PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Tuesday, January 19, 2010

Houston Symposium on Climate Change, Water, and Adaptive Law

The University of Houston Law Center and the Environmental & Energy Law & Policy Journal are pleased to announce a Symposium on Climate Change, Water, and Adaptive Law to be held on Friday, February 26, 2010, from 8:00 a.m. to 5:00 p.m. at the Czech Center Museum, 4920 San Jacinto, Houston, Texas 77004.  Leading experts from diverse universities, disciplines, professional backgrounds, and policy making roles will address how law and the legal system need to adapt to address the impacts of climate change on water resources and regimes, and the extent to which it can.

Speakers include:

Panel on State and Local Adaptation to Climate Change’s Impacts on Water:

1. Robin Kundis Craig, Attorneys’ Title Professor and Associate Dean for Environmental Programs, Florida State University College of Law (Opening Presentation of the Symposium)

2. Noah Hall, Assistant Professor of Law, Wayne State University Law School; Visiting Professor, University of Michigan Law School; Executive Director, Great Lakes Environmental Law Center

3. Craig Anthony (Tony) Arnold, Boehl Chair in Property & Land Use, Professor of Law, Affiliated Professor of Urban Planning, Chair of the Center for Land Use & Environmental Responsibility, University of Louisville; Symposium Visiting Professor, University of Houston Law Center

4. Kathleen Miller, Scientist III, Institute for the Study of Society and the Environment, National Center for Atmospheric Research

5. Daniella Landers, Shareholder, The Sutherland Law Firm, Houston, TX

Luncheon Keynote Speech:  The Hon. Eliot Shapleigh (D-El Paso), Texas State Senate

Panel on Energy, Climate Change, and Water: The Complex Intersection

1. A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Illinois Institute of Technology

2. Lea-Rachel Kosnik, Assistant Professor of Economics, University of Missouri-St. Louis; Dispute Resolution Panel Member for Federal Hydropower Dam Relicenses, Federal Energy Regulatory Commission

3. Amy Hardberger, Attorney, Environmental Defense Fund, Austin, TX

4. Elizabeth Burleson, Assistant Professor of Law, University of South Dakota School of Law; Consultant, United Nations

5. Scott Deatherage, Partner, Environmental Law Section, & Practice Group Leader, Climate Change & Renewable Energy Practice Group, Thomspon & Knight, LLP, Dallas, TX

Symposium Description: "Water use and climate change share a complex, dynamic, multiscalar interdependence.  Water use contributes to climate change in the energy used to transfer water substantial distances, the destruction of carbon-sequestering vegetation and erosion of soils (and the subsequent release of greenhouse gases into the atmosphere) from too much or too little water, and the facilitation of sprawling (and arguably unsustainable) development, among other relationships. Hydropower has been suggested as an alternative energy source that reduces emission of greenhouse gases, but poses a variety of other ecological and social concerns.  Perhaps most importantly, climate change will affect water supplies and watersheds, contributing to water scarcity, rising sea levels, saltwater intrusion into groundwater, more severe storm-event cycles that alter watershed hydrology, and changes to riparian vegetation and stream structures that similarly alter watershed functioning and composition.  This symposium will address the capacity of water law to adapt to the changing, uncertain, and potentially extreme demands and stresses that climate change -- and our responses to climate change -- will put on water resources."

For more inhttp://www.law.uh.edu/eelpj/symposium.html, or contact Chief Symposium Editor/Director - Lisa Baiocchi-Mooney, lcbaiocc@central.uh.edu.  The Symposium will offer 8 hours of CLE credit for the State of Texas.

January 19, 2010 in Conferences, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

Bronin on Solar Rights and Modern Lights

Sara C. Bronin (U Conn) has posted two related articles on SSRN.  The first is Solar Rights:

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.

The second is Modern Lights:

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.

Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.

Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.

