Friday, September 9, 2011

anti-variance bias

Usually, I don’t think the casebooks I use are biased (at least not in a “Democrat vs. Republican” way) – but every so often I see something that gives me pause. In discussing zoning variances, my Property casebook (Dukeminier) writes that although issuance of zoning variances is reversed more often than denial, “This is not to say that variance administration is policed as closely as it should be.” The book then adds that “Illegal issuance [of variances] is a widespread phenomenon nationwide.”

Assuming for the sake of argument that cities are more lenient in granting variances than black-letter law might suggest, I am not sure that it is necessarily a bad thing. Maybe the zoning ordinance makes no sense, or allowing a minor deviation would be harmless in the situation at issue. But the casebook does not seem to share my point of view.

Why not? Perhaps a bias in favor of government regulation. But more likely, I think, a quite understandable “rule of law” bias in favor of cities following their own rules. The authors seem to think that the rules may be stupid, but as long as they are there they should be followed.

Michael Lewyn

September 9, 2011 in Local Government, Teaching, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, September 8, 2011

Interested in Teaching Environmental Law?

Dan Farber's keeping up a list of environmental law faculty searches on Legal Planet.  Some of them involve specialization in land use.

Jamie Baker Roskie

September 8, 2011 in Environmental Law, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, September 1, 2011

Welcome Michael Lewyn

Lewyn I'm excited to introduce our newest guest-blogger, Michael Lewyn.  Prof. Lewyn is on the faculty of the Touro College Jacob D. Fuschberg Law Center, where he just moved after several years at the Florida Coastal School of Law.  He teaches and writes in the area of property law and land use, specializing in urban and suburban development and sprawl.  He's been a contributor at Planetizen and other places.  You can check out his SSRN page here.  I suspect many of you are familiar with his work, which includes a number of great articles on sprawl and related topics (including my personal favorite: How Overregulation Creates Sprawl (Even in a City Without Zoning).

We're thrilled to have Prof. Lewyn aboard at the Land Use Prof Blog for September.  Welcome!

Matt Festa

September 1, 2011 in Scholarship, Sprawl, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Wisconsin hiring announcement

From Stephanie Tai at the University of Wisconsin:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to: Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

They're doing a general search, but since they reached out to us here at the blog, we can assume that land use applications are welcome!

Matt Festa

August 25, 2011 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, August 22, 2011

Lewis & Clark Clinic Wins Big Victory Against Coal

I'm a bit tardy in getting this out, but over the summer the folks at Lewis & Clark's Pacific Environmental Advocacy Center won a big victory against Portland General Electric, effectively making Oregon a coal free state.  LC law students were integrally involved in this case, making for one of the most fantastic clinical experiences ever (in my opinion).

Read more about it on the LC website. (Full disclosure: If it seems like I'm bursting with price, perhaps it's because I am an LC [undergraduate] alumna.)

Jamie Baker Roskie

August 22, 2011 in Clean Energy, Climate, Environmental Law, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, July 21, 2011

Environmental Law Junior Scholar Listserv

Jessica Owley--one of our outstanding guest bloggers this year and, yes, she is a land use prof--sends word about a new listserv designed especially for junior scholars in environmental law, land use, and natural resources:


Environmental Law Junior Scholar Listserv

There is a new listserv available for pre-tenured faculty in environmental law, natural resources, and land use. This listserv will not duplicate the benefits of other valuable listservs available as it is intended to serve as a safe forum for open and candid dialogue junior scholars.

Beyond a traditional listserv, we will use this list to facilitate paper exchanges among our ranks. Those who choose to participate in the paper exchanges will gain the benefit of two colleagues reading and commenting on their work. Signing onto the listserv does not commit you to the paper exchange program. [If senior scholars are interested in volunteering to comment on a paper or two over the course of the year, please let us know by e-mailing jol at buffalo dot edu.]

To join the listserv, please send the following information to jol at buffalo dot edu
(1) Name
(2) Current Institution
(3) Years Teaching

Looks like a great resource for junior scholars--go ahead and sign up!

Matt Festa

July 21, 2011 in Environmental Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 20, 2011

Owley & Rissman on Distributed Graduate Seminars

Jessica Owley (University at Buffalo School of Law) and Adena Rissman (Wisconsin-Madison, Dept. of Forest & Wildlife Ecology) have posted Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation, forthcoming in the Pace Environmental Law Review (PELR).  The abstract:

Adapting to the many changes associated with climate change is an increasingly important issue and nowhere more so than in efforts to conserve private land. Interdisciplinary distributed graduate seminars conducted in Spring 2011 at six universities investigated whether current land conservation laws and institutions appear up to the task of protecting land in the context of change and avenues for improving the adaptive capacity of such institutions.

