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)

Cole on Property Creation by Regulation

Daniel H. Cole (Indiana-Indianapolis) has posted what looks like another interesting article, Property Creation by Regulation: Rights to Clean Air and Rights to Pollute.  The abstract:

This paper, prepared for a Lincoln Institute conference on "Evolution of Property Rights Related to Land and Natural Resources," argues that, contrary to both the suppositions of some legal scholars and the theoretical underpinnings of Regulatory Takings doctrine, government regulations do not only impose on existing private property rights but also vindicate, and sometimes even create, public, private, and/or common property rights. 

After examining conflicting common law and Roman law rules relating to property rights in the atmosphere, the paper focuses on how assertions of state sovereignty and regulations combine to create Hohfeldian rights and duties respecting the atmosphere, where none previously existed or were unclear. An explicit (but hardly novel) claim is advanced that acts of sovereignty themselves amount to assertions of public property. The claim is supported by evidence from both civil aviation regulation and air pollution control. The paper also addresses how regulations have created private property rights to pollute in emissions trading programs (regardless of congressional assertions to the contrary). In some cases, assertions of public property via acts of sovereignty are a prerequisite to the allocation of private property rights, and not just in the atmosphere but in other natural resources, such as marine fisheries. 

The paper concludes with a discussion of normative implications for property theory generally and Regulatory Takings doctrine in particular. A more dignified treatment of public regulations that are designed to protect public rights would raise a serious question about which set of property rights should prevail in the several Regulatory Takings cases where privately-owned lands meet publicly-owned waters. That question cannot, however, be answered reasonably until a theory (or multiple theories) of public property are better developed to complement existing theories of private and common property. So, the paper ends with a call for more research into the theory and empirics of res publica (beyond equally naive public interest and public choice models).

I find the idea that government regulation creates property rights to be particularly fascinating.  I've considered it before in the context of zoning-- we usually focus on the question of whether new zoning restrictions effect a regulatory taking.  But when you buy into an existing zoning scheme, does the regulatory regime comprise part of your investment-backed expectations?  It could be an important question for advocates of deregulation.  Putting that tangent aside, it is certainly important for the environmental issues that Cole addresses in this interesting paper.  

Matt Festa

September 28, 2010 in Environmental Law, Environmentalism, Property Rights, Property Theory, Scholarship, Takings, Water, Zoning | Permalink | Comments (1) | TrackBack (0)

Friday, September 24, 2010

Adler on Revisiting the Fundamental Principles of the Clean Water Act

Robert W. Adler (Utah) has posted Resilience, Restoration, and Sustainability: Revisiting the Fundamental Principles of the Clean Water Act, Washington U. Journal of Law and Policy, Vol. 32, p. 139 (2010).  The abstract:

The last truly significant revisions to federal water pollution legislation (the “Clean Water Act” or “CWA”) occurred in 1972. The CWA has been among the nation’s more successful environmental statutes, especially with respect to control of point source discharges of pollutants into surface waters. However, when viewed from the broader statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” the statutory tools are either too dull to accomplish the task, or in some cases the appropriate tools have yet to be forged at all. In this Article, I argue that the focus of the CWA should be modified or expanded in four ways. First, we need to make better use of current concepts of ecosystem resilience rather than the notion of ecosystem “stability” that prevailed when the 1972 law was passed. Second, we need to develop the statutory and other tools necessary to press forward with the restoration goal of the statute. Third, we need to pursue the long-recognized statutory gap in redressing non-industrial forms of water pollution from a much wider range of sources than traditional industrial and municipal point source discharges. Finally, we need to revise our definitions of “waters” and “waters of the United States” to focus on the sustainability of aquatic ecosystems for human and natural uses, rather than on the antiquated concept of navigability.

