quality of human places and placemaking that must be supported and enhanced, by governments, researchers, practitioners and NGOs – and ultimately, by the people themselves.

We invite your submission of a paper abstract of no more than 300 words for initial consideration.  If invited, you will be asked to complete a paper of between 3,000 and 6,000 words for the conference proceedings, accompanied by an oral presentation (with slides if desired) of 15 minutes.

It is recommended (but not required) that submissions be focused on one of the four following areas:

SCIENCE: Advancing New Theoretical Insights and Opportunities for Growing Public Space.

POLICY: Removing Barriers and Inserting Reforms to Promote a Stronger Public Realm.

PRACTICE: Advancing New Tools and Models for Public Space and Placemaking.

CIVIL SOCIETY: Organising Groups and Strategies to Achieve the Needed Changes.


We invite you to consider the following sub-themes, among others:

– Places and placemaking – Urban spatial networks and networks of place – Economic spillovers and social dynamics – Innovation districts and placemaking – Ingredients of successful urban places – Urban capacity and capability – Diversity and equity – Multi-modal mobility – Street design for health – Emerging tools and toolkits – Implementation strategies for short-term impacts – Priorities for research, education, policy and practice – Streets as drivers of urban prosperity – Placemaking in small towns and rural settings



Invited speakers include:

Harrison Fraker Jan Gehl Bruce Katz Phil Hadfield Arif Hassan Bruce Katz Jennifer Keesmaat Eva de Klerk Julian Agyeman Vikas Mehta Fran Tonkiss Saskia Sassen Richard Sennett

And others to be announced


Elite Hotel Marina Tower Saltsjöqvarns Kaj 25 131 71 Nacka Stockholm CALL FOR PAPERS

Abstracts will be reviewed by a qualified panel of referees, and selected abstracts will be invited to submit full papers. Abstracts should be no more than 300 words, on one page, including author(s)’ name and contact information at the top of the page. Email submissions to the address below by the dates specified.


Michael Mehaffy, Sustasis Foundation, Portland, Chair, Academic Committee

Tigran Haas, Ph.D., Royal Institute of Technology, SE Fred Kent, President Project for Public Spaces, US Helene Littke, Visiting Scholar, City University Graduate Center, US Ali Madanipour, Ph.D., Newcastle University, UK Stephen Marshall, Ph.D., University College London, UK Paul Murrain, Principal Murrain Urban Design, London, UK Ernesto Philibert-Petit, Ph.D., Tecnologico de Monterrey, MX Elizabeth Plater-Zyberk, Dean Emeritus University of Miami, FL, US Sergio Porta, Ph.D., University of Strathclyde, UK Yodan Rofe, Ph.D., Ben-Gurion University of the Negev, IL Ombretta Romice, Ph.D., University of Strathclyde, UK Nikos Salingaros, Ph.D., University of Texas, US Wolfgang Sonne, Ph.D., Technical University of Dortmund, DE Emily Talen, Ph.D., Arizona State University, US



Call for Papers – Abstracts Due …………. 15 April2015 (extended deadline)

Notification of Selected Abstracts ………  25 April 2015 Invited Papers Due…………………………….. 1 May 2015 Notification of Selection, Revisions…….. 1 June 2015 Final Revised Papers Due…………………… 15 June 2015

Early Registration is open ………………….. 3 Feb 2015 (Use application form on website) Early Registration Ends …………………….. 1 May 2015 Conference date……………………………….. 29 June – 1 July 2015


The conference is free for invited attendees (including those with accepted papers) and includes all meals.  You may apply to attend the conference without a paper by applying at the following website:


Abstracts will be reviewed by a qualified panel of referees. Selected papers will be invited to participate in a second round of peer review toward publication in a conference proceeding volume or partner journal to be announced, in the field of urban design and development.


Future of Places

Project leader Peter Elmlund <> Send your abstract (or paper, if completed) to:

This article is posted under Conference info

March 24, 2015 | Permalink | Comments (0)

Monday, March 23, 2015

Water Down Under: A Report from Australia by Barbara Cosens: Post 7: Conjunctive Management Down Under

[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 hereherehereherehere, and here.]

In both the United States and Australia, the intersection of the development of drilling technology, the conversion of a pump used in the oil field for use in water wells, and the post-World War II availability of rural electricity, led to rapid development of groundwater for irrigation beginning in the 1950’s.  The ability to tap into a steady supply, not (at least in the short term) subject to the seasonal and year-to-year fickle nature of surface water was an arid lands farmer’s dream come true. 

Scientists knew even then of the connection between surface and groundwater, but pre-World War II levels of development did not warrant recognition of that connection in the law.  Unfortunately, the rapid post-war development outpaced the response of our legal systems and today both countries are seeking to manage the impact of groundwater development on surface water use for both economic and environmental purposes. The treatment of ground and surface water as one resource is referred to as conjunctive management and even in those parts of the United States where it has been around on paper for a bit, it can be considered in its infancy in terms of sophistication. 

Although Australia and the United States began with English common law, they have diverged in their subsequent development of the law and thus, in how they are addressing the surface-ground water connection.  The English common law takes the view that a landowner may access and exploit the water beneath their land, even when pumping draws water from beneath neighboring land.  To understand how the United States and Australia have diverged from this approach, it is useful to look at specific applications in New South Wales and in Idaho. 

