Thursday, August 6, 2015
Amanda Ashley (Boise State) & Michael Touchton (Boise State) have posted Reconceiving Military Base Redevelopment: Land Use on Mothballed U.S. Bases (Urban Affairs Review) on SSRN. Here's the abstract:
The U.S. Department of Defense has closed 128 domestic bases over the last 30 years through the Base Realignment and Closure Process. Current scholarship describes this process and provides snapshots of transition, yet there is very little systematic knowledge of what follows base closure. We introduce an original data set chronicling military base redevelopment and present evidence suggesting that the variation in the built environment on former military bases stems from considerations somewhat unique to military redevelopment, particularly the presence of federal funding, contamination of redevelopment parcels, and economic output in the surrounding county. Our arguments offer new directions for redevelopment scholarship and a first step for developing best practices to help cities redevelop mothballed bases.
Wednesday, August 5, 2015
Landlords will face £3,000 penalties for failing to monitor the immigration status of their tenants or lodgers, as part of “right to rent” requirements that will apply across England within months.
A trial of “right to rent”, introduced in the West Midlands in December, has resulted in one fine being issued to a landlord, who is appealing the near-£2,000 sum, according to sources.
Landlords and letting agents in the West Midlands – including Birmingham, Wolverhampton, Walsall and Dudley – must already check the nationality and visa status of their tenants. Penalties are issued per tenant who is living in a property who has no right to rent.
Critics fear the legislation, which is expected to be rolled out to the rest of England in September, places an “unfair burden” on landlords who may lack the knowledge or skills to check if their tenants are allowed to live in Britain.
Hannah Wiseman (Florida State) has posted Written Testimony for 'The Future of Hydraulic Fracturing on Federally Managed Lands' (Congressional Testimony) on SSRN. Here's the abstract:
The Bureau of Land Management's rule for hydraulic fracturing on federal lands ("Oil and Gas; Hydraulic Fracturing on Federal Indian Lands," or the "HF Rule"), issued in March 2015 after two drafts and extensive comment, takes a modest approach to regulating some of the impacts of oil and gas development on these lands. It requires, inter alia, more testing of wells to ensure that they were properly lined ("cased") and cemented and remedial action where cementing was inadequate; testing of the wells to ensure well integrity prior to hydraulic fracturing; storage of fracturing flowback waste in tanks rather than pits, with exceptions; and disclosure of the fracturing chemicals and water sources used, among other disclosures. The rule, which primarily requires information disclosure and not substantive operational changes, falls squarely within BLM's statutory authority under the agency's organic act, the Federal Land Policy and Management Act, and under the Mineral Leasing Act, among other acts. FLPMA directs BLM to manage public lands and resources for multi-use development, including "a combination of balanced and diverse resource uses," and it is an express policy of Congress to protect "water resource . . . values" on federal lands under FLPMA. Further, the MLA directs BLM to regulate "in the interest of conservation of surface resources" and prohibits the waste of oil and gas resources. Under these acts, regulations issued by BLM's predecessors in 1920 required operators to submit information on the kind, length, and size of well casing used and to correct conditions causing damage to other oil and gas and water-bearing formations. Similarly, a 1942 regulation allowed BLM's predecessor to require operators to notify USGS of a plan prior to well stimulation (including prior to the injection of water and other substances into the well) and to require operator submittal of a casing program. Casing and cementing protect both surface and underground water and avoid waste of oil and gas if installed properly, and flowback tanks help prevent spills of fracturing waste, thus protecting surface soil and water and underground water resources that could be impacted by wastes seeping through soil.