Distributed graduate seminars are courses coordinated among multiple universities. They begin with a core of interested faculty who organize graduate students at their universities to collect or analyze dispersed data. This article gives a brief introduction to distributed graduate seminars and then details the experience and insights gained conducting such a seminar for land conservation and climate change. The distributed graduate seminar offers advantages by allowing for the synthesis of diverse data, the integration of multiple disciplinary perspectives, and the person-power enabled by student research. For students, the distributed seminar provides opportunities to engage with a broader academic community, benefit from new perspectives, and contribute in a meaningful way to a large endeavor.

Their seminar is a great idea, and an ambitious way to take advantage of the inherent interdisciplinarity in the land use field.  The paper is part of the forthcoming PELR special issue from the Practically Grounded conference on teaching land use and environmental law.  More to come. 

Matt Festa

July 20, 2011 in Conferences, Conservation Easements, Environmental Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 12, 2011

City Videos

For those of you who like to use video as a teaching tool, check out "The Coolest and Best City Videos" on The Urbanophile blogsite.

Jamie Baker Roskie

July 12, 2011 in Teaching, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

In Memorium: David Getches

The environmental law community is mourning the passing of former Colorado Law dean David Getches. While I never had the pleasure of meeting Dean Getches, it is evident he was deeply loved and respected, as well as very accomplished.  From his faculty bio:

David Getches is the Raphael J. Moses Professor of Natural Resources Law at the University of Colorado School of Law.  He teaches and writes on water law, public land law, environmental law, and Indian law.  Professor Getches has published several books including:  Water Law in a Nutshell (1997); Searching Out the Headwaters: Change and Rediscovery in Western Water Law and Policy, with Bates, MacDonnell and Wilkinson (1993); Controlling Water Use:  The Unfinished Business of Water Quality Control, with MacDonnell and Rice (1991); Water Resource Management, with Tarlock and Corbridge (1993); and Federal Indian Law, with Wilkinson and Williams (1998).  He has written many articles and book chapters that appear in diverse scholarly and popular sources, including recent articles calling for reform of Colorado River governance and criticizing the Supreme Court’s departure from traditional principles in Indian law.

 From 1983-1987, David Getches was Executive Director of the Colorado Department of Natural Resources under Governor Richard D. Lamm.  The department includes ten divisions of state government that deal with parks, wildlife, land, water, and minerals.  While in that post he strongly advocated water conservation, pressed for groundwater law reform, advanced ideas for better cooperative management and control of the Colorado River, urged expansion of the state’s designated wilderness areas, and spoke out on the importance of recreation and wildlife to the state’s economy.

 Mr. Getches was the founding Executive Director of the Native American Rights Fund (NARF).  He developed the staff, funding, and program of this national, nonprofit Indian-interest law firm.  Major cases he litigated include a Northwest Indian fishing rights case (United States v. Washington, also known as “the Boldt decision”) and a case on behalf of Eskimos to establish the North Slope Borough, the largest municipality in the world, which includes the Prudhoe Bay oil fields.  His other cases dealt with water rights, land claims, federal trust responsibilities, environmental issues, education, and civil rights on behalf of Native American clients throughout the West.

His obit also appears in the Huffington Post.

He obviously will be deeply missed.

Jamie Baker Roskie


July 6, 2011 in Environmental Law, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Plagiarism & Other People's Papers

I stay in touch with a recent grad doing land use work. (He has a great climate adaptation blog). He asked how I deal with plagiarism and sent this piece from the New Inquiry on cheating. It's "a dialogue between Teach, an adjunct philosophy instructor at a public university in New York, and Cheat, who has authored over 100 papers for pay." I learned some new red flags to watch out for; such as the correct use of a semicolon.

Teach: In my philosophy class of 36 students I had six instances of plagiarism. I ended up turning them all in to the Committee on Academic Standing.

Cheat: Do you remember how they plagiarized?

T: One is a case of self-plagiarism, in which the third paper was turned in a second time for the fourth paper.

C: In its entirety?

T: In its near entirety. He changed the introduction and the conclusion, but left the body paragraphs the same.

C: So he tricked a search engine, but not a human.

T: In the four other cases, I discovered specific lines that were taken off Internet sites including the Stanford Encyclopedia of Philosophy—at the best, Wikipedia, Yahoo Answers, and some Cambridge professor’s blog.