A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

 

 

September 29, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 27, 2009

Rule on Allocation of Wind Rights

Troy A. Rule (Missouri) has posted A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights on SSRN.  Here's the abstract:

The rapid pace of U.S. wind energy development is generating a growing number of conflicts over competing wind rights. The “wake” of a commercial wind turbine creates turbulence and unsteady wind flow that can reduce the productivity of other wind turbines situated downwind. Existing law is unclear as to whether a landowner who installs a wind turbine on its property is liable for the lost productivity of a downwind neighbor’s turbine resulting from such wake effects. Legal uncertainty as to how competing wind rights are shared among neighbors can induce wind energy developers to abandon otherwise lucrative turbine sites situated near property lines, thus forfeiting valuable wind resources. This paper applies Calabresi and Melamed’s familiar “Cathedral” model to determine which rule regime would best promote the efficient allocation of competing wind rights while maintaining consistency with existing law. Surprisingly, the Cathedral model’s infamous and rarely-applied “Rule Four” seems best-suited for addressing these conflicts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 27, 2009 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Serkin on Private Conservation Easements and Public Land

Christopher Serkin (Brooklyn) has posted Entrenching Environmentalism: Private Conservation Easements Over Public Land on SSRN.  Here's the abstract:

This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside of public law, and identifies anti-entrenchment protections designed to prevent the worst abuses. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench an anti-development agenda.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 27, 2009 in Land Use, Natural Resources, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, September 24, 2009

Blumm on the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) has posted The Public Trust Doctrine: A Twenty-First Century Concept on SSRN.  Here's the abstract:

This article briefly surveys the evolution of the public trust doctrine in 19th and 20th century America and discusses some notable recent developments, particularly in the doctrine's scope. It also discusses a treatise project on the public trust doctrine the author is undertaking with a colleague as well as three recent student publications the project has produced on the federal common law nature of the doctrine, its applicability to uplands like parks and beaches, and the adoption of the doctrine in the 2008 Great Lakes Compact. The article serves as an introduction to the publication of two of those articles.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 24, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 22, 2009

Rule on Solar Access Laws

Troy A. Rule (Missouri) has posted Shadows on the Cathedral: Solar Access Laws in a Different Light on SSRN.  Here's the abstract:

Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate effectively, solar panels require un-shaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statutory approaches to protecting solar access for such landowners vary widely across jurisdictions, and some approaches flatly ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the constraints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to evaluate a model solar access statute recently drafted under funding from the US Department of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 22, 2009 in Land Use, Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 21, 2009

McLaughlin on Land Trusts and Biodiversity

Nancy A. McLaughlin (Utah) has postedThe Role of Land Trusts in Biodiversity Conservation on Private Lands on SSRN.  Here's the abstract:

This short article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.

Short and sweet!

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 21, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 28, 2009

Barnes on Property and Natural Resources

Richard Alan Barnes (University of Hull) has posted Property Rights and Natural Resources on SSRN.  Here's the abstract:

The use of private property rights to regulate natural resources is a controversial topic because it touches upon two critical issues: the allocation of wealth in society and the conservation and management of limited resources. This book explores the extension of private property rights and market mechanisms to natural resources in international areas from a legal perspective. It uses marine fisheries to illustrate the issues that can arise in the design of regulatory regimes for natural resources. If property rights are used to regulate natural resources then it is essential that we understand how the law and values embedded within legal systems shape the development and operation of property rights in practice. The author constructs a version of property that articulates both the private and public function of property. This restores some much needed balance to property discourse. He also assesses the impact of international law on the use of property rights - a much neglected topic - and shows how different legal and socio-political values that inhere in different legal regimes fundamentally shape the construction of property rights. Despite the many claimed benefits to be had from the use of private property rights-based management systems, the author warns against an uncritical acceptance of this approach and, in particular, questions whether private property rights are the most suitable and effective arrangement means of regulating of natural resources. He suggests that much more complex forms of holding, such as stewardship, may be required to meet physical, legal and moral imperatives associated with natural resources.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 28, 2009 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 26, 2009

