Saturday, April 23, 2011

Blumm & Guthrie on Internationalizing the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012).  The abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.

Matt Festa

April 23, 2011 in Beaches, Caselaw, Comparative Land Use, Environmentalism, History, Property, Scholarship, State Government, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 29, 2011

Yoga and Water

Those of you who follow this blog closely might have noticed that, in addition to land use law, I have an interest in contemplative practices such as yoga and meditation.  Very occasionally, those two interests overlap.

This month, Yoga Journal focuses on water issues.  In addition to the "Fluid Nature" sequence of yoga postures and the "Drink it In" water meditation, which are available on-line, there are also some articles on water quality, water consumption, overfishing, and other human impacts on the acquatic environment.  Unfortunately, the latter information isn't available on the Yoga Journal website, only in the print edition.

It makes sense that folks who are interested in better self care are also interested in caring for their environment.  More deeply than that, yoga and meditation teachings focus on the fact that we are not separate from each other, or from the natural world, and so what we do to our environment we do to ourselves.  How that relates to land use law is a bit more tangential - yogis and mindfulness practitioners tend to focus an individual ethical code involving on "right effort" and individual action more than on law and regulation. Still, sometimes it's interesting to examine the intersection of the two world views.

Jamie Baker Roskie

March 29, 2011 in Water | Permalink | Comments (0) | TrackBack (0)

Monday, March 21, 2011

Hirokawa on Disasters and Ecosystem Services Deprivation

Keith H. Hirokawa (Albany) has posted Disasters and Ecosystem Services Deprivation: From Cuyahoga to the Deepwater Horizon, Albany Law Review, Vol. 74, No. 1 (2011).  The abstract:

On April 20, 2010, an explosion on the Deepwater Horizon oil rig resulted in the release of substantial amounts of oil into the Gulf of Mexico, threatening the viability of some of the world’s most essential ecosystems. Due to both the scale of the damage and the circumstances regarding the risks involved, the event has been appropriately labeled as a disaster. However, the Deepwater Horizon incident has also mobilized a large-scale investigation into the living technology through which the Gulf of Mexico and its ecosystems provide essential, life-supporting ecosystem services. This essay explores the manner in which environmental disasters require us to adapt our understanding of nature to a changed environment, forcing us to face the loss of valuable services provided by functioning ecosystems. This essay discusses the role of environmental disasters in the development of environmental law, then focuses on the opportunities provided by ecosystem services research in calculating the ecological, social, and economic value of natural resources impaired in such circumstances.

That's two today from the Albany junior profs!

Matt Festa

March 21, 2011 in Environmental Law, Environmentalism, Property, Scholarship, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 8, 2011

Vermont Clinic Victory in Groundwater Case

From Teresa Clemmer at Vermont Law's Environmental and Natural Resources Law Clinic:

The ENRLC is very pleased to announce that it has prevailed on summary judgment in the Vermont Environmental Court after three years of litigation concerning groundwater contamination at the Omya mineral processing facility in Florence, Vermont.  For years, Omya has dumped its waste into unlined pits, which has caused the groundwater under its facility to become contaminated with arsenic and aminoethyl ethanolamine (AEEA).  Our clients, the Residents Concerned about Omya (RCO), have been advocating for the protection of this groundwater at this site for over seven years. 
 
On Monday, Judge Wright of the Environmental Court ruled in RCO's favor and determined that the Vermont Agency of Natural Resources (ANR) must conduct a public trust analysis when issuing a waste disposal certification for activities that may impact groundwater.  This ruling is the first interpretation of Vermont's 2008 law designating groundwater of the State as a public trust resource.  Accordingly, the ENRLC has played an important part in establishing a groundbreaking precedent that will help protect the groundwater resources of the State for future generations of Vermonters.  Omya's final certification has been vacated, and the final certification has been remanded to ANR to perform this analysis. We anticipate that Omya will appeal the decision to the Vermont Supreme Court, and the ENRLC will continue to represent RCO in those proceedings. 
 