C: How did you find that? Through a Google search?

T: Well, first I detect it. There are a number of red flags. 


Kat Garvey


June 28, 2011 in Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, June 16, 2011

Service Learning Projects in Land Use Classes: Louisville's Urban Forestry Example

I teach an interdisciplinary Land Use and Planning Law course, which is composed of both law students and graduate students in urban planning.  The course has a heavy skills development focus with students participating in interdisicplinary teams on a simulated board of zoning adjustment hearing on a CUP application for a biofuel plant in a low-income minority neighborhood (based on a real case study) and preparing substantial service-learning reports on complex land-use issues for government agencies and nonprofit organizations.  The students learn a lot by working on real-world problems and having to work in teams.  The projects also pull the students much more deeply into cutting-edge issues than merely reading and discussing cases in the classroom can do (although we do some of that, as well, to prepare them for their projects).

I just blogged on my law school blog about a very cool outcome of one of this past semester's service-learning projects, which I've pasted below:

Law & urban planning students in my Spring 2011 Land Use & Planning Law course prepared an Urban Tree Canopy Plan as a service learning project for the Partnership for a Green City, the Louisville Metro Parks Department, and Community of Trees, an association of government agencies, organizations, and individuals.  This plan and its recommendations will be a base from which Community of Trees develops an "Action Plan for Louisville's Urban Forest."  A meeting to consider my students' recommendations and to select recommendations for near-future action will be held Wednesday, June 22, 2011, at 10:00 a.m. at 415 W. Muhammad Ali Boulevard, Louisville, KY.  The students' Urban Tree Canopy plan can be downloaded at: 

This was one of 3 service learning projects prepared in the Spring 2011 offering of the innovative and interdisciplinary Land Use & Planning Law course at the University of Louisville.

June 16, 2011 in Environmentalism, Local Government, Planning, Smart Growth, Sustainability, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 15, 2011

Land Use Professors & Law School Administration

I have been away from the Land Use Prof blog way too long, because I have been doing a year-long stint as associate dean for academic affairs & faculty development.  My one-year commitment ends in 15 days, and as I wrap things up, I have been thinking about the usefuleness of a background in land use law and planning to those who aspire to go into law school administration.  For example, I know that our land-use colleague at Pepperdine, Shelley Saxer, had at least a couple of very successful runs as associate dean at Pepperdine, and many others in our field have enjoyed success as law school administrators.

I enjoyed the job a whole lot more than I thought I would, because it involved quite a bit of planning and problem-solving, which are skills used quite a lot in the land use field.  If you have that planning and problem-solving itch and your regular fare of teaching and research aren't satisfying that itch, you might find law school administration to be a good fit.

Another aspect of the position was working with and building consensus among a wide range of people with different and often competing interests, goals, and even sometimes values.  It reminded me of the challenges of resolving multi-participant land use conflicts where competing interests and differing visions of a community's future require good interpersonal, negotiation, and even mediation skills.

What I didn't enjoy were the long hours (70 hours of work per week every week) and the necessity of having to make sacrifices in teaching and research in order to have a more balanced and sustainable life.  Land use and related courses are distinctive parts of the law school curriculum, and I felt that the students would be getting short-changed if I were to pull back from the courses I teach, the time I devote to students, and continued innovation in our curriculum.  Likewise, there are just so many important issues arising in land use, I just couldn't imagine putting my research agenda on hold, or even slowing it down, for a few years while I worked with schedules, adjuncts, grievances, workshops, and the like.  The associate dean's job is important to the functioning of the law school and I felt very much valued and appreciated by the law school community for what I did this year.  But in the end, I felt like I could contribute more by returning to teaching, research, and public service in land use, water, property, and the environment.

But I feel certain that there are a number of future associate deans, deans, and maybe even provosts and presidents out there among our land use professor colleagues.  I would be glad to talk with you about administration if you want to know more about what it's like and what it takes.  But most of all, I'm glad to be getting fully back into land use -- and to sharing some posts on the Land Use Prof blog. 

June 15, 2011 in Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, June 2, 2011

New blog trains law students and land use decision-makers

Recently, the Vermont Law School Land Use Clinic launched

This blog has the dual purpose of training our clinicians to write in plain English and providing accessible summaries of key Vermont land use decisions for volunteers and land use professionals.

