Wednesday, July 6, 2011
[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March. Here are his thoughts on the latest development in the case. Thanks!--Matt Festa]
The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here). The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit.
At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance. Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach. Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement.
In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance. The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland.
Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case. The Court ultimately conducted a second round of oral argument in April. Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).
Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.” Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”
Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy.
In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue. The Court obliged. The State filed its brief today, and Ms. Severance’s response is due next Tuesday. Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.
July 6, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmentalism, Politics, Property Rights, State Government, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 21, 2011
Robin Kundis Craig (Florida State) has posted Energy System Impacts, forthcoming in THE LAW OF ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS, American Bar Association, 2012. The abstract:
The exact impacts of climate change in the U.S. are still uncertain, so the effects on the energy sector are also highly uncertain, although the uncertainty is greater regarding effects on energy supply and production than regarding energy demand. Overall, climate change is likely to increase energy demand, increase peak demands, and shift energy needs from heating oil and natural gas to electricity, all of which effects will be driven primarily by increased needs for residential, industrial, commercial, and agricultural space cooling as summers grow hotter and heat waves become more frequent. As for production and supply, the greatest overall effects of climate change in the U.S. are likely to be on operators’ abilities to cool power plants and the consequent loss of efficiency and capacity as a result of increased air and water temperatures and reduced water supplies; on hydroelectric generation as a result of reduced and more variable flows; and on energy-related infrastructure of all types as a result of increasingly severe weather events and sea-level rise. Importantly, however, these national or overall projections mask important regional variations in climate change impacts, and hence adaptation strategies should be cognizant of and responsive to those regional differences. Moreover, climate change impacts on the energy sector strongly indicate that adaptation efforts will need to coordinate energy policy and water policy to reflect the likelihood that climate change will have significant impact on the energy-water nexus.
Thursday, May 26, 2011
Reed D. Benson (New Mexico) has posted Alive but Irrelevant: The Prior Appropriation Doctrine in Today’s Western Water Law, forthcoming in the Colorado Law Review. The abstract:
The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the western states’ departure from Prior Appropriation.
Thursday, May 12, 2011
Royal C. Gardner (Stetson) has posted Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics. It is the introduction to his new book of the same name from Island Press (2011). The abstract:
This paper is the table of contents and introduction to Royal C. Gardner, Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics (Island Press 2011). The book is an accessible guide to the complex set of laws governing America's wetlands. After explaining the importance of these critical natural areas, the book examines the evolution of federal law, principally the Clean Water Act, designed to protect them.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
the geographic scope and activities covered by the Clean Water Act; the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency; the goal of no net loss of wetlands; the role of entrepreneurial wetland mitigation banking; the tension between wetland mitigation bankers and in-lieu fee mitigation programs; enforcement issues; and wetland regulation and private property rights.
The book concludes with policy recommendations to make wetlands law more effective.
Looks like a new key resource for anyone intersted in wetlands law.
May 12, 2011 in Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Property Rights, Scholarship, Supreme Court, Takings, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 3, 2011
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!
Monday, May 2, 2011
As previously reported on this blog, the U.S. Supreme Court took on a relatively rare original-jurisdiction matter with the case of Montana v. Wyoming. Today, the Court ruled in a 7-1 opinion (Kagan recused; Scalia in dissent) to dismiss Montana's suit. Following the conclusion of Buzz Thompson (Stanford), the master it appointed on the matter in 2008, the Court held that the western water law doctrine of prior appropriation allowed upstream users to improve the efficiency of irrigation operations even to the detriment of downstream users.
Monday, April 25, 2011
Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review. The abstract:
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
A significant paper on drought and the increasingly alarming state of U.S. water resource law.
Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts.
This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.
The nine other scholars listed as co-authors (Andreen, Camacho, Farber, Glicksman, Goble, Karkkainen, Rohlf, Tarlock and Zellmer) make this white paper an all-star production. As an environmental 'greenhorn', I found the explanation of the concept of adaptive management straightforward and compelling. The case studies illustrate not only best practices but cautionary tales belying elevation of adaptive management as a panacea for the protection of all complex ecosystems.
Saturday, April 23, 2011
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.
Tuesday, March 29, 2011
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
Monday, March 21, 2011
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!
Tuesday, March 8, 2011
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
Wednesday, March 2, 2011
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.
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
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@example.com.
For more information, contact Jessica Owley [firstname.lastname@example.org or 716-645-8182] or Kim Diana Connolly [email@example.com 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
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
Tuesday, January 18, 2011
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!
Tuesday, January 11, 2011
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.
Friday, December 17, 2010
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:
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
● 2 world-class keynotes, and a special featured presentation
● 32 sessions on today’s critical land use and development issues, including:
Sustainable Economic Development
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
Wednesday, December 8, 2010
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.
Tuesday, December 7, 2010
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.
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)