Further, other federal statutes do not preclude BLM from regulating oil and gas development and fracturing under FLPMA, the MLA, and other acts. The Safe Drinking Water Act exempts non-diesel fracturing from SDWA regulation only "[f]or purposes of this part," and the legislative history expressly states that Congress did not "intend any of the provisions of this bill [the SDWA] to repeal or limit any authority" of BLM's predecessor. BLM does not base its authority to regulate oil and gas development or fracturing on the SDWA, relying instead on its responsibilities under FLPMA, the MLA, and other acts. Contrary to suggestions made in North Dakota's and Utah's challenges to the HF Rule, nor do the states rely on their SDWA regulatory primacy when they regulate the drilling and fracturing of oil and gas wells. States rely on SDWA authority only to regulate disposal wells, and they rely on police powers/public welfare authority to regulate drilling and fracturing. The HF Rule does not impact states' regulatory primacy under the SDWA to regulate underground injection wells for the disposal of oil and gas wastes, and it does nothing to prevent states from regulating oil and gas drilling and fracturing more stringently than the HF Rule "floor." Finally, the HF Rule is more stringent than many state regulations -- most western states do not require tanks for the storage of flowback, for example -- and where it is less stringent than state regulations, states remain free to regulate above the federal BLM floor without having to receive a variance or any other permission from BLM. Despite the seemingly modest nature of the rule and the apparently strong statutory support for the rule, the United States District Court for the District of Wyoming postponed the effective date of the rule pending the court's ruling on states' and industry's motions for preliminary injunction. The Southern Ute Indian Tribe has also filed a complaint.
Amanda Reid (Florida Coastal) has posted Place, Meaning, and the Visual Argument of the Roadside Cross (Savannah Law Review) on SSRN. Here's the abstract:
Roadside memorials are cenotaphic in so far as they honor a person whose corporeal remains lie elsewhere. They powerfully express the pathos of loss felt by the bereaved. These memorials are part of a global phenomenon where kith and kin create spontaneous shrines to deceased loved ones. And they are intensely personal, idiosyncratic expressions of loss and remembrance.
Death and grieving have escaped the socially acceptable zone of the cemetery and are now confronting others as they go about their daily lives — commuting along our nation’s roadways. Part I examines how some bereaved are sanctifying public spaces by erecting private memorials. These memorials are places of remembrance, of pilgrimage, and of warning. They are heterotopic sites that simultaneously seek to keep a relationship with the deceased alive and to bring healing and closure to the grieving process.
Yet this use of public space for private grief is not without contest. These private memorials, which often employ sectarian symbols, can create unwanted vicarious trauma, traffic safety hazards, and Establishment Clause concerns, which are discussed in Part II. Part III explores the visual argument of ventilating private grief on public spaces. Roadside crosses are a means to resist the erasure of a loved one. Individually, the crosses make the visual argument that the deceased was valuable, and he is missed. Collectively, the phenomenon is a critique of modern transportation, modern culture, modern death practices, and modern religion.
But by allowing these crosses to remain and proliferate along the roadside, is there a mixed message sent on behalf of both the memorial maker and the government? Part IV reviews current Establishment Clause jurisprudence relevant to roadside crosses. And Part V addresses the rhetorical effect of the Latin cross and Establishment Clause concerns to religious outsiders. The unresolved question is what the reasonably well-informed observer concludes. This Article provides background and context to inform the hypothetical Establishment Clause observer.
Tuesday, August 4, 2015
The Washington Post has a great story on the end of a profoundly complicated border problem between India and Bangladesh:
An agreement for a land swap was reached in 1974, but India did not ratify it. In 2011, however, a new agreement was reached, which, after some stalling, was finally ratified in June. The enclaves will become territory of the states that surround them and the citizens who live within them will get to decide whether they want to stay put and accept new citizenship, or whether they want to keep their original citizenship and be relocated.
Problem solved for the people of Dahala Khagrabari? Not exactly. Some exclave residents say that they were left out of government surveys and worry they will not be able to choose their citizenship or keep their land. Some families within Dahala Khagrabari are being split as they choose different citizenships. Technically, one the world's strangest border disputes may be solved, but on the ground it is likely to be far more complicated.
Monday, August 3, 2015
Ugh. I've just received the gutting news that Marc Poirier has passed away. Marc was a stalwart of the property community: creative, involved, generous with his time, and extremely kind to young scholars. He will be missed.