Matt Festa

September 24, 2010 in Environmental Law, Environmentalism, Federal Government, Scholarship, Sustainability, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Thursday, September 16, 2010

USAID Launches "Global Waters" Newsletter

From Dr Rajiv Shah of USAID:

Global demand for freshwater is doubling every 20 years, yet water is becoming increasingly scarce in a number of countries, including many in the developing world.  As you all know well, water is central to the success of our sustainable development efforts.  Whether for domestic use, agriculture, industry, energy, or the environment, the availability of adequate supplies of good quality freshwater underpins the hopes and expectations of billions of people for improved well-being and affluence.

In his inaugural address, President Obama pledged to help the developing world address its water challenges. And last March, Secretary Clinton challenged USAID and the State Department to elevate our freshwater access efforts and to ensure that we look at these challenges in an integrated manner. Climate change, food security and global health issues are three of our top priorities, and water is integrally linked to each challenge.  In order to maximize the impact from our development investments we must enhance integrated programming, utilize smart science and innovation, build strategic partnerships, and learn from experience.

As one step on this path, I am pleased to announce the launch of Global Waters – the first newsletter dedicated to the broad portfolio of water-related activities of the United States Agency for International Development.  Through this new bi-monthly newsletter, we wish to share with you the many challenges and opportunities, and the approaches and lessons learned that reflect upon USAID programming in the water arena. Each issue will highlight the work of our many implementing partners, as well as some of the more intimate stories of how the Agency’s work directly affects individuals, families, and communities around the globe.

If you wish to receive Global Waters on a regular basis, I encourage you to subscribe today, and to share this with your colleagues and partners who may find this of interest.  You can do so by clicking on this link, where you will find the full newsletter and subscription details. I hope you will take time to peruse Global Waters and continue to help us build public support and understanding for these critical development challenges.

Jamie Baker Roskie

September 16, 2010 in Environmentalism, Globalism, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 17, 2010

Abandoned Farmland Slated for Solar Project

According to a recent story on NPR's Morning Edition, California has recently declared one of the most ambitious targets for renewable energy in the world - 1/3rd of its electricity from renewable sources by 2020.  (Sadly, Georgia has no currently goal.  No Southeastern state has, except North Carolina.)  However, like Cape Wind, struggles continue over siting renewable energy projects - like this solar project proposed in Central California.

However, according to a recent story in The New York Times, there are places where the siting of solar projects is popular with pretty much everybody - on abandoned agricultural land.

Thousands of acres of farmland here in the San Joaquin Valley have been removed from agricultural production, largely because the once fertile land is contaminated by salt buildup from years of irrigation.

But large swaths of those dry fields could have a valuable new use in their future — making electricity.

Farmers and officials at Westlands Water District, a public agency that supplies water to farms in the valley, have agreed to provide land for what would be one of the world’s largest solar energy complexes, to be built on 30,000 acres.  At peak output, the proposed Westlands Solar Park would generate as much electricity as several big nuclear power plants.

It's interesting that one environmental problem - saltwater intrusion from overpumping of the coastal aquafers - might contribute to another environmental solution - reduction of dependence on coal-fired power plants.  Anyway, it's nice to see a non-controversial renewable energy project, for a change.

Jamie Baker Roskie

August 17, 2010 in California, Clean Energy, Environmentalism, Georgia, State Government, Water, Wetlands, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Monday, August 16, 2010

Arnold on Sustainable Webs of Interest

Craig Anthony (Tony) Arnold (Louisville) has posted Sustainable Webs of Interest: Property in an Interconnected Environment, from PROPERTY RIGHTS AND SUSTAINABILITY: THE EVOLUTION OF PROPERTY RIGHTS TO MEET ECOLOGICAL CHALLENGES, David Grinlinton & Prudence Taylor, eds., Brill/Martinus Nijhoff, Forthcoming.  The abstract: 