Ruhl and Craig on Governance Institutions for Estuaries and Coasts

J. B. Ruhl and Robin Kundis Craig (Florida State) have posted New Sustainable Governance Institutions for Estuaries and Coasts on SSRN.  Here's the abstract:

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 26, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ruhl and Craig on Governance Institutions for Estuaries and Coasts

J. B. Ruhl and Robin Kundis Craig (Florida State) have posted New Sustainable Governance Institutions for Estuaries and Coasts on SSRN.  Here's the abstract:

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 26, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 30, 2009

Property in Rain

Yesterday's NY Times has a fun story about a change in Colorado law that now makes it permissible for owners to collect rain that falls on their property.  A taste:

For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.  Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. . . . 
.
Science has also stepped forward to underline how incorrect the old sweeping legal generalizations were.

A study in 2007 proved crucial to convincing Colorado lawmakers that rain catching would not rob water owners of their rights. It found that in an average year, 97 percent of the precipitation that fell in Douglas County, near Denver, never got anywhere near a stream. The water evaporated or was used by plants.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

June 30, 2009 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2009

Appel on Wilderness and the Judiciary

Peter A. Appel (Georgia) has posted Wilderness and the Judiciary on SSRN.  Here's the abstract:

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies' decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies and numeric information from all of the cases decided under the 1964 Wilderness Act. The numbers reveal three striking facts. First, a two-fold gap exists between agency success rates in litigation depending on who brings the challenge and the type of challenge it is. Second, the agencies tend to lose in challenges brought by environmentalists more often than not. Third, the party of appointment for the judges does not appear to affect overall distribution of their votes as measured on a simple "pro-wilderness"/ "anti-wilderness" axis. After providing some possible explanations for this apparent one-way judicial ratchet favoring wilderness protection-some of which will be examined more thoroughly in future work-the Article offer some observations about whether such a one-way ratchet will always benefit wilderness restoration and protection.

Ben Barros

[Comments are held for approval, so there is some delay in posting]

March 17, 2009 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Wednesday, November 19, 2008

Montana S. Ct. Resolves Mitchell Slough Dispute

The Montana Supreme Court resolved a long-running water rights dispute, which focused on whether the Mitchell Slough was a natural watercourse:

In a case with statewide implications, the Montana Supreme Court ruled Monday that Mitchell Slough is open to recreation under the state's stream access law.

The court said the 16-mile-long slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways.

The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a “natural, perennial-flowing stream. . . .

Since nearly every river and stream in Montana has been affected in some manner by man, the high court concluded: “The District Court's dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed natural, results in an absurdity: For many Montana waters, the SAL would prohibit the very access it was enacted to provide.”

The Supreme Court also overturned the lower court's conclusion that the water captured by the slough in return flows from irrigation was “artificial” and “not natural,” saying that many Montana streams carry discharged irrigation flows.

The court also disputed landowners' claims the slough was a “man-made water conveyance system” that exists only because of man's manipulations.

“The claim that man has made the Mitchell Slough is a bold one, indeed,” the court's decision reads.

The court did offer a caveat on the issue of public access.

The slough runs through private property and the public only has the right to recreate under the terms of the state streamside access law, which allows access on the water and up to the ordinary high-water mark on the slough's bank, the court said.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

November 19, 2008 in Natural Resources, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 5, 2008

Teaching Natural Resources Law in First Year Property

The paper on drilling in the Marcellus Shale mentioned in the previous post is very timely -- I just did a short unit on ownership of water and natural resources in my first-year Property class.  This was the first time that I've covered natural resources in Property.  I thought it worked very well, and brought out some very important issues (e.g., that the mineral estate generally is dominant over the surface estate).  I know that it is hard to cover more material in the ever-shrinking first-year course, but I thought that the mineral and water issues were worth the hour or two it took to discuss them.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

November 5, 2008 in Natural Resources, Teaching | Permalink | Comments (1) | TrackBack (0)

Bollinger on Marcellus Shale

Justin Bollinger has posted Marcellus Shale Exploration & Farmland Preservation in Pennsylvania on SSRN.  Here's the abstract:

The recent boom in drilling for natural gas in the Marcellus Shale formation, hidden deep below the surface in parts of northern and western Pennsylvania, New York, Ohio, West Virginia, and Maryland, will undoubtedly have immediate and lasting consequences for countless acres preserved through Pennsylvania's Farmland Preservation Program, private land trusts, and tax incentive programs such as the Clean and Green Act. Many Pennsylvania farms preserved through these programs are likely to encounter pressure to permit drilling on preserved farms if such tracts are located in areas with high concentrations of natural gas. The Farmland Preservation Program, as it was originally enacted, does not prohibit drilling for natural gas on preserved land. Consequently, farmers have had the option to allow drilling on their preserved farms, which some have allowed. However, the recent increase in drilling activity has raised concerns with the Farmland Preservation Program, farmers, and those concerned with conservation that such drilling may inhibit the goals of the preservation program. On the other hand, the added source of income may be a way for farming families to pay off outstanding debt associated with their agricultural operations and to pass the farm on to the next generation without having to sell or subdivide land to residential or commercial developers.

This paper will discuss the intersection of these two topics, drilling and farmland preservation, specifically addressing a handful of Pennsylvania preservation programs and laws and the ways that each program seeks to deal with drilling on preserved land. Additional questions such as whether the current preservation programs and laws are consistent with the policy objectives underlying the programs, whether the programs are consistent with one another in furthering preservation, and whether the current programs could benefit from the recent increase in drilling, will also be incorporated. Also, the approach of neighboring states will be addressed as a way to suggest some possible ways for Pennsylvania to clarify its position on drilling for natural gas on preserved farmland in order to create a consistent approach from a policy perspective.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

November 5, 2008 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2008

Morriss on Politics and Property in Natural Resources

Andrew P. Morriss (Illinois) has posted Politics & Property in Natural Resources on SSRN.  Here's the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 13, 2008 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2008

Moose, Free For the Taking

From Craigslist:

I have a dead moose free for the taking.

It died yesterday, apparently of natural causes. I called Fish & Game to come and get it. Apparently, moose are a natural resource and belong to everybody, until they die, then they belong to whoevers property they die on. So, according to Fish & Game, the moose now belongs to me. Sweet!!

So, if you want a free moose, please come and get it before the bears do.

You could use it for dog food, or stuff it and put it your front yard, bear bait, whatever. If you live in the lower 48, this might be your best opportunity to get a free Alaska moose. I dont really care, I just want it out of my yard.

Please reply via email, I dont need all the animal rights folks calling me, its dead, and according to Fish & Game, its got no more rights...

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 24, 2008 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2008

Chouinard and Steinhoff on Split-Estate Negotiations

The most recent issue of the Review of Law & Economics has an article by Hayley H. Chouinard and Christina Steinhoff (Washington State) called Split-Estate Negotiations: The Case of Coal-Bed Methane.  Here's the abstract:

Coal-bed methane is an emerging contributor to the US energy supply. Split estates, where landowners control the surface and the energy companies lease the rights to the underground gas from the federal government, often impede successful negotiations for methane extraction. We provide an extensive form representation of the dynamic game of the negotiation process for subsurface access. We then solve for a set of Nash equilibrium outcomes associated with the split estate negotiations. By examining the optimal offers we can identify methods to improve the likelihood of negotiations that do not break down and result in the gas developer resorting to the use of a bond. We examine how changes in transaction costs or entitlements will affect the outcomes, and support our finds with anecdotal evidence from actual negotiations for coal-bed methane access.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

September 16, 2008 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2008

Two from Smith

Henry E. Smith (Yale) has posted two new articles on SSRN.

Community and Custom in Property

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This paper provides an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can piggyback on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e. outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Governing Water: The Semicommons of Fluid Property Rights

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

June 26, 2008 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 20, 2008

Rose on Public Infrastructure and Environmental Resources

Carol M. Rose (Arizona) has posted Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources on SSRN.  Here's the abstract:

Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

June 20, 2008 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)