Thanks to Ezra Rosser for passing along the news.
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
1. [170 downloads] Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure
Christopher K. Odinet (Southern)
2. [163 downloads] Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
Robert T. Anderson (Washington)
5. [107 downloads] The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection
Maureen E. Brady (Yale)
6. [96 downloads] The Digital Legacy Conundrum: Who Really Owns What?
Craig Dickson (Auckland U. of Tech.)
Friday, July 31, 2015
An Ohio couple is fighting with their local government over whether they can keep their lawn unmowed. They appear to have a pretty good case:
The township doesn’t actually have a specific ordinance that the Ohio couple are violating, reports say. The township’s zoning inspector says that he can have a landscaping company come onto the couple’s yard and mow it at the couple’s expense under a very broad and nonspecific nuisance ordinance. The township trustees claim that the couple’s yard is a risk to the community’s health, welfare and safety. According to The Columbus Dispatch, neighbors have never even complained.
“We’re a land of laws,” Trustee Randal Almendinger told the couple. “We have to adhere to them, too. We have to do what we’re told to do.”
Almendinger says that the law is to eradicate whatever the township trustees decide is a nuisance, and since the laws don’t define what constitutes a nuisance, The Columbia Dispatch reported, “The trustees said their only recourse is to rely on the wisdom of their longtime zoning inspector, Tom Frederick.”
Slate has a handy calculator to help you figure it out. Some background on their definition of gentrification:
Most experts consider a neighborhood to be gentrifiable if its incomes are in the bottom half or quarter of the income distribution of a metropolitan area, she explained in an email to Slate. If the incomes of such a neighborhood are rising faster than incomes citywide, the area is undergoing gentrification. Some researchers have traced changes in educational or racial demographics as proxies for gentrification. For the purposes of this calculator, Ellen suggested this formula: If your neighborhood’s median income is lower than the median income of your city, and your income is higher than your city’s median, you’re a gentrifier.
Rigel Oliveri (Missouri) has posted Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis (Missouri Law Review) on SSRN. Here's the abstract:
The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination.
St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis.
This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.
Wednesday, July 29, 2015
From the Atlantic Cities Blog:
Today, the Vatican welcomes more than 60 mayors from around the world. The eclectic agenda covers mayoral efforts to combat climate change as well as modern forms of slavery. Many of the mayors will stay the next day for a second conversation about how cities fit into the world’s new Sustainable Development Goals meant to guide development work around the globe for the next 15 years.
The mayors will see a Vatican that—even before Francis—has been quietly putting together a record of urban innovation. The initiatives are happening partially within the walls of the tiny city-state itself. But they’re also happening across the broader metropolitan area of Rome, where the Pope heads the local diocese of the Catholic Church, and where the Vatican holds a unique spiritual, political, and economic influence over local affairs.
Avi Bell (San Diego) & Gideon Parchomovsky (Penn) have posted Of Property and Information (Columbia Law Review) on SSRN. Here's the abstract:
The property-information interface is perhaps the most crucial and under-theorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, dearth of information can significantly reduce the benefit associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage in sustained analysis of the property-information interface and in particular of registries — the repositories of information about property.
Once, things were different. In the past, discussions of registries used to be a core topic in property classes and a focal point for property scholarship. In recent decades, registries have lost their luster for scholars, and their discussion has been relegated to the innermost pages of property textbooks. The reason for this is that registries are widely considered the domain of legal practitioners, not of theorists.
We argue that nothing could be further from the truth. Registries and the information they contain are, in fact, the formative forces that shape the world of property and no theoretical account of the institution of property can be complete without them. In this Essay, we offer the first in-depth legal-theoretical analysis of the intricate relationship among title information, rights and assets in the domain of property, as mediated by registries.