The ENRLC would like to congratulate attorneys Sheryl Dickey, David Mears, Patrick Parenteau, Ben Rajotte, and twenty-one student clinicians whose hard work has made this important victory possible.

Jamie Baker Roskie

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

Wednesday, March 2, 2011

Long on Sustainability v. Sprawl in the Post-Public-Lands West

Jerry Long (Idaho) explores the causes of and reasons for a community's commitment to sustainable land-use planning in his recently posted Private Lands, Conflict, and Institutional Evolution in the Post-Public-Lands West, 28 Pace Env. L. Rev. ___ (forthcoming 2011).  Here's the abstract:

As rural communities face amenity-driven population growth and globalizing culture and economic systems, the process by which those communities imagine and implement desired futures grows increasingly complex. Globalization- and technology-facilitated and amenity-driven population growth increases the value of place-bound benefit streams – including land – promoting increased levels of physical development and a changed built environment. At the same time, globalizing culture and evolving local demographics might alter local land-use ideologies, yielding a preference for resource protection and more sustainable local land-use regimes. This article engages in a theoretical and empirical exploration that seeks to answer a single question: Why, in the face of competing land-use ideologies, might a community choose to adopt a more resource-protective, or resource-sustaining, land-use regime? Ultimately, it is only upon witnessing the actual effects of previous choices on the ground – including most significant, real harm to valued social or natural amenities – that a community is able to imagine and implement a land-use regime that can protect the amenities that community values.

Jim K.

March 2, 2011 in Community Design, Community Economic Development, Comprehensive Plans, Conservation Easements, Density, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Land Trust, Las Vegas, Local Government, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Suburbs, Sun Belt, Sustainability, Urbanism, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, February 7, 2011

Fracking Conference

We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!

- Jessica Owley

 Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy

March 28-29, 2011 at University at Buffalo School of Law

Buffalo, New York

On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.

Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.

We welcome submissions on any related topic, including the following:

  • Hydrofracking and Nuisance Law
  • Impacts on Tribal Lands
  • Administrative law and the EPA Rulemakings
  • Environmental Review Processes    
  • Application of federal environmental laws, including the Clean Water Act and Clean Air Act
  • Energy issues, in including the Energy Policy Act and DOE policy
  • Endocrine Disruption and Human Health Impacts

Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to [email protected]

For more information, contact Jessica Owley [[email protected] or 716-645-8182] or Kim Diana Connolly [[email protected] or 716-645-2092]

February 7, 2011 in Clean Energy, Climate, Conferences, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Local Government, New York, NIMBY, Nuisance, Oil & Gas, Planning, Politics, Property, Property Rights, Scholarship, State Government, Sustainability, Water | Permalink | Comments (3) | TrackBack (0)

Wednesday, February 2, 2011

One of the Many Reasons I Love Buffalo

While the rest of the country is reeling from the huge snow storms, it was just another winter day here in Buffalo. (Most of the schools were closed today, but the consensus seems to be that they shouldn't have bothered because the snow didn't arrive in the amount expected.) Buffalo has already surpassed 60 inches of snowfall this winter, but no one here is fazed by it.

Having grown up in Wisconsin, I am used to snow but I have been impressed with the snow culture here. In particular, I assumed that being a home owner in Buffalo meant buying a snow blower. However, in my neighborhood this doesn't seem to be the case. Only one or two people on each block buy a snowblower snow thrower and then those wonderful souls clear the snow for the entire block. We moved to Buffalo this past summer. When our neighbors told us not to buy a snowblower because someone else already had one, we thought they were kidding. We have two such snowblower owners on our block. One of them even took the time to do our entire driveway. I rushed out to thank our neighborhood snowblower owner one day last week. "Just being a good neighbor!" he said.

Thinking about land use and community here in Buffalo necessarily involves considering weather snow. Locations of public services, uses of public spaces, and protection of natural resources must be approached differently in a place where you can't see the sidewalks for three months. Sure lots of cities are walkable, but how many are cross country skiable? It is always interesting to move to a new city and learn about the different communities, traditions, and landscapes. Although Buffalo is beautiful in the summer (admittedly the best time to visit), you have to be here in the winter to understand how the community comes together.