Property issues arise in interconnected physical, social, and legal environments. All indications point to interconnections that are complex, far-reaching in scope, multi-scalar, dynamic, and nonlinear. Property institutions must adapt to these complexities and changing conditions. However, it has become apparent that the patterns and practices of our uses of land, water, and the environment are unsustainable ecologically and socially. While both legal and socio-cultural understandings of property are evolving, they remain hampered by the supposedly wealth-maximizing and production-maximizing concept that property is a bundle of rights, often based in a mental image of a “bundle of sticks,” with each stick in the bundle representing a different right or entitlement. An alternative concept of property is that property is a “web of interests,” in which property interests are defined by the particular characteristics of the object of the property (including natural features and environmental carrying capacity) and by the interconnected relationships that people, entities, and institutions form with respect to the particular object. This chapter discusses how the web of interests concept might facilitate a more ecologically and socially sustainable definition of property interests amid the realities of the interconnected environments in which property issues arise. The chapter gives particular attention to issues of land and water, and explores the implications of sustainable webs of interest in water.
I still rely heavily on the bundle-of-sticks metaphor for teaching, but I'm coming around to Tony's web-of-interests conceptualization.  Looks like a fascinating piece. 

Matt Festa

August 16, 2010 in Environmental Law, Environmentalism, Property Theory, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Monday, July 19, 2010

Benson on Modern-Day Reclamation Statutes

Reed D. Benson (New Mexico) has posted New Adventures of the Old Bureau: Modern-Day Reclamation Statutes and Congress' Unfinished Environmental Business, forthcoming in Harvard Journal on Legislation.  The abstract:

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address today’s water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant gap in the Bureau’s statutory powers by failing to provide general authority for restoration of ecosystems impaired by reclamation projects. This article reviews Congress’ expressed priorities for the reclamation program since 2002, identifies programmatic statutes intended to help the Bureau address the water issues of today’s West, examines the absence of general environmental restoration authority, and concludes with options for Congress to provide such authority.

Matt Festa

July 19, 2010 in Environmental Law, Federal Government, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Sunday, July 11, 2010

Saxer on the Fluid Nature of Property Rights in Water

Shelley Ross Saxer (Pepperdine) has posted The Fluid Nature of Property Rights in Water, forthcoming in Duke Environmental Law & Policy Forum (2010).  The abstract:

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Matt Festa

July 11, 2010 in Property Rights, Property Theory, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Friday, July 9, 2010

BP Blowout Lecture Series at Tulane Law

From Oliver Houck:

We will be preparing a series of background lectures on the BP blowout this fall at Tulane Law School, covering basic tech, engineering, science, law and policy issues.  They will set a stage for several courses on BP-related issues (environmental, admiralty, energy…), and for research projects for students interested in participating for credit.  The lectures may be of interest to you and your students as well, and we will set up a system to “stream” these lectures live to other schools, as you may wish (unfortunately, we cannot do Q and A with you from this classroom). We will also be happy to share ideas for related research topics, if and as you wish.

The program, subject to changes but at this point firm, is reflected in the notice that follows:
 
THE BP OIL SPILL LECTURE SERIES
TULANE LAW SCHOOL
FALL, 2010

OPEN TO ALL STUDENTS AND THE GENERAL PUBLIC 

The purpose of this series is to provide background on technical, scientific and policy aspects of the BP blowout, including deep water drilling; the blowout; the Gulf of Mexico ecosystem; oil, water and cleanup; containment responses; biological impacts; community impacts; legal issues; and policy implications beyond BP.  The lectures (with Q and A following) will take place in room 110 of the law school, 6329 Freret Street, New Orleans, on Monday afternoons, from 4 – 5:15 pm, with exceptions noted.  While Tulane law students may participate in this series for academic credit with the satisfactory completion of additional work, it is intended equally for all students and the interested general public.  There is, of course, no admission.  For further inquiry, please contact Professor Houck at ohouck@tulane.edu (after August 5) or Forest Wootten, 2L, fwootten@tulane.edu.