Our analysis gives rise to several new insights. First, we highlight the triple role that registries perform for property owners. They simultaneously perform a facilitative role by streamlining transactions between willing sellers and buyers, an obstructive rule by hindering non-consensual encroachments and takings of assets, and an enabling role by allowing owners to locate and use their own lost assets. Second, going against the accepted lore, we posit that perfect registries, even if they were possible, are socially undesirable on account on what we call “the information/asset paradox.” Perfect information about assets and legal rights may result in the destruction, dismembering and mutilation of the asset by non-consensual takers in an attempt to make the asset unrecognizable, as exemplified by millions of stolen cars and jewelry, or, conversely, to attempts to engage in “identity theft” in order to give thieves the benefit of the registered rights. Third, we argue that the registries are socially desirable when it is impossible or difficult to alter the defining characteristic of the underlying asset. This insight explains why there are registries for non-transformable assets, such as land and unique artworks, but not for transformable assets that include mass production goods and many natural resources. Finally, we address the question of which rights should be covered by registries and how much legal deference should be given to them.
The framework we provide is significant not only theoretical reasons, but also for practical ones. For example, it can inform policymakers in deciding whether to establish new registries for smart-phones and personal computers in order to combat theft of such devices. Similarly, our analysis sounds a cautionary note about the ability of registries of copyrighted works to curb unlawful appropriation and distribution. Per our analysis, such assets are infinitely malleable and, worse yet, information concerning ownership in such works can be easily effaced or altered in the digital age. We also discuss how considerations of costs and privacy affect the comprehensiveness and integrity of registries. At the end of the day, our analysis exposes the promise and the limitations of registries, as well as the ways in which they can be improved by the state.
Monday, July 27, 2015
Michael Lewyn says no:
According to a New York Times article about the evils of foreign investment in New York housing, "About $8 billion is spent each year for New York City residences that cost more than $5 million each." Using the magic of long division, I calculate that even if each residence cost only $5 million and not a penny more, there would be 1600 such residences. In fact, some residences cost far more, so the actual number if super-expensive residences is lower (and of course, the number of such residences purchased by foreigners is lower still). In a city with 8 million people (and thus a few million households), a thousand or so really rich people seems to be like a drop in the bucket, even if their wealth does give them disproportionate influence and notoriety.
Moreover, it seems to me that if New York was really flooded with millions of foreign billionaires, housing prices would be even more expensive than they are. During my last year in New York (2013-14), I lived in a 448-square-foot studio in Midtown and paid $2330 a month in rent (The same apartment would cost $2680 today). This rent is very expensive by the standards of Planet Earth—but by the standards of Planet Foreign Billionaire Oligarch (FBO), it is nothing. What self-respecting FBO lives in a 450 square foot studio? And what self-respecting FBO pays less than $3000 in rent? I don't know how much FBOs make, but I'm guessing that the median FBO income was at least $10 million per year (1 percent interest of $1 billion in wealth)—which means that any self-respecting FBO should be able to afford $60,000 per month (the price of the most expensive New York apartment I found on zillow.com).
Jefferson-Jones on Using Historic Preservation Laws to Halt the Destruction of 'Porch Culture' in New Orleans
Jamila Jefferson-Jones (UMKC) has posted Using Historic Preservation Laws to Halt the Destruction of 'Porch Culture' in the Lower Ninth Ward of New Orleans on SSRN. Here's the abstract:
One Saturday in May, 2014, I visited the Lower Ninth Ward neighborhood of New Orleans with a group of my law students. The students had spent Monday through Friday volunteering with pro bono legal service providers throughout the City as part of the Law School’s annual mission trip and were going to spend that Saturday working on some rebuilding projects in the Lower Ninth Ward — an area that had been devastated by Hurricane Katrina in 2005 and was still struggling to rebound.