- Jessica Owley

February 2, 2011 in Climate, Community Design, New York, Pedestrian, Property, Water | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 18, 2011

Carousels vs. Conservation in Brooklyn

In the small world department, at a wedding in December I met a student of Patricia Salkin's.   Andrew Stengel, a "non-traditional" second-year student at Albany Law School, is a member of the school’s Government Law Review.  Andrew has also served in a variety of positions in government and progressive advocacy organizations.  He worked as the political director for Harvey Weinstein, co-founder of Miramax Films, and he got his start in the administration of Gov. Mario Cuomo.

Andrew e-mailed me recently to let me know about his recent posts on the Government Law Review blog regarding a plan to put a carousel in an area of a park in Brooklyn that is meant to be protected in perpetuity as a natural and scenic area. Read his posts here and here.

Jamie Baker Roskie

UPDATE - on April 10, 2011 a federal judge in New York temporarily blocked the plan for a carousel. Stay tuned!

January 18, 2011 in Historic Preservation, New York, Water, Wetlands | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 11, 2011

Montana v. Wyoming (and North Dakota)

Just in time for today's (my one and only) class dealing with water law . . . the U.S. Supreme Court heard oral arguments yesterday about the concept of "beneficial use" in the Western states' prior appropriation approach ("first come, first served" per Chief Justice Roberts) to water law.  The case seems to hinge on whether or not Wyoming is in violation of a compact signed by Montana, Wyoming and North Dakota if less water is being returned now to the Yellowstone River basin by Wyoming irrigation systems than was being returned in 1950, the date for the "beneficial use" benchmark.  In 2008, the Court appointed Buzz Thompson (Stanford) as special master for the matter.  Today's NY Times article suggests that the Court, which has original and exclusive jurisdiction over the matter, is skeptical of Montana's complaint.

Jim K.

[email protected]

January 11, 2011 in Agriculture, Caselaw, Food, Water | Permalink | Comments (0) | TrackBack (0)

Friday, December 17, 2010

Rocky Mountain Land Use Institute 2011 Conference

From Fred Cheever at University of Denver:

REGISTRATION NOW OPEN
ROCKY MOUNTAIN LAND USE INSTITUTE CONFERENCE
MARCH 3-4, 2011
UNIVERSITY OF DENVER CAMPUS

Register now for early bird rates of:
Corporate: $450
Government: $375
Non-Profit: $275
Student: $100

Early bird rates expire midnight on February 1, 2011. Rates increase in each
category by $100 on February 2, 2011 except for the Student category.

This promises to be the best RMLUI Conference yet. Our 20th anniversary will
feature:

●   2 world-class keynotes, and a special featured presentation
●   32 sessions on today’s critical land use and development issues, including:

Affordable Housing
Climate Change
Mobility
Renewable Energy
Sustainable Economic Development
Water Conservation

Please join many of the nation’s top land use practitioners and scholars as we
explore the field’s most challenging subjects, share insights and knowledge
about best practices and begin to map out the region’s next 20 years and the
path to the Next West.

Sounds pretty interesting - I've always wanted to go to this conference.  Maybe next year I'll actually make it!

Jamie Baker Roskie

December 17, 2010 in Affordable Housing, Clean Energy, Climate, Conferences, Development, Economic Development, Water | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 8, 2010

Epstein on Property Rights in Land and Water

Richard A. Epstein (NYU, Chicago, and Stanford--Hoover Institution) has posted Playing by Different Rules? Property Rights in Land and Water, from EVOLUTION OF PROPERTY RIGHTS RELATED TO LAND AND NATURAL RESOURCES, Lincoln Institute, 2010.  The abstract:

This article examines both the similarities and differences between the law of land and water in both a private law and constitutional law setting. The first critical difference is that the nature of the two resources differs enough such that exclusive rights for occupation usually sets the right framework for analyzing land use disputes, while a system of shared, correlative duties work best for water. Once these baselines are established, it follows that an accurate rendition of the constitutional law issues necessarily rests on the proper articulation of private law rules of adjudication. Unless those efficient private rules are used as a baseline for constitutional adjudication, it becomes impossible to explain which government actions result simply in a "mere" loss of economic value and which government actions generate losses that require compensation. Parties can engage in wasteful political arbitrage without limitation.