Australia’s National Water Initiative of 2004 was an agreement among the State, Territorial, and Commonwealth governments to address some of Australia’s pressing water problems.  Among those problems was the massive increase in groundwater use, particularly in response to the millennium drought which spanned the period of 1995-2011.  During this period, farmer’s switched to groundwater, a response to drought similar to that of California’s Central Valley farmers in recent years.  Among the solutions the States and Territories agreed to was a process of defining water access entitlements to eliminate the double counting of available water from a connected source as if surface and ground water were separate pools of water. 

Under the Act, the Commonwealth entered a funding agreement with New South Wales in which the State would impose reductions on groundwater licenses during the process of converting old bore licenses to aquifer access licenses to achieve the goals of water planning.  Massive collaborative planning efforts were undertaken to determine water supplies and relative allocations between consumptive and environmental uses.  Despite reductions of up to 70%, constitutional challenges by water users failed on the basis that water use has always been subject to government authority to regulate, thus nothing was taken from the water user that the government did not already possess. 

The western United States chose a different path and the experience in Idaho serves as a useful example.  Idaho adopted the doctrine of prior appropriation for both surface and ground water and as the late comer on the block, groundwater use is generally junior.  With massive increases in the development of groundwater in Idaho’s Eastern Snake Plain (now the third most productive irrigated agriculture region in the United States), the cumulative effect of pumping began to be apparent to surface water users as early as 1990. Two decades of litigation would be required to sort it out.  Although some efforts at a state funded, planning style approach to augment supplies (rather than reduce use as in Australia), were attempted, in the end Idaho concluded that this was better addressed as a matter of private property.  The state courts narrowed the issues by allowing adjustment of legal principles developed for surface water to account for the differences in the groundwater resources.  Cumulative, not just seasonal, impact would be the basis for identifying harm.  Models, rather than direct evidence, could be used to identify the existence of and estimate the magnitude of a well-to-surface diversion connection.  Given the absence of a 1-1 correlation between groundwater pumped and down gradient surface water impact, well owners could avoid curtailment by providing make up water through a mitigation plan. 

It is far too soon to say whether the planning approach of Australia or private approach of Idaho will have the best results.  The planning approach may miss some of the subtle local differences and thus either over or under curtail water use.  The private approach may ignore long term impacts creating problems down the road.  If I were a betting woman, I would say the two locations are likely to use various settlement and market tools to address the inadequacies of both extremes and will converge on a workable system that lies somewhere in between.  Let’s hope they do it in time.

March 23, 2015 | Permalink | Comments (0)

Friday, March 20, 2015

Interior unveils final rule governing fracking regulations on public lands

NYT has the story here.  Interior press release here.  Final rule here.  From the Interior press release:

Key components of the rule, which will take effect in 90 days include:  

  • Provisions for ensuring the protection of groundwater supplies by requiring a validation of well integrity and strong cement barriers between the wellbore and water zones through which the wellbore passes;
  • Increased transparency by requiring companies to publicly disclose chemicals used in hydraulic fracturing to the Bureau of Land Management through the website FracFocus, within 30 days of completing fracturing operations;
  • Higher standards for interim storage of recovered waste fluids from hydraulic fracturing to mitigate risks to air, water and wildlife;
  • Measures to lower the risk of cross-well contamination with chemicals and fluids used in the fracturing operation, by requiring companies to submit more detailed information on the geology, depth, and location of preexisting wells to afford the BLM an opportunity to better evaluate and manage unique site characteristics.

March 20, 2015 | Permalink | Comments (0)

Updates from Pace Land Use Law Center

New updates from the Pace Land Use Law Center...  

(I'm always happy to post updates from any land use centers, clinics, etc.  I try to re-post major updates when I see them, but I'm sure I miss many, as well.) 


Planning and Zoning for Solar Energy


The Land Use Law Center joins the NY-Sun PV Trainers Network, which is part of the NY-Sun Initiative, a statewide initiative that aims to increase the number of solar electric (also referred to as photovoltaic, or PV) systems across New York State by stimulating the marketplace, so that costs associated with installing solar electric systems for residents and businesses are reduced. As a network partner, the Center is creating resources and workshops to present strategies and best practices for developing a clear, comprehensive, and enforceable solar regulatory framework.



Promoting the Use of Green Infrastructure

On behalf of the City of Newburgh Conservation Advisory Council (CAC), the Center completed a Green Infrastructure Guide.  The Guide directs CAC decision-making, recommending the use of natural processes to address stormwater and air quality impacts that result from development.  The Guide is available by clicking here.

Building Community through Effective
Public Engagement


The Center partnered with the Town of New Castle to lead a public engagement process that identified residents' planning goals, objectives, and vision.  The resulting New Castle Master Planning Public Engagement Report, will inform the Town's new master plan, which the Center will continue to help develop.

Protecting the Environment Through Land Use Law

A new book by Prof. John R. Nolon, "Protecting the Environment Through Land Use Law: Standing Ground", takes a close look at the historic struggle that local governments face balancing land development with natural resource conservation.  For more details and ordering information click here.
Copyright © 2014 Pace Law School, All rights reserved.

Our mailing address is:
Pace Law School
78 North Broadway
White Plains, NY 10603

Add us to your address book

unsubscribe from this list    update subscription preferences 

March 20, 2015 | Permalink | Comments (0)

Tuesday, March 17, 2015

March Madness - Parking Edition

Streetblog is doing a funny spoof of March Madness asking readers to compare the relative "parking madness" of cities across the country.  Today's match pits Tampa versus Waterville; weigh in here.



March 17, 2015 | Permalink | Comments (0)