Monday, September 8, 2014

Does New Plan to Protect Long Island Sound Sufficiently Prioritize Land Use?

Today, 20 years after approval of the original Comprehensive Conservation and Management Plan, the Long Island Sound Study released a draft updated CCMP. The Long Island Sound Study, co-sponsored by the EPA and the states of Connecticut and New York, is a partnership of federal, state, and local agencies, universities, businesses, and environmental and community groups. According to an EPA press release, the draft Plan emphasizes the principles of sustainability, climate change resiliency, environmental justice and ecosystem-based management.

Recognizing the significance of land use to wetland and watershed protection, the draft Plan highlights the need for

  • Integration of transportation planning, conservation of energy and water, resiliency to climate change, and pollution control policies;
  • Smart growth and low impact development to minimize the environmental impacts of new and existing development;
  • Meeting numerous ecosystem-level targets such as increasing riparian buffers and open spaces; and,
  • Fully involving and responding to the needs of underserved communities.

The draft Plan describes the benefits of these investments in economic terms, explaining that they will provide substantial returns for the regional economy. 

"The financial value of goods and services provided to the region's economy by Long Island Sound Basin's natural systems ranges between $17 billion and $36.6 billion annually. Treated as a capital asset, the value of these natural systems, calculated using a standard 4% discount rate with a lifespan of 100 years, is $690 billion to $1.3 trillion (Kocian et.al., 2014). Unlike built systems that depreciate, however, natural assets often accumulate value over time, particularly if they are protected and restored. In addition, an estimated 191,000 direct and indirect jobs in the region result from that the healthy function of these natural systems, and the associated stewardship work."

With respect to implementation and land use, the draft Plan identifies as "Implementation Actions"

  • Providing technical guidance for incorporating Low Impact Development/Green Infrastructure into development and redevelopment projects and through zoning and planning changes;
  • Reducing the amount of impervious cover that discharges directly into waterbodies;
  • Remediating brownfields;
  • Tracking implementation and effectiveness of approved watershed plans by local municipalities;
  • Promoting establishment and protection of riparian corridors and wetland buffers at the municipal level through development of local ordinances and promoting permanent land protection; and,
  • Increasing land protection efforts by municipalities and land protection organizations that permanently protect wetlands and riparian areas and buffers.

Notably, however, these Implementation Actions are not identified as "Priority Implementation Actions." Of course, prioritizing of implementation actions is where the rubber hits the road, so to speak. Given that EPA and the LISS are currently accepting comments on the draft updated Plan, those of us concerned with NE region watershed management should take a close look at the draft Plan, with particular attention to the Implementation Actions and their designation -- or lack thereof -- as "Priority." A copy of the draft Comprehensive Conservation and Management Plan is available at the Long Island Sound Study website at http://longislandsoundstudy.net/Planupdate.

Public meetings on the draft plan will be held

  • September 16, 1:00 to 3:00pm, in Westbury, NY at the Yes Community Center
  • September 16, 6:00 to 8:00pm, in the Bronx, NY at Rocking The Boat
  • September 17, 2:30 to 4:30pm, in New Haven, CT at Southern Connecticut State University

Public comments on the plan will be accepted via email and post until Saturday, November 8, 2014. Emailed comments should be sent to contact@watervisionllc.com. Mailed comments should be sent to:

EPA Long Island Sound Office

Stamford Government Center

888 Washington Blvd.

Stamford, CT 06904-2152

Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (sadams-schoen@tourolaw.edu, (631)761-7137).

September 8, 2014 in Beaches, Climate, Coastal Regulation, Environmental Justice, New York, Smart Growth, Sustainability, Water, Wetlands | Permalink | Comments (0)

Saturday, September 6, 2014

"Big Box" Costco agrees to cut greenhouse gas refrigerant emissions nationwide

EPA describes this week's settlement between the United States and Costco as indicative of a more aggressive policy by the federal government to use the Clean Air Act to prosecute the largest GHG emitters, including grocery stores -- a continuing shift in federal priorities that will be of interest to state and local government law practitioners and scholars, as well as those of us who focus on the intersection of local land use law and climate change.