Jamie Baker Roskie

July 9, 2010 in Beaches, Coastal Regulation, Environmental Law, Oil & Gas, Teaching, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 7, 2010

Carp-Pocalypse?

We don't do a whole lot of fish-blogging over here, because, well, it is the Land Use Prof Blog.  But land use law and practice is becoming more and more entwined with water, wetlands, environmental, and ecosystem law and policy at all levels.  So some of you might be interested to hear about the impending Carp-Pocalypse: The Great Asian Carp Invasion Begins? from Time.

There's an underwater war underway in the Midwest – an offensive to keep the ravenous Asian Carp out of the Great Lakes. On Wednesday, it became clear: The carp are winning.

Late Wednesday night, the Associated Press reported that federal officials have, for the first time ever, discovered a carp swimming beyond the multiple electric barriers that were erected along the Chicago waterways to keep the fish out of the Great Lakes system. A 20-pound bighead carp was caught by a fisherman in Illinois's Lake Calumet, on the South Side of Chicago.

That's beyond the electric fence, and only six miles from Lake Michigan.

For decades, the carp have been making their way up the Mississippi, and then through Illinois rivers and canals that form an artificial link between the Mississippi Basin and the Great Lakes. The problems with this migration stem from the fact that the carp can grow into 4-foot-long, 100-pound monsters who devour 40 percent of their body weight daily. They destroy ecosystems by gorging themselves, and starving out other species.

I've always been interested in the history of canals, commerce, and the human endeavor to connect watersheds across the continent, but it seems there were some unintended downsides.

Matt Festa

July 7, 2010 in Chicago, Environmentalism, Sustainability, Transportation, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, May 27, 2010

Kilbert on the Public Trust Doctrine and the Great Lakes Shores

Kenneth Kilbert (Toledo) has posted The Public Trust Doctrine and the Great Lakes Shores, Cleveland State Law Review, Vol. 58, No. 1 (2010).  The abstract:

The shores of the Great Lakes are a battleground, and their future use is shrouded in uncertainty and controversy. Lakefront owners, armed with their deeds, assert an exclusive right to use their properties at least down to the water's edge. Members of the public, brandishing the venerable but amorphous public trust doctrine, claim a right to walk on even privately owned shores up to the high water mark. Courts to date have diverged widely, in approach and result, when deciding whether, and to what extent, the public has a right to use the Great Lakes shores.

This article proposes a uniform framework, grounded in the core principles of the public trust doctrine, for use in each Great Lakes state to ascertain the public right's to use the Great Lakes shores. This framework offers much-needed predictability, yet is flexible enough to allow each state to strike its own balance between public and private interests. The framework employs a principled, two-prong approach. First, it determines the geographic scope of the public trust doctrine applicable to the Great Lakes shores. Reconciling Supreme Court precedents, the framework provides that the geographic scope of the public trust in each state begins at a common starting point informed by the equal footing doctrine, and a state's ability to alter the scope is circumscribed. Second, the framework determines what public uses of the Great Lakes shores are protected by the public trust doctrine. Important, non-traditional public uses that do not unreasonably interfere with the rights of lakefront owners can be protected as well as the traditional uses of navigation, fishing, and commerce. Using as a focal point the controversy regarding the public's right to walk the Great Lakes shores, this article shows how the proposed framework is consistent with existing law in each of the Great Lakes states.

Matt Festa

May 27, 2010 in Beaches, Property Rights, Scholarship, State Government, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

Baltimore Public Works Museum

Earlier this month I was in Baltimore for the AALS Clinicians' Conference.  The conference itself was a really fantastic opportunity to learn and be with my fellow clinicians. This year the setting was also quite spectacular - we were at the Renaissance Hotel right in the Inner Harbor.

While walking in the area I've happened upon a little gem, previously unknown to me.  The Baltimore Public Works Museum is a fantastic historic building that is still part of the city's water and sewer system.  Unfortunately the museum is currently closed to the public, due to budget cuts.  I hope to visit it on a future trip to Baltimore, because I'm sure it's quite fascinating (at least to a land use geek like me).