In dealing with the private law issues, the first step is to develop principles of parity between private claimants, to the extent that this approach is physically possible. The second step then picks the set of rules that maximizes the overall utility of all parties concerned, subject to the parity constraint. This system must yield to reasonableness considerations when the conditions of physical parity cannot be satisfied, which covers all cases of dispute between upper and lower owners of land, as well as upstream and downstream riparians. In both these settings, the objective is to create, whenever possible, rules that treat the last element of loss to one party equal to the last element of gain of the next.

Using these natural law baselines produces by and large efficient results in private disputes. The rejection of these rules in the takings context in both land and water cases yields the opposite result, by conceding far too much power to state authorities in both land and water cases. It is no mistake that the modern law of regulatory takings for land, as developed in the 1978 Penn Central case, explicitly rests on the same intellectual confusions about property rights and economic losses that underlie the 1944 Willow River case, dealing with water rights. The only rationalization of both areas of law requires that the constitutional protection of private property start with the definitions of private property that have worked so well in practice under the natural law traditions of private law.

Matt Festa

December 8, 2010 in Books, Constitutional Law, Eminent Domain, Property Rights, Property Theory, Scholarship, Servitudes, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 7, 2010

Lane on Federal/State Impacts on Property Rights in Australia

Patricia Lane (Sydney) has posted An Unholy Alliance – Combined Federal/State Impacts on Property Rights in Australia.  The abstract:

The Australian Constitution contains a guarantee that Federal laws for acquisition of property must provide for compensation on ‘just terms’. The Constitutions of the Australian States contain no such guarantee of ‘just terms’ compensation for State government acquisition of property. State Governments, however, are the polities with the primary responsibility for land regulation, including land titles, land management, and regulation of the exploitation of land-based resources. The Federal Government has to deal with cross-state environmental and land management issues, such as water allocations, land salinity, and protection of threatened and protected species, and to deal with the challenges of climate change, in a way that recognises and respects the separation of powers between the Federal and State governments. To what extent can the Federal government act in concert with the States to terminate resource exploitation rights, or ordinary land-use rights, in a way that does not require compensation on just terms for the holder of those rights be compensated on just terms? This paper examines the extent of State and Commonwealth obligations to compensate persons whose property rights in land or resources are curtailed or sterilised by regulatory mechanisms directed to resource security or environmental protection, in the light of recent High Court decisions on the acquisition power.

Matt Festa

December 7, 2010 in Comparative Land Use, Constitutional Law, Environmental Law, Federal Government, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 1, 2010

Arnold on Climate Change, Water, and Adaptive Law

Craig Anthony (Tony) Arnold (Louisville) served last spring as a visiting professor at the University of Houston, where he organized an excellent symposium on Climate Change, Water, and Adaptive Law, with participation from Robin Kundis Craig, Noah Hall, Dan Tarlock, Elizabeth Burleson, Lea Rachel Kosnick, and Kathleen Miller.  Prof. Arnold has recently posted two pieces from the symposium issue, published in the Environmental and Energy Law and Policy Journal, Vol. 5 (2010).

The introductory essay is Law's Adaptive Capacity and Climate Change's Impacts on Water.  The abstract:

This is an introductory essay to a symposium on Climate Change, Water, and Adaptive Law, held at the University of Houston Law Center in February 2010 and published in the Environmental and Energy Law and Policy Journal. It contends that changing climate conditions are creating pressures on water law, policy, and management institutions to adapt and questions whether these institutions have the capacity to adapt to climate change. It describes four major effects of climate change as they relate to water resources: 1) precipitation effects; 2) environmental and landscape structural effects; 3) behavioral response effects; and 4) institutional response effects. The essay then describes two articles addressing the dynamics of cross-jurisdictional scale: one by Robin Kundis Craig and one by Noah Hall; two articles addressing cross-sector interrelationships among water and energy: one by Dan Tarlock and one by Lea Rachel Kosnik; and three articles analyzing the adequacy and adaptability of existing trends in decentralized water planning and management: one by Kathleen Miller, one by Tony Arnold, and one by Elizabeth Burleson. The essay then comments on the themes of fragmentation and integration in the context of the systemic evolution and emergence of water law institutions.

Prof. Arnold's own contribution to the symposium is his article Adaptive Watershed Planning and Climate Change.  The abstract:

Few phenomena make the case for adaptive ecosystem management quite as well as climate change, the hydrological effects of which will upset settled expectations and require water institutions to adapt. The effects of climate change will be felt at multiple hydrological, geographic, and institutional scales that transcend specific water sources or political and legal jurisdictions. Moreover, the effects will be uncertain, complex, and frequently changing. Thus, water resources should be managed at watershed scales, and this management should use the adaptive management methods of flexibility, experimentation, and learning through iterative processes of managing environmental conditions and programs.

However, the adaptive ecosystem management concept has had the unfortunate effect of de-emphasizing or even rejecting the role of planning in shaping the relationships between human actions and ecological conditions. Too little attention has been given to the role of planning in adaptation and ecosystem management. A concept of "adaptive planning" is not only consistent with adaptive ecosystem management, but could actually improve adaptive ecosystem management methods and the capacity of institutions to engage in adaptive ecosystem management effectively. Moreover, a growing number of watershed plans are exhibiting some characteristics of adaptive planning, particularly with respect to the effects of climate change on watersheds and water resources.

This article explores the role of adaptive watershed planning in adapting to climate change. Adaptive watershed management requires the use of adaptive planning methods, not merely ad hoc, reactive experimentalism and incrementalism. Without some process of planning, Charles Lindblom’s “science of muddling through” becomes "the science of drifting along." Adaptive planning gives some direction and focus to adaptive ecosystem management activities. Furthermore, adaptive watershed planning can improve not only adaptive watershed management methods, but also the content and effectiveness of watershed plans themselves. If watershed plans are to be useful, they must contemplate the uncertainties associated with climate change and its effects.

In addition to describing the theory and features of adaptive planning and applying adaptive planning principles to watershed planning and management, this article also explores examples of watershed plans in the U.S. and Canada that have addressed climate change and analyzes a number of issues in adaptive watershed planning, including barriers to, and opportunities for, the increased and improved use of adaptive watershed planning to improve the capacity of watershed institutions to adapt to climate change.

Check out all of the articles from this interesting event when they are published by Environmental and Energy Law & Policy.  It was great to have Tony Arnold down in Houston last spring to organize this event, with the side benefit of bringing him over to South Texas for our Land Use in the Unzoned City forum!

Matt Festa

December 1, 2010 in Climate, Conferences, Environmental Law, Environmentalism, Planning, Property, Scholarship, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Friday, November 26, 2010

Benson on Environmental Review of Western Water Project Operations

Reed D. Benson (New Mexico) has posted Environmental Review of Western Water Project Operations: Where NEPA has not Applied, Will it now Protect Farmers from Fish?, forthcoming in UCLA Journal of Environmental Law & Policy, Vol. 29, No. 2, 2011.  The abstract:

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger’s recent decisions applying NEPA to the Bureau’s efforts to comply with the Endangered Species Act in operating the Central Valley Project. The article concludes that the Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species.

Matt Festa

November 26, 2010 in Agriculture, Caselaw, Environmental Law, Federal Government, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Monday, November 22, 2010

Southeast Smart Growth Network Video Conference

I just received this announcement from Katie Sheehan at UGA's River Basin Center:

The Southeast Smart Growth Network invites you to join us for our first regional video
conference showcasing key smart growth initiatives in the Southeast. The hour and a half program
will be presented from four interactive sites linked by the University of Georgia. You may also view the presentation from your computer.

Overcoming Obstacles to Smart Growth – A Case Study of the Town
of Davidson, NC (2004 EPA Award for Overall Excellence in Smart Growth
Achievement) - Town of Davidson Planning Manager, Lauren Blackburn,
and Commissioner Marguerite Williams will explain the main tenets of the
Davidson Planning Ordinance, initial community reactions to draft policy,
and the tools used to build support for change.

Going Green in Georgia – David Freedman, Principal at Freedman
Engineering Group and former Director of Engineering and Construction
for the Georgia Department of Natural Resources, will discuss strategies
for a successful green building program and cost neutral approaches to
constructing green buildings.

HUD-DOT-EPA Interagency Partnership for Sustainable Communities -
Anne Keller, Senior Sustainability Advisor, Environmental Protection
Agency Region 4, will discuss the new partnership and provide an
overview of the communities in the Southeast receiving grants. Amy
Brooks, Transportation Planner, Knoxville Regional Transportation
Planning Organization, will briefly discuss their initiative to develop a
Regional Plan for Sustainable Development.

Southeast Smart Growth Network – Christine Olsenius, Executive
Director of the Southeast Watershed Forum, will introduce a new project to
analyze green building programs in 5 Southeastern states.

DECEMBER 13th 2010, 2-3:30pm EST video conference.
Watch online: Email [email protected] to
receive the conference url and link-up instructions.

You can also watch from four locations;

Athens, Georgia - Center for Teaching and Learning, North Instructional Plaza, http://www.ctl.uga.edu/location, park at the Tate Student Center, 705 S. Lumpkin Street

Atlanta, Georgia - Georgia Department of Community Affairs, 60 Executive Park South NE, http://www.dca.ga.gov/main/About/DCAMap1.pdf, sign in at the security desk in the lobby

Charlotte, North Carolina - University of North Carolina, Charlotte, Room 126 Fretwell Building – #45 on campus map, park on parking deck, http://home.uncc.edu/directions

Knoxville, Tennessee - University of Tennessee, Room 156 Plant Biotechnology Building on the Agriculture Campus, http://www.utk.edu/maps/

Looks like it will be very interesting - unfortunately I've got a conflict, but I imagine it will be posted on a website for later viewing.

Jamie Baker Roskie

November 22, 2010 in Community Design, Conferences, Development, Georgia, Green Building, Local Government, Planning, Smart Growth, Urbanism, Water | Permalink | Comments (1) | TrackBack (0)

Friday, November 19, 2010

Juergensmeyer on Rainwater Recapture

Julian Conrad Juergensmeyer (Georgia State) has posted Rainwater Recapture: Development Regulations Promoting Water Conservation, which was published in a symposium issue of the John Marshall Law Review, Vol. 43, p. 359 (2010).  The abstract:

The increasing need for water conservation in the eastern as well as western parts of the United States is focusing attention on rainwater recapture. The technology available is effective and relatively inexpensive. Using land development regulations to require or encourage new development to incorporate rainwater recapture facilities is one approach to alleviation of local water shortages.

Prof. Juergensmeyer's paper was a keynote presentation at the Kratovil Conference on Real Estate Law and Practice, hosted by John Marshall's Center for Real Estate Law.  By coincidence, I just got in the mail this morning a very nice brochure about the Center.  Directed by Prof. Celeste M. Hammond, it offers a graduate program in Real Estate Law leading to either an LLM for lawyers or to an MS for real estate professionals.  Looks like a great program with lots of things going on; for more info, check out the Center's website.

Matt Festa

November 19, 2010 in Chicago, Environmental Law, Environmentalism, Real Estate Transactions, Scholarship, Teaching, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Smith on Water as a Public Good Under GATT

Bryant Walker Smith (NYU) has posted Water as a Public Good: The Status of Water Under the General Agreement on Tariffs and Trade, Cardozo Journal of International and Comparative Law, Vol. 17 at 291 (2009).  The abstract:

Is water a "product" subject to the World Trade Organization (WTO)’s General Agreement on Tariffs and Trade (GATT)? I argue that it is not, because the established, widespread, and consistent assertion by states of public ownership over their water resources through both municipal and international law (the "public-ownership consensus") precludes any reading of GATT that would fundamentally alter the unique status of those resources. My reasoning therefore differs from that of others who have addressed this issue in that I first examine the broader legal context in which the WTO exists and then consider how that context compels an interpretation of "product" that excludes water resources.

Matt Festa

October 26, 2010 in Comparative Land Use, Environmental Law, Property Rights, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, October 7, 2010

Ruhl on Ecosystem Services and the Clean Water Act

J.B. Ruhl (Florida State) has posted Ecosystem Services and the Clean Water Act: Strategies for Fitting New Science into Old Laws.  The abstract:  

This Article explores the administrative reform potential that exists for integrating new knowledge about ecosystem services into Clean Water Act (CWA) regulatory programs as an example for all environmental laws. Part II of the Article reviews the relevant general rules of federal administrative law governing agency interpretation of the policy space available under statutory authority for integrating new science into decision making. Part III then explores the strategies an agency such as EPA can use under those rules to integrate the concept of ecosystem services into regulatory programs by searching for statutory provisions to support what I call "direct protection" authority and "performance metric" authority. Part IV of the Article turns to the dredge and fill permit program of section 404 of the CWA and the water quality standards and total maximum daily load (TMDL) program of section 303 of the CWA as its case studies, showing how opportunities for and obstacles to the two integration strategies arise in the structure and text of the statute. The Article closes with some thoughts on a more overarching agenda for working ecosystem services into existing federal environmental protection programs.

Matt Festa

October 7, 2010 in Environmental Law, Environmentalism, Federal Government, Scholarship, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Thursday, September 30, 2010

A Report on the Impacts of Deepwater Horizon

I've blogged before about an informal "2nd Friday Symposium" held by the River Basin Center here at UGA.  I wasn't able to attend the most recent event, so I asked Land Use Clinic student Greg Raburn to report.  Here's his summary (and accompanying culinary notes):

The convivial meeting started at 4:00 p.m., but, by the time I was able to get out of class, burn the roof of my mouth on a hastily-heated corn dog, and drive to the River Basin Center, the discussion had already begun  The room, which had the appearance of some type of student lounge, was nearly full, and the speaker, who must have been Professor Chuck Hopkinson of Marine Sciences and Director of the Georgia Sea Grant, with beer in hand, was describing the statistics and findings displayed on the projection screen.

He noted that while Savannah, as befitting one of the top U.S. seaports, was being monitored for contamination, Georgia’s southeast coast was not.  The oil, if or when it appeared on Georgia’s beaches, he stated, would probably look like tar-balls (which were essentially asphalt, he explained) or micro-droplets, and he and his group had made recommendations to Congressional staffers for detecting the presence of the oil and monitoring it.  He said much of the Gulf data was being collected by robotic “Seagliders,” manufactured by iRobot (the makers of the “Roomba” robotic home vacuum cleaner).  The gliders were designed to “glide” to the bottom of the ocean, collecting data from their surroundings, and then rise to the surface and transmit the data.  In addition to recommending using Seagliders off the Georgia coast, his group additionally recommended using fluorescent sensors, doing tar-ball counts, monitoring “sentinel” organisms, and utilizing satellite monitoring to collect additional data.

The next part of the discussion centered on the National Oceanic and Atmospheric Administration’s leaked press release which had stated that 74% of the released oil was “gone.”  The report naturally raised the question:  if 74% of the oil was truly gone, where did it go?  The press release claimed that 25% of the oil had dissolved or evaporated, 16% had been naturally dispersed, 8% had been chemically dispersed, 17% had never entered the water (captured at the surface), 5% had been burned, and the cleanup efforts had captured 3%, and therefore only 26% of the oil remained in the ocean.

Professor Hopkinson’s group decided to evaluate the data themselves.  The first thing they did was discard the figure for the 17% of oil that never entered the water; if some oil never entered the water, they felt it was misleading to include it on a report about the status of the oil in the water.  Professor Hopkinson’s group also figured in “degradation,” which, based from data from the Ixtoc oil spill off the coast of Mexico in 1979, was estimated at about 4%-8%.  His group ultimately concluded that the oil was not “gone,” but that most of it had simply changed into a form that rendered it uncollectable.

The University of Georgia and the Georgia Sea Grant testified before a [Georgia] Senate subcommittee regarding Georgia’s vulnerability to the oil spill.  The Senate subcommittee charged the Georgia Department of Natural Resources to develop an oil sampling plan.  Three things were to be sampled:  water columns, hard bottom, and fish.  If oil were found in these things, then two additional things would then be sampled:  sediment and hydrodynamics.  Unfortunately, I am unable to provide further details on this part of the discussion, as it went well beyond my limited knowledge of marine science and ecology.

As a side note, Professor Hopkinson also observed that British Petroleum (BP) is selling or has sold off its terrestrial U.S. wells, put its shallow water wells up for sale, and is currently expanding its deepwater drilling in areas with little regulation, such as Africa and Brazil.  He suggested this could have been a counterproductive consequence of the recent U.S. sanctions on BP and the restrictions on deepwater drilling.  He pointed out that the well currently being drilled in Brazil, will be at almost twice the depth of the Deepwater Horizon.

Professor Hopkinson closed by saying that the University of Georgia Sea Grant website on the oil spill could be found at oilspill.uga.edu, with additional information at www.southatlanticseagrant.org, www.deepwaterhorizonresponse.com,  and www.restorethegulf.gov.

In conclusion, I found the science and statistics of the discussion to be rather interesting.  I had to glean the meaning of much of the technical language from the context in which it was used.  The symposium was definitely geared toward someone with more of a background in environmental and marine science than myself, but the group was open and friendly, and a small variety of refreshments were available – including a bowl of dried, multicolored, tubular things that, in size and shape, resembled McDonald’s French Fries.  I had to try one.  It tasted kind of like a pretzel.  I still have no idea what it was.

Jamie Baker Roskie

September 30, 2010 in Conferences, Environmentalism, Georgia, Oil & Gas, State Government, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 28, 2010

Arnold on Fourth-Generation Environmental Law

Craig Anthony (Tony) Arnold (Louisville) has posted Fourth-Generation Environmental Law: Integrationist and Multimodal.  The abstract:

Institutional arrangements to protect the environment, manage natural resources, or regulate other aspects of society and the environment are not merely matters of optimal institutional design or choice. These arrangements result, at least in substantial part, from the evolution of interconnected social, legal, and ecological systems that are complex, dynamic, and adaptive. This article makes the case that environmental law is evolving to become more integrationist and multimodal: the use of multiple modes and methods of environmental protection, often across multiple scales, but in integrated ways. Integrated multimodality is a feature of much of social life. Building on generational analyses of environmental law and exploring complex problems at the intersection of climate change, land use, and water, this article contends that environmental law is undergoing pressure to adapt, because unimodal (“one-size-fits-all”) and fragmented approaches to environmental problems are proving inadequate. On one hand, a variety of psychological, socio-structural, political, economic, and normative forces converge to produce unimodal fragmentation. On the other hand, several phenomena – “wet growth” policies that integrate water quality and conservation into land use planning and regulation; watershed planning and management; and local climate change action plans – reflect the evolution of integrationist multimodality. These examples illustrate four nodes of connectivity by which multiple modes are integrated, and also suggest that integrationist and multimodal developments are occurring and will occur at the edges of environmental law. However, integrationist multimodality may not necessarily produce better environmental protection and therefore much be studied as an emerging phenomenon in environmental law that can help us to understand better the functions and limits of environmental law.

Looks like another must-read from Tony Arnold for anyone working at the intersection of environmental and land use law.

Matt Festa

September 28, 2010 in Climate, Environmental Law, Environmentalism, Planning, Property Theory, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)