In a settlement announced on Wednesday by the DOJ and EPA, Costco agreed to cut its emissions of GHGs from refrigeration equipment at more than half of its stores nationwide. Costco will also pay $335,000 in penalties for CAA violations and improve refrigerant management at 274 stores at an estimated cost of $2 million over the next three years.

Sam Hirsch, acting assistant attorney general for the Justice Department's Environment and Natural Resources Division, responded to the settlement, saying

"Industry needs to lead the way in abandoning harmful chemicals in favor of using and developing greener, environmentally friendly alternatives to protect our health and our climate."

EPA and DOJ announced that the measures required by the settlement are expected to reduce Costco’s GHG emissions by the equivalent of approximately 30,000 metric tons of carbon dioxide per year. The GHG at issue in the settlement is actually hydrochlorofluorocarbon (from leaks of the refrigerant R-22), which is a more potent GHG than carbon dioxide.

Some may question whether the settlement requires enough of Costco, the nation's second largest retailer, given annual revenues of over $100 billion (in 2013, as reported by EPA).  

The proposed settlement is subject to a 30-day public comment period and final court approval.

Read the proposed settlement and related documents here.

By Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (sadams-schoen@tourolaw.edu, (631)761-7137).

September 6, 2014 in Climate, Environmental Law, Federal Government, Sustainability | Permalink | Comments (0)

Tuesday, August 13, 2013

Blumm & Paulsen on the Public Trust in Wildlife

Michael C. Blum (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife, Utah Law Review (2013).  The abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Matt Festa

August 13, 2013 in California, Environmentalism, History, Property Theory, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 6, 2013

Unusual Reading in Buffalo: From John Birch to Glenn Beck

In summer, I like to put aside an hour or so each work day to read various articles and books that I have stumbled across during the busy semester but lacked time to review. Today, the top of my stacks were an article from The New American and a book by Glenn Beck. It was really just coincidence that these two hit the top of my piles today,  but it has made for a surreal afternoon.

First up is an article from The New American (the publication of the John Birch Society) by Tom DeWeese, entitled Conservation Easements and the Urge to Rule. You know an article is gonna be good when the first sentence mentions the Green Mafia. DeWeese's piece argues that conservation easements are the biggest threat to small family farmers out there. I don't want to spend too much time on his article, because it is just so chock full of problems and errors that it would take too long. He conflates conservation easements and zoning law and seems to rest everything on one case study whose facts are unclear in his piece. My favorite line though is where he compares land trusts to commodity traders buying and selling conservation easements at a significant profit. That sentence on page 2 is where he really lost any credibility he might have had with me. While not an adherent of the John BIrch Society, I have been a vocal critic of the uses of conservation easements. It is always surprising to me when I see them attacked from the right. In many ways, they embody fundamental conservative ideals of promoting and protecting private property rights. Instead of saying landowners can freely enter into any contract regarding their land that they like (a clear libertarian approach), DeWeese seems to be suggesting that any limitation on property rights (even voluntary ones) should not be permitted. Without giving too much credence to DeWeese's writing on this, I am just generally befuddled by the lack of consistency in the property rights movement.

I wish I could also share an interview with Becky Norton Dunlop of the Heritage Foundation on Fox News from February 2010 where she amusingly asserts conservation easements are akin to eminent domain, but the clip no longer appears available.