In Vermont, most land use decisions are made by volunteers, frequently without staff support. In 2010, we conducted a survey of zoning administrators, development review board  members, planning commissioners, applicants and concerned citizens. We wondered if a blog written by law students could be helpful to these folks? The survey results indicated an interest and need for plain English summaries of key municipal land use and state permitting decisions.

We hope to update the blog weekly to summarize important developments in Vermont land use law.

Let us know if you have any suggestions!

Kat Garvey


June 2, 2011 in Local Government, Teaching | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 31, 2011

Introducing Katherine Garvey

To continue our parade of fantastic guest bloggers, we are very pleased to announce that Katherine Garvey Garvey will be joining us for the month of June.  Prof. Garvey is Staff Attorney and Assistant Professor at Vermont Law School's excellent Land Use Clinic.  Here's her bio:

Katherine Garvey is a Staff Attorney and Assistant Professor of Law with the Land Use Clinic. From 2003 to 2006, she worked for EPA, Region VII in the National Agricultural Compliance Assistance Center and with the Office of Pollution Prevention and Toxics. Professor Garvey is also an ISO 14001 Environmental Management Systems Certified Lead Auditor. She developed and audited environmental management systems for military and large agricultural operations. From 2006 to 2008, Professor Garvey worked for the City of Lee's Summit, Missouri as the Environmental Coordinator. She helped the City comply with permitting requirements for their airport and landfill. In addition, she helped the City develop a solid waste management plan, stormwater plan, stream buffer ordinance, and a natural resource inventory map. In 2008, Garvey was chosen as Vermont Law's Land Use Fellow for the Land Use Institute. At the Institute, she supervised student work related to land use legislation, developed training materials for local officials, and performed statutory research for the Institute's land use partners.

Vermont has one of the three land use law clinics in the nation, along with Jamie Roskie's at Georgia (Montana is the third).  We're excited to have Prof. Garvey join us!

Matt Festa

May 31, 2011 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

ABA-RPTE Fellowship

Tanya Marsh from Property Prof Blog asked me to spread the word about a great opportunity for anyone interested in getting involved in the ABA's Real Property section.  It's the ABA-RPTE Fellows program.  Prof. Marsh was a fellow a few years ago, and in her blog post she tells us about the terrific opportunities it provided her to do substantive work and to get to know other leading lawyers in the field.  The application deadline is June 17.  You can get to the application materials at the link or through her informative post here.

Matt Festa

May 31, 2011 in Property, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Sunday, May 15, 2011

Rule Against Perpetuities--Alive and Well

While it's not entirely a land use issue, many of us have had to deal with perpetuities issues in land. 2011-04-05 027  Contrary to what you hear from certain property-haters out there, the Rule Against Perpetuities still affects many property law issues, even if it lurks behind the scenes much of the time.  Some of you may have seen this story going around: Millionaire's heirs get inheritance after 92 yrs; Lumber baron Wellington R. Burt finally parts with his fortune, 21 years after his last grandkid died.  

(AP)  SAGINAW, Mich. — Ninety-two years after his death, Saginaw lumber baron Wellington R. Burt is finally parting with the fortune he withheld from his descendants until 21 years after the death of the last grandchild born in his lifetime.

The estate is now valued at $100 million to $110 million. It will be shared among 12 of his heirs later this month.

According to The Saginaw News, Burt once was among the eight wealthiest Americans. He made millions of dollars in the harvesting of the Saginaw Valley's timber and then another fortune in Minnesota's iron mines. He served as mayor of Saginaw and later as a Michigan state senator.

At 19 years old, Christina Cameron of Lexington, Ky., is the youngest of the 12 and is in line to receive $2.6 million to $2.9 million. . . . Cameron is the great-granddaughter of Marion Landsill. She was the last survivor among Burt's grandchildren who were born in his lifetime. She died Nov. 21, 1989.

Saginaw County Chief Probate Judge Patrick McGraw said the estate is "one of the most complicated research projects" he's faced in his 12-year career in Saginaw.  When McGraw arrived in 1999, the estate had long been a part of courthouse lore.

The Dead Hand got its wish, to the maximum extent allowed under the RAP!  Show this story to your  students the next time you hear that they know a guy who knows a guy who knows a lawyer who says the RAP doesn't have any real-world impact.  While many states have abolished or reformed the rule, property law still remains in the shadow of the ol' lives in being + 21 rule.  Personally, I think it also gets the point across if you wear a Rule Against Perpetuities t-shirt like the one above from my closet, but that may not fit everyone's sense of style.  Thanks to Steve Homer, John Kowalczyk, and Ash Shepherd for the pointer.