Jamie Baker Roskie

PublicWorksMuseum

May 20, 2010 in Architecture, Conferences, Water | Permalink | Comments (0) | TrackBack (0)

Monday, May 17, 2010

Patashnik on Physical Takings, Regulatory Takings, and Water Rights

Josh Patashnik (JD Candidate, Stanford) has posted Physical Takings, Regulatory Takings, and Water Rights, forthcoming in the Santa Clara Law Review (2010).  The abstract:

Alleged takings of property are divided into two broad categories: physical takings claims, which are categorically subject to compensation, and regulatory takings claims, which are analyzed under the multi-factor Penn Central test and rarely result in compensation being paid. This Article addresses the question of whether alleged takings of water rights should be treated as physical or regulatory takings. It is an increasingly salient question in the West, where growing conflict between federal environmental laws and appropriative water rights has resulted in a proliferation of takings claims over the past decade. Because whether a claim is analyzed as a physical or a regulatory taking tends to be dispositive of the question of whether compensation must be paid, the legal issue is a critical one: millions of dollars and control over the region’s most precious natural resource are at stake. 

This Article is the first to comprehensively assess the merits of all the major rationales that have been offered for treating alleged takings of water rights as either physical or regulatory. Past scholarship has focused on just one or two of these rationales, usually in the context of a particular case or fact pattern. This Article takes a broader look and offers novel arguments demonstrating why there are serious conceptual problems with all of the major rationales that have been offered so far, on both sides of the debate. The thesis is a particularly timely one, since the Federal Circuit recently issued its decision in Casitas Municipal Water District v. United States, its first foray into this area and one of the most extensive judicial treatments of the issue offered to date. While the Article discusses the holding and implications of Casitas in detail, it also seeks to go well beyond that case and offer a broader thesis about how courts should treat alleged takings of water rights. My basic contention is that while water rights takings cannot fit straightforwardly as either physical or regulatory takings under current doctrine, treating them as physical takings – that is, applying a categorical takings rule requiring compensation when the government restricts any exercise of water rights otherwise permissible under background principles of state property law – is the most sound approach.

Matt Festa

May 17, 2010 in Scholarship, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Dehring & Depken on Watershed Regulation

Carolina A. Dehring (Georgia--Dept. of Insurance, Real Estate, Legal Studies) and Craig A. Depken (North Carolina--Charlotte, Business Admin/Economics) have posted Sharing the Burden of Water Supply Protection, in Regulation, Vol. 33, No. 1, pp. 36-40, Spring 2010 .  The abstract:

North Carolina law requires local governments to adopt zoning ordinances and land use restrictions for watersheds that feed water supplies. Watershed protection ordinances often contain minimum lot size restrictions that constrain development density in the watershed. This article examines vacant land prices in the Buncombe County, NC, Ivy River watershed before and after one of these ordinances was implemented in order to determine its effect on land prices. Its findings suggest that costs of watershed development restrictions are borne primarily by those vacant land owners in the watershed for whom the development restrictions make land subdivision infeasible. Conversely, property owners whose water supply is protected by these ordinances experienced an increase in property values. This suggests a transfer could be made that would compensate property owners harmed by this regulation.

Matt Festa

May 17, 2010 in Environmental Law, Local Government, Scholarship, Sun Belt, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 11, 2010

Victor Flatt Contrasts Deepwater Horizon and Cape Wind

Victor Flatt recently wrote an editorial for the Houston Chronicle entitled "Did a single week reverse energy fortunes forever?" in which he contrasts the fallout from the Deepwater Horizon explosion and the approval of Cape Wind.

The confluence of both these events also illustrates a move in the direction of the public good over the private good. Despite claims to the contrary, it is rarely the general public that is clamoring for more offshore oil drilling. While many people might like to have lower gasoline prices and reduced dependence on foreign oil, when the public actually sees the trade-offs in price, few make offshore drilling a priority. The political push for offshore drilling comes from the companies themselves, which realize profit through the recovery and processing of this product. Cape Wind also hopes to realize a profit, but it also has significant support from a public that wants to see viable greenhouse-gas-free energy become the norm. The public's clamor was enough to overcome even the most politically well-connected private opposition to Cape Wind, and this signals the breaking of a logjam. More and more approvals will be forthcoming, and this will transform the energy landscape.

Jamie Baker Roskie

May 11, 2010 in Beaches, Clean Energy, Federal Government, Oil & Gas, Water | Permalink | Comments (2) | TrackBack (0)

Monday, May 10, 2010

Legal Challenges Filed to Stop Georgia’s Coal Rush

From my colleagues at GreenLaw

Petitions Identify Major Flaws in Coal-fired Power Plant Permits

On May 10, 2010, attorneys from GreenLaw working with eight partner groups, filed petitions for hearings challenging permits for two major proposed coal-fired power plants in Georgia. In response to an unprecedented wave of permits issued by the state Environmental Protection Division (EPD) in April, the groups are fighting back with important claims against the water and air pollution permits proposed for Plant Washington, to be built in Sandersville, and against the air pollution permit for Longleaf Energy Station, to be built in Early County.

Longleaf, which is being contested by Friends of the Chattahoochee and the Sierra Club of Georgia, with representation from GreenLaw, is a project of New Jersey-based LS Power, which anticipates selling power to the highest bidders it can find.

In the 1200 mega-watt Longleaf permit, EPD classifies Longleaf as a minor source of pollution, while the 850 mega-watt Plant Washington (in a permit issued the day before) is classified as a major source. Listing Longleaf as a minor source allows the power plant to avoid critical requirements that would ensure that the plant operated in compliance with the law. EPD also failed to allow the public to comment on this decision. Attorneys objected on both grounds. EPD also granted Longleaf an extension on when it must begin construction. This extension will allow the plant to be built with outdated technology. Challengers are asking that EPD ensure that the permit is up-to-date.

Plant Washington, which is being contested by the Fall-line Alliance for a Clean Environment (FACE) and Sierra Club’s Georgia Chapter, as well as Altamaha Riverkeeper (for the water permit only), and Southern Alliance for Clean Energy (SACE) and Ogeechee Riverkeeper (both organizations for the air permit only), is a project of Power4Georgians, a company composed of Cobb EMC and four other EMCs. The Southern Environmental Law Center is co-counseling on the Plant Washington petitions.

The Plant Washington air permit fails to set safe limits on harmful air pollutants that would be emitted by Plant Washington, including sulfuric acid mist and particulate matter. Particulate matter is linked to respiratory illnesses, heart disease and even premature death.

The state water withdrawal permit fails to set necessary limits on the amount of water the plant can take from the Oconee River for use at the proposed plant located in the Ogeechee River watershed. Without adequate limits, communities such as Dublin, area farms and other downstream users along the Oconee River would be left without sufficient water resources.

The state water discharge permit fails to limit the temperature of heated wastewater discharged by the proposed plant into the Oconee River, changing the river’s ecology, depleting available oxygen in its waters, and harming fish and other wildlife that depend on the river system.

Georgia already has 10 coal-fired power plants, one of which, just north of Macon, is Plant Scherer, often cited as the most polluting coal-fired plant in the nation. The EPD has seven days to send the cases to the Office of State Administrative Hearings, where they will be assigned to administrative law judges. Court dates are expected later this summer. Links to the petitions are at www.green-law.org.

Jamie Baker Roskie

May 10, 2010 in Environmental Law, Georgia, Water | Permalink | Comments (0) | TrackBack (0)

"One Stop" Web Site for Gulf Oil Spill

From Robin Craig at Florida State:

A fairly impressive collection of departments and centers among the Florida
universities are putting together what should become a very helpful one-stop web
site for information on the Gulf spill, hosted (so far, at least) on Florida
State's web site.   Soon there will be links to specific information on
ecological impacts, economic costs, the scope and path of the spill, underwater
and surface photos, data sets, and a legal page (I authored the draft of that
today), all with links to further information.

 The site was officially launched this afternoon and will be growing
quickly.  If you're interested in following events, I'd recommend bookmarking
the page and checking back frequently as the site develops.

See the Oil Spill Academic Task Force website here.

Jamie Baker Roskie

May 10, 2010 in Beaches, Environmentalism, Oil & Gas, Water | Permalink | Comments (0) | TrackBack (0)

Monday, May 3, 2010

Klein on the Dormant Commerce Clause and Water Export

Christine A. Klein (Florida) has posted The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011).  The abstract:

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska. Determining that groundwater is an article of commerce, the Court held invalid under the dormant commerce clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of its application for a permit to acquire water from Arizona.

This article examines the Dormant Commerce Clause as it applies to water export, identifying factors that have influenced the courts’ legal opinions. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause – whether water is an article of commerce – into the context of the Clause’s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty five years, this paper argues that courts should no longer rely upon Sporhase’s water-as-article-of-commerce mantra. Instead, this article suggests a new analytical paradigm, the “water continuum.” More broadly, this article examines evidence from the Court’s Dormant Commerce Clause jurisprudence involving other natural resources – specifically, landfill space – that suggests the Court may be poised to make a radical shift, abandoning the Dormant Commerce Clause entirely.

Matt Festa

May 3, 2010 in Constitutional Law, Scholarship, State Government, Supreme Court, Water | Permalink | Comments (0) | TrackBack (0)

Thursday, April 1, 2010

Red Clay Conference

Last Friday was UGA's annual Red Clay Conference.  This student-organized conference is always a blast, and I often have the honor of moderating a panel.  The conference gets its name from the red Georgia clay, and the theme is always environmental.  This year's theme was "Three States, One River: Exploring the Tri-State Water Dispute."  The three states are Alabama, Florida and Georgia, and the river is actually a river system, the Apalachicola, Chattahoochee, Flint. 

I wasn't able to stay for the whole day, but in the morning I sat in on a fascinating presentation by participants in a stakeholder negotiation process that is happening alongside the (inevitable, it seems, for these types of water resource disputes) litigation.

Then I moderated a panel called "Is Atlanta Really the 800 Pound Gorilla?"  As you might imagine, this is a loaded question.  There is much controversy in the region about how to allocate water resources to provide drinking water for Atlanta, water for power generation for Alabama, and sufficient water supply to protect the ecosystem (and fishing industry) in Florida.  Our distinguished panelists included the lawyers who represent Atlanta and the State of Georgia in current litigation over Lake Lanier (which until a recent court decision was a primary water source for several counties and municipalities in North Georgia.)  Needless to say, it was a lively discussion.  My friend and colleague Gil Rogers from Southern Environmental Law Center was an audience favorite, and not just because he does comedy improv in his off hours. SELC has done some great work on the tri-state dispute over the years.  At any rate, all the panelists were incredibly articulate, passionate, and interesting.

The keynote speaker was Joseph Dellapenna of Villanova University School of Law who spoke about potential ways forward in the dispute.  The most interesting, and least practical, option he discussion was that the US Supreme Court could settle the dispute if it was asked to exercise original jurisdiction over a dispute between states. (Blast to Civil Procedure past, anyone?)  However, since they've been litigating that case since the 1920s, that's probably not the most expedient solution.

Jamie Baker Roskie

April 1, 2010 in Conferences, Environmental Law, Environmentalism, Federal Government, Georgia, Sun Belt, Water | Permalink | Comments (0) | TrackBack (0)