After zooming through that little article, I picked up Agenda 21 by Glenn Beck. Wow is this a crazy book. Now I don't have cable tv (and would unlikely be tuning into FoxNews if I did), so I have a general understanding of who Glenn Beck is but haven't really seen much more than clips. This may explain why I had no idea what I was in for. I was looking for a book to give me the conservative take on Agenda 21 conspiracy. I gave a talk at the Western New York Land Conservancy earlier this summer, and the Conservancy chose not to advertise the talk in the Buffalo News for fear of Agenda 21 protesters. I am super a bit embarrassed to admit that I was unfamiliar with the conservative Agenda 21 battle cry. My take on Agenda 21 thus far is that it is pretty toothless. Lots of big ideas with little action. So I was pretty surprised to hear that some radical right groups appear afraid of it. Clearly they must fear what it symbolizes rather than what it actually does. Enter Glenn Beck. Someone told me that Glenn Beck wrote a book about Agenda 21 and it is a fast read. What that person failed to mention is that it is a 1984-esque sci fi novel set in a future where Agenda 21 has led to a dystopia. Wanna hear my secret? I kinda love it. It is completely ridiculous, of course, but a great beach read ... if you were willing to let people see you reading it in public.

Jessica Owley

 

 

 

 

August 6, 2013 in Beaches, Books, Conservation Easements, Eminent Domain, Land Trust, Planning, Property Rights, Sustainability, Zoning | Permalink | Comments (2) | TrackBack (0)

Friday, July 19, 2013

Wiseman on Urban Energy

Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013.  The abstract:

The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.

Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.  

Matt Festa

July 19, 2013 in Clean Energy, Environmental Law, NIMBY, Oil & Gas, Planning, Property Rights, Scholarship, Sustainability, Texas, Urbanism, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Hardberger on Groundwater in Texas Courts & Legislature

Amy Hardberger (St. Mary's) has posted World's Worst Game of Telephone: Attempting to Understand the Conversation between Texas's Legislature and Courts on Groundwater, forthcoming in the Texas Environmental Law Review.  The abstract:

Groundwater is a critical component of Texas water resources. Currently, groundwater accounts for 60% of all water withdrawn in the state. Historically, the largest groundwater user was the agricultural sector; however, Texas cities are also increasingly reliant on these water sources. State water demands are projected to increase 22% in the next fifty years. Many of these demands will be in the groundwater sector. In addition to increasing demand, periodic and sometimes severe droughts challenge an already stressed system. Texas’s ability to provide sufficient resources depends in large part on their effective management. 

This paper evaluates the Day decision through the lens of past court decisions and legislation in an effort to understand why the court ruled as it did. Part II introduces Texas’s groundwater resources, current uses of that water, and present concerns regarding sustainability. Part III chronicles the line of cases that established capture as the common law rule in Texas. Part IV traces the history of groundwater legislation after courts established rule of capture. This legislation created a regulatory overlay on the common law rule of capture through localized groundwater conservation districts and the statewide planning process. Part V describes the process through which the Edwards Aquifer Authority came into existence and why it is different from other groundwater districts in the state in that its strict pumping cap immediately raised property rights concerns. Part VI explains how groundwater litigation shifted from right of capture limitations to questions of when ownership vests. This change was a product of increased pressure on groundwater resources caused by additional regulations and growing population demands. 

Finally, Part VII presents three hypotheses regarding why the court came to its decision in the Day case despite the case law history. The first theory is that delineation of property interests is an issue reserved for courts’ authority. Another alternative is that the holding in Day was a result of a statewide shift towards the protection of private property rights above other concerns. The final proposed alternative is that the Day holding was actually an effort to define the property right in such a way as to encourage more regulation or at least limit takings claims through the expansive of correlative rights to groundwater.

Interesting and important--Texas is a huge state with a growing economy and population and an energy boom, and water is going to be a critical issue in the immediate and long-term future.  

Matt Festa

July 17, 2013 in Caselaw, Environmentalism, Local Government, Oil & Gas, Planning, Property Rights, Scholarship, State Government, Sustainability, Texas, Water | Permalink | Comments (0) | TrackBack (0)

Schindler on Banning Lawns

Sarah Schindler (Maine) has posted Banning Lawns, forthcoming in the George Washington Law Review (2014).  The abstract:

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.

Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.

In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

Prof. Schindler has been working on this project and presented it at ALPS previously-- it will serve as a foundational article on the debate that is going to happen (whether or not you knew it) on the future of the American Lawn!

Matt Festa

July 17, 2013 in Climate, Environmentalism, History, Local Government, Planning, Politics, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

Burger on the Last, Last Frontier

Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013.  The abstract:

Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.

Matt Festa 

July 15, 2013 in Climate, Comparative Land Use, Environmental Law, Environmentalism, History, Oil & Gas, Politics, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 9, 2013

Professor's Corner on Koontz

This month's ABA Real Property "Professors' Corner" teleconference will focus on Koontz, the end-of-Term exactions that is one of the most significant Supreme Court property-rights cases in recent years.  (Jessie Owley has discussed it here, and Tim Mulvaney and others have weighed in around the net).  This Professor's Corner session should be a good one with several leading scholars participating.  Here's the announcement:

Professors’ Corner:  Wednesday, July 10, 2013:  Koontz v. St. John’s River Water Management District:  A Significant Victory for Property Rights?

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, July 10, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent.  Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i. 

For those that haven’t already seen it, here’s a link to the opinion:

http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf

Please join us Wednesday for this great program!

Matt Festa

July 9, 2013 in Caselaw, Conferences, Conservation Easements, Constitutional Law, Environmental Law, Federal Government, Property Rights, Scholarship, Supreme Court, Sustainability, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

Ruhl on Ecosystem Services and Federal Public Lands

J.B. Ruhl (Vanderbilt) has posted Ecosystem Services and Federal Public Lands: Start-Up Policy Questions and Research Needs, Duke Environmental Law & Policy Forum, 2010.  The abstract: 

This Essay, based on a presentation at Duke Law School’s 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services and why it is worth considering using the ecosystem services concept in public land policy. Part II proposes several key research paths that must be addressed before federal lands can be effectively managed for ecosystem service flows. Part III bears down on the different roles federal lands might play in promoting or participating in markets for ecosystem services.

Matt Festa

June 10, 2013 in Environmental Law, Federal Government, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Thursday, April 11, 2013

Talking Energy at GW

Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.

My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.

I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.

- Jessie Owley

April 11, 2013 in Agriculture, California, Clean Energy, Climate, Comparative Land Use, Conferences, Planning, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 10, 2013

Kansas Outlaws Sustainability

I have been very excited about a project that co-blogger Stephen Miller and I have been a part of that looks at sustainability in the context of climate change. In fact, our recent compilation of essays on the subject have just been published by ELR (look for the book on this topic next summer). So I have been thinking a lot about what sustainability means and what we can do to achieve it. Sometimes, I think perhaps sustainability isn't the answer as the phrase as lost meaning when folks seem to use it to just label something they consider to be "good for the environment." One thing I hadn't considered was just passing a law mandating sustainability. Politicians in Kansas, however, seem to have been contemplating the power of law to dictate sustainability rules. House Bill No. 2366 currently before the Kansas state legislature would make it illegal to use “public funds to promote or implement sustainable development." Frankly with the trouble surrounding just trying to define what should be considered "sustainable development," I am not sure how meaningful such a law would be -- put gotta appluad tease Kansas for trying. As a professor at a public school, I find the provision restricting the teaching of sustainability to be especially worrisome [no public funding can be used for "materials prepared or presented as part of a class, course, curriculum or instructional material"].

Next thing you know, states will be outlawing climate change.

- Jessie Owley

h/t Katy Kuh

April 10, 2013 in Sustainability | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Owen on Taking Groundwater

Dave Owen (Maine) has posted Taking Groundwater.  The abstract:

In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.

This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.

The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.

An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.

Matt Festa

March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Nolon on Shifting Paradigms in Environmental and Land Use Law and Sustainable Development

John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013).  The abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.