While shuttling students between job sites, I was shocked to see a number of newly built houses that looked as if they had been dropped from outer space into the middle of the “Lower Nine.” They had oddly angled roofs with solar panels, swooping overhangs, and, in some cases, the entryways were more than a story above ground. I later learned that these houses had been built by actor Brad Pitt’s organization, Make It Right. They seemed to me to be grotesque caricatures of the Greek revival, Italianate, Creole cottages, and shotgun houses that had previously occupied the landscape. My sentiments were echoed by those of experts who had also made post-Katrina pilgrimages to the Lower Ninth Ward to observe or participate in rebuilding efforts. One architect recounted his dismay: When I visited New Orleans last fall, there was no way to prepare myself for the despair I felt when walking through the Lower 9th Ward, even 6 years after the storm . . . . A vacuum of leadership at every level has left the task of “salvation” to celebrities, and their private celebrity architects — with projects that are an exercise of vanity over practicality. What was most dismaying was seeing “celebrity architecture” masquerading as sustainable housing . . . . Are we seriously expected to believe that a handful of LEED houses will somehow create a template for the future, even while the architecture itself destroys the porch culture that formerly characterized the close-knit social life of the neighborhood? Whose intentions are really more important? I would add to the speaker’s questions an additional one: once the more important intentions are identified, how might historic preservation law aid in effectuating those intentions?
In Part I of this Article, I argue that rebuilding approaches like Make It Right’s — approaches that admittedly seek to “change the way buildings are designed and built” — often fail to adhere to cultural and historical norms. This failure misses an opportunity to preserve the history of a community — one of the essential functions of historic preservation. In advocating for a larger role for historic preservation law in post-disaster rebuilding, I also explore the history of the Ninth Ward, the nature of pre-Katrina activism in this predominantly African-American community, and the role of place and space in that activism, as typified by the role of the front porch and the development of “porch culture.” I explore these issues by harkening back to the roots of African American homeownership in New Orleans — roots that extend to the legacy of real property ownership established by antebellum free women of color. In Part III of this Article, I examine the City of New Orleans’s current historic preservation mechanisms and posit that in instances of complete destruction or widespread devastation, existing historic preservation ordinances and processes must apply not just to pre-designated historic districts, but also to entire neighborhoods. I argue that such a regulatory scheme is necessary to maintain neighborhood integrity in the face of widespread destruction, such as that wrought by Hurricane Katrina in 2005.
Friday, July 24, 2015
The 10th International Conference of the International Academic Association on Planning, Law, and Property Rights (PLPR) will take place in Bern, Switzerland, on February 17-19, 2016.
PLPR is a free-standing academic association with over 400 individual members from all over the world. PLPR believes that Planning, Law and Property are interdependent. PLPR therefore conveys the message "Planning matters, Law matters, Property matters". These three simple statements inspire the growing PLPR community to examine the difficult relationship between public and private interests in the use of land.
CONFERENCE THEME: "Land as a scarce resource"
Spatial planning is often accused of not being up to the tasks it is supposed to deal with: more parsimonious use of natural resources; conservation of regional identities in the face of global standardization processes; promotion of integrated transport infrastructures; reduction of socioeconomic disparities among territories, etc.
During the last century, all Western countries have developed a complex administrative organization to shape their spatial development. Most countries have passed planning acts accompanied by the development of training programs for planners through national planning schools, and planning departments were created at all levels of government. In most national settings, spatial planning instruments were crafted in a context of land profusion. But are these systems able to meet the challenges of scarcity today?
Fighting against sprawl and uncontrolled growth in the name of sustainability calls for the end of green field development. Yet, suitable land for urban development is becoming more and more scarce. One of the central challenges of the new scarcity situation is that spatial planning needs to deal with the complex property-rights situations that characterize the already-built environment. Redevelopment, densification, mixed use development and urban land reconversion implies that public actors, developers, real estate specialists, neighborhood or tenant associations will have to deal with competing interests that are rooted in complex property right situations or regimes. For effective steering of spatial development, a deeper understanding of the tight interactions between spatial planning and property rights is required.
Even where economic growth is still given, the actors of spatial planning struggle with this new focus on the redevelopment of pre-used plots. Beside technical challenges such as contamination, neighbor conflicts, noisiness, etc., scarcity also questions our development patterns oriented toward growth, increased resource consumption per capita, and growing inequalities.