Matt Festa

May 15, 2011 in History, Property, Property Theory, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 10, 2011

More on Practically Grounded

Just a quick follow up to Matt's post about the Practically Grounded conference last week.  This was the first time I've been to (or presented at) a conference of this type.  It was so interesting to hear how land use and environmental professors are really engaging their students in experiential and interdisciplinary learning in their doctrinal, clinical, and skills classes.  I learned so much!

It was also a historic moment in that there were three land use clinicians in the same room.  Michelle Bryan Mudd from University of Montana and Kat Garvey from Vermont joined us. There aren't many Land Use Clinics in the country, so I really enjoyed the opportunity to talk with them and get their perspective on running this type of clinic.  Who knows, this might even lead to some inter-state collaboration down the road?

Pace University Law School plans a follow up journal edition to this conference, so that folks who weren't able to attend will be able to read the preceedings.  Hopefully this is also the first of many conferences of its type to come.

Jamie Baker Roskie

May 10, 2011 in Conferences, Environmental Law, New York, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Sunday, May 8, 2011

Practically Grounded Conference on Best Practices in Teaching Land Use

On Thursday Pace Law School hosted the conference Practically Grounded: Best Practices for Skill Building in Teaching Land Use, Environmental, and Sustainable Development Law.  John Nolon and Patricia Salkin organized this event to advance the discussion they started with their recent article Practically Grounded: Convergence of Land Use Law Pedagogy and Best Practices, published in the Journal of Legal Education (2011).  The conference was ably sponsored by the Pace Law School's Land Use Law Center for Sustainable Development and the Kheel Center on the Resolution of Environmental Interest Disputes; and Albany Law School's Government Law Center and the Center for Excellence in Law Teaching. 

The conference brought together a diverse group of people from across disciplines and the legal profession.  Among academics, there were land use and environmental law profs, as one would expect, but also a number of scholars who brought their particular expertise and experience in legal education and the best practices movement.  There was also some great participation from practitioners and students at the event.  A lot of great ideas were shared.  Here's a quick rundown of the presentations:

After the introduction by Profs. Nolon and Salkin, the first panel was an overview discussion of the context of skill and value teaching in law schools and a very helpful discussion of the (much-discussed but less-well-understood) Carnegie Report and Best Practices Report.  Mary Lynch (Albany Law, and also editor of the Best Practices for Legal Education Blog), Jill Gross (Pace), and Vanessa Merton (Pace) conducted this informative discussion along with a humorous role-playing excercise.

The next panel was "Clinics and Values."  Our own co-blogger Jamie Roskie (Georgia) presented "Values as Part of the Clinical Experience," exploring the role of values in student land use clinical work.  Michael Burger (Roger Williams) gave an interesting take on intrapersonal intelligence and advocacy in "Psychological Intelligence as a Lawyering Skill: Integrating Students' Values into Doctrinal Analysis of Environmental Law & Policy."

Panel 3 was "Stakeholders and Role Playing."  Karl Coplan (Pace), in "Teaching Environmental Law Skills Through Interest Group Role-Playing," blew many of us away with how extensively he uses role playing exercises in a capstone environmental law class.  Andrea McArcle (CUNY) spoke about her fascinating newly-designed course in "Learning in Context: Land Use and Community Lawyering."

The next panel was on "Research and Writing."  Dwight Merriam (Vermont Law; Robinson & Cole LLP) presented "Out of the Nest: Getting Students Published" from his intensive land use writing seminar.  Yours truly (South Texas) then spoke about "Research and Writing as Best Practices in Teaching Land Use."

The fifth panel featured two of our recent guest-bloggers on "Science and Other Disciplines."  Jessica Owley (Buffalo) discussed an innovative project called "Distributed Graduate Seminars," where six universities have cooperated to teach an interdisciplinary course on conservation easements.  Jon Rosenbloom (Drake) showed how he engaged his students in real local policy issues in "Now We're Cooking! Adding Practical Application to the Recipe for Teaching Sustainability."

Finally, we heard about "Problem Solving."  Michael Lewyn (Florida Coastal) discussed his approach to livening up a seminar course by getting students to see practical applications in "Experiential Learning through Field Trips and Seminars."  Keith Hirokawa (Albany) closed with "Teaching Law from the Dirt," which discussed his use of and class visit to a real local development project.

The papers were all very interesting, and will be published online in a forthcoming issue of the Pace Law Review.

This was a really enjoyable conference and, I think, a very important one too.  It was absolutely fascinating to learn about so much innovation and creativity that is actually taking place in (and outside of) our classrooms.  One of the common themes--proceeding from the organizers' Practically Grounded article--is that land use is uniquely suited to the application of the best practices movement.  But I think that any field could profit from a discussion like this.  It's a great time to be teaching land use. 

Matt Festa

May 8, 2011 in Conferences, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 3, 2011

The Spillover Effects of Flood Control

While waiting for the first stack of ungraded final exams to hit my desk this week, I’ve been following developments in a dispute between Illinois and Missouri over flooding along the Mississippi River.  Rising floodwaters in the region presented federal government officials with a difficult choice.  If they took no action, severe flooding would likely destroy the small town of Cairo, Illinois.  If they intentionally broke a downstream levee, they would save Cairo from ruin but would allow floodwaters to devastate 90 homes and 200 square miles of farmland in Missouri.  I plan on discussing this simple dilemma to introduce the concept of cost-benefit analysis to my Land Use students this Fall. 

The conflict has centered on whether to activate the Birds Point-New Madrid Floodway, a 130,000-acre area in southeast Missouri.  In the 1920s and 1930s, the federal government paid private landowners an average of $17 per acre to acquire “flowage rights” throughout the floodway.  The acquisition of these rights, authorized under the 1928 Flood Control Act, entitles the federal government to purposely divert water from the main channel of the Mississippi River onto the burdened properties when necessary to prevent flooding elsewhere.

For the past week, Illinois and Missouri have been battling in court over whether the federal government should fill the floodway with water for the first time since 1937 to prevent flooding in Cairo.  Missouri’s attorney general filed a complaint in U.S. District Court last week seeking a court order to prevent intentional flooding of the floodway, arguing that it was unjustified and would cause water pollution in violation of the Clean Water Act.  The District Court denied Missouri’s request, and Missouri’s appeals to the Eight Circuit Court of Appeals and U.S. Supreme Court also failed.  With the legal obstacles cleared, the U.S. Army Corps of Engineers used explosives to blast a two-mile-wide hole in a river levee last night and began floodwaters pouring into the floodway.    

According to Bloomberg, the U.S. Government believes that flooding the floodway will cause about $314 million in damage and contamination but will avoid more than $1.7 billion in damage in Cairo and other communities along the river.  Based on those figures, landowners within the floodway were the least-cost avoiders in this context and sacrificing their land uses to protect more valuable uses upstream probably maximizes social welfare.  Not surprisingly, many of the private individuals residing or working within the 200-square-mile floodway were more focused on their own losses.  A local newspaper article suggests that some landowners intend to file a takings claim against the federal government for breaking the levee. 

Ironically, the concept of externalities or “spillover” effects takes on a double meaning in this case.  The question of whether or not to flood the floodway required government decision makers to consider both the literal and figurative spillover effects of each option!

Troy Rule

May 3, 2011 in Environmentalism, Federal Government, Politics, Property Rights, State Government, Takings, Teaching, Water | Permalink | Comments (1) | TrackBack (0)

Introducing Troy Rule

The Land Use Prof Blog is delighted to welcome its newest guest blogger, Professor Troy A. RuleRule-t Prof. Rule is an Associate Professor at the University of Missouri School of Law.  He teaches land use, secured transactions, and sales & leases, and his research focuses on renewable energy and property law.  He's an alum of BYU and Chicago and worked in the finance industry before a law practice in Seattle focused on commercial real estate and wind energy.

We've featured his scholarship several times on the blog, including Shadows on the Cathedral: Solar Access Laws in a Different LightRenewable Energy and the Neighbors; and, most recently, Sharing the Wind.  His next piece is Airspace in a Green Economy, forthcoming in the UCLA Law Review.  He was also recently on a well-received panel at ALPS with some of our regular Land Use bloggers. 

It's a great privilege to introduce Troy and to add him to the list of outstanding new voices in land use law that we've been lucky enough to host here.  It's fantastic that he has volunteered to guest-blog during May, which is the month that most of us love to procrastinate by reading blogs, but are too busy grading to write very much.  So thanks to him for signing up!  On top of all of his scholarly accomplishments, Troy Rule might just have the single greatest name of any junior scholar in the legal academy.  We look forward to reading.

Matt Festa

May 3, 2011 in Clean Energy, Property, Real Estate Transactions, Scholarship, Teaching, Wind Energy | Permalink | Comments (0) | TrackBack (0)