Matt Festa

February 20, 2013 in Environmental Law, Local Government, Planning, Scholarship, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, November 23, 2012

Arnold and Gunderson on Adaptive Law

Tony Arnold (Louisville) sends word that he has co-authored a chapter with Lance Gunderson (Emory--Environmental Studies) called Adaptive Law, forthcoming in the book Resilience and Law, Craig R. Allen & Ahjond S. Garmestani, eds., Columbia University Press, 2013.  The abstract:

This book chapter proposes a bold sweeping set of characteristics of "adaptive law": features of the legal system that promote the resilience and adaptive capacity of both social systems and ecosystems. Law, particularly U.S. law, has been characterized as ill-suited to management of natural resources and the environment for resilience and sustainability. The maladaptive features of U.S. law include narrow systemic goals, mononcentric, unimodal, and fragmented structure, inflexible methods, and rational, linear, legal-centralist processes. This book chapter proposes four fundamental features of an adaptive legal system: 1) multiplicty of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist proceses with feedback loops and accountability. It then discusses these four features in the context of several socio-ecological issues and identifies needs for future study and development of adaptive law, particularly in light of panarchy theory about how complex, adaptive, interconnected systems change over time.

As many land use lawyers already know, Prof. Arnold is one of the leading scholars in establishing the emerging area of adaptive law; this collaboration with Prof. Gunderson looks to be a very helpful starting point for comparing ecosystems and social systems with respect to adaptation to changing circumstances.  

Matt Festa

November 23, 2012 in Books, Climate, Environmental Law, Planning, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Thursday, October 11, 2012

Find out which street corner produces the most CO2.

Resarchers from Arizona State have created a program that maps CO2 in cities. What is fascinating about this project is that they can map it down to the level of individual blocks and buildings. While this program is only currently focused on urban areas, global CO2 maps (and particularly maps of rural areas) could be pivotal in any programs related to carbon emissions. It could enable us to identify the heaviest producers and also perhaps assist in sequestration programs. They even made a cool video showing how it works. What a great tool for local governments.

Here is the citation and abstract:

Kevin R. Gurney, Igor Razlivanov, Yang Song, Yuyu Zhou, Bedrich Benes, & Michel Abdul-Massih, Quantification of Fossil Fuel CO2 Emissions on the Building/Street Scale for a Large U.S. City, Envtl Sci. & Tech. (August 15, 2012)

In order to advance the scientific understanding of carbon exchange with the land surface, build an effective carbon monitoring system, and contribute to quantitatively based U.S. climate change policy interests, fine spatial and temporal quantification of fossil fuel CO2 emissions, the primary greenhouse gas, is essential. Called the “Hestia Project”, this research effort is the first to use bottom-up methods to quantify all fossil fuel CO2 emissions down to the scale of individual buildings, road segments, and industrial/electricity production facilities on an hourly basis for an entire urban landscape. Here, we describe the methods used to quantify the on-site fossil fuel CO2 emissions across the city of Indianapolis, IN. This effort combines a series of data sets and simulation tools such as a building energy simulation model, traffic data, power production reporting, and local air pollution reporting. The system is general enough to be applied to any large U.S. city and holds tremendous potential as a key component of a carbon-monitoring system in addition to enabling efficient greenhouse gas mitigation and planning. We compare the natural gas component of our fossil fuel CO2 emissions estimate to consumption data provided by the local gas utility. At the zip code level, we achieve a bias-adjusted Pearson r correlation value of 0.92 (p < 0.001).

- Jessie Owley

October 11, 2012 in Climate, Downtown, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, October 4, 2012

Osofsky on Suburban Climate Change Efforts

Hari M. Osofsky (Minnesota) has posted Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks, forthcoming in the Cornell Journal of Law & Public Policy.  The abstract:

This Article provides a novel analysis of the capacity of suburbs to play a constructive role in addressing climate change. Small suburban cities represent the majority of metropolitan populations and emissions; encouraging their mitigation efforts, in addition to those of large center cities, is critical. In contrast to the conventional critique of suburbs as an undifferentiated group of sprawling emitters, the Article analyzes pathways for different types of small, nimble, suburban governments to learn from other localities and find cost-effective approaches to reducing emissions. It intertwines scholarship on (1) cities, suburbs, and climate change, (2) the complex demography of suburbs, (3) the role of climate change networks in transnational governance, and (4) more inclusive multi-level climate change governance to describe the limits of the current discourse on suburbs and climate change and to propose a new model for encouraging more suburban action. Using the Twin Cities metropolitan region as an initial case example, the Article considers what steps different types of leader suburbs are taking and how they are participating in voluntary multi-level climate change and sustainability networks. It argues that, especially in the absence of top-down mandates requiring cities to mitigate their emissions, these voluntary networks play an important role in fostering local action and connecting that action to international climate change treaties. It proposes that these networks could have a greater impact, however, through strategies that reflect the differences among types of suburban cities and foster more cross-network interaction.

Matt Festa

October 4, 2012 in Climate, Environmental Law, Local Government, Scholarship, Suburbs, Sustainability | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Hirokawa on Urban Forests as Green Infrastructure

Keith Hirokawa (Albany) has posted his latest interesting piece, Urban Forests as Green Infrastructure, a chapter from his book with Patricia Salkin GREENING LOCAL GOVERNMENT: LEGAL STRATEGIES FOR PROMOTING SUSTAINABILITY, EFFICIENCY, AND FISCAL SAVINGS, p. 257, Keith H. Hirokawa and Patricia Salkin, eds., American Bar Association, 2012.  The abstract:

Urban forests capture air and water pollutants as they provide shade, habitat, and social value. The health and character of urban forests are determined by the priorities that communities place on them, the local regulations that direct land use choices, and the extent to which local governments address resource shortages through zoning, resource planning, and resource regulation. Local governments can plan and regulate urban forests to benefit (economically, socially, and environmentally) from the services that trees can provide to communities. This essay explores the role of urban forests in the local provision of local green infrastructure and the ways that local governments capture of the benefits of urban forests by planning and implementing tree protections.

Matt Festa

September 18, 2012 in Books, Environmental Law, Environmentalism, Local Government, Planning, Scholarship, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, September 6, 2012

Salkin on Small Scale Renewable Energy and Local Land Use Regulation

Patricia Salkin (Touro Law Center) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, Journal of Land Use & Environmental Law No. 27 (2012).  The abstract:

This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.

Matt Festa

September 6, 2012 in Clean Energy, Environmental Law, Finance, Local Government, Property, Scholarship, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 22, 2012

Climate & Energy Law Symposium at USD

The University of San Diego School of Law will host the Fourth Annual Climate & Energy Law Symposium on Friday, Nov. 9, 2012.  This year's title is Law in a Distributed Energy Future.  Here is the symposium overview:

The University of San Diego School of Law's fourth annual Climate and Energy Law Symposium will examine emerging law and policy approaches to encourage and accommodate distributed energy solutions. Historically, electricity has been generated by large power plants located far from consumers and delivered via long transmission lines. While that model remains largely intact, a gradual shift is occurring toward more localized energy production.

The symposium will bring together legal and policy experts from across the country to address a variety of key issues including the latest developments in the rules that govern the electricity grid change to incorporate distributed generation, possibilities for generating energy at the neighborhood and community levels, the legal and policy innovations at the federal, state and local levels that are most needed to usher in a distributed energy future.

Keynote addresses will be given by Commissioner Carla Peterman of the California Energy Commission, and Ken Alex, senior policy advisor to California Governor Jerry Brown and director of the Office of Planning and Research.  The program and registration info are at the website.  

August 22, 2012 in California, Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Scholarship, Sustainability, Wind Energy | Permalink | Comments (1) | TrackBack (0)