Abstract submission opens: September 1, 2015
Abstracts due: October 16, 2015 (DEADLINE WILL NOT BE EXTENDED)
Early registration begins: December 14, 2015
Conference: February 17-19, 2016
Please visit the PLPR Conference website for details: www.plpr2016.unibe.ch
1. Proposed papers should speak to topics at the intersection of planning, law, and/or property rights (i.e., not addressing just a planning issue, legal issue, or property rights issue in isolation of the other key themes of the association). A paper need not encompass all three dimensions, but should address at least two.
2. Proposed paper abstracts will be reviewed through a double-blind review process for coherence, connections to relevant literature(s), communication (including readable English), and appropriateness for the conference.
3. Participants interested in organizing a panel can get in touch with the organizers before the abstract submission window opens.
4. THE DEADLINE FOR ABSTRACT SUBMISSISSIONS WILL NOT BE EXTENDED.
Alejandro Camacho (Irvine) & Robert Glicksman (George Washington) have posted Legal Adaptive Capacity: How Program Goals and Processes Shape Federal Land Adaptation to Climate Change (Colorado Law Review) on SSRN. Here's the abstract:
The degree to which statutory goals are pliable is likely to affect significantly the ability of an agency with regulatory or management responsibilities to achieve those objectives in the face of novel challenges or changing circumstances. This Article explores this dynamic by comparing the degree of “give” provided by the goals of the regimes governing management of the five types of federal public lands in responding to the challenges posed by climate change. It asserts that the extent of climate change adaptation in which an agency engages is influenced by a program’s legal adaptive capacity — the mutability of the goals pursued under its authorizing legal framework.
Though a few scholars have explored the concept of adaptive capacity as it applies to law, most focus on the impact of procedural discretion on the ability to manage change. A comparative analysis of federal land adaptation to climate change demonstrates that a management regime’s legal adaptive capacity is influenced not only by procedural flexibility, but also by the flexibility the agency has in defining and pursuing a program’s substantive goals. Counterintuitively, for this reason, the land regimes most closely tied to resource preservation goals have generally lagged behind those with mixed conservation-commodity development mandates in preparing for climate change. Accordingly, the Article suggests ways to enhance the substantive legal adaptive capacity of land management agencies to promote ecological health in the face of climate change, and evaluates tradeoffs implicated when policymakers choose more appropriate levels of such adaptive capacity.
Peter Byrne (Georgetown) has posted Precipice Regulations and Perverse Incentives: Comparing Historic Preservation Designation and Endangered Species Listing (Georgetown International Environmental Law Review) on SSRN. Here's the abstract:
Part I describes each regulatory regime and specifies the ways the regimes create incentives to destroy the resources they aim to protect. Part I also reviews the literature identifying such perverse incentives and what is known about the incidence of actual destruction. Part II addresses actual and suggested changes to the procedures for designation or listing the resources, while Part III looks at substantive changes in the laws that may have the purpose or effect of moderating negative incentives. Finally, part IV concludes by considering the extent to which accommodation reforms further, or compromise, the values that historic preservation and biodiversity laws advance.
Tuesday, July 21, 2015
David Spence (Texas) has posted The Political Economy of Local Vetoes (Texas Law Review) on SSRN. Here's the abstract:
Political philosophers, welfare economists, and positive political theorists have long puzzled over a problem that the law is frequently called upon to resolve: namely, how to choose the “best” policy when a majority mildly prefers policy X, and a minority strongly prefers policy not X. This is a frequent subtext of preemption litigation, when disputes between federal and state governments reflect the fact that popular preferences are geographically heterogeneous, and the majority preference in a state is in the minority nationally. Federal preemption doctrine establishes a conceptually straightforward way of addressing this issue, but doctrinal rules governing state law preemption of local zoning decisions are murkier. In addition, when local zoning rules restrict development, those rules can also trigger regulatory takings claims, further complicating the resolution of these state-local disputes.
According to the environmental group Food and Water Watch, within the last few years more than 400 local governments, from California to Texas to New York, have enacted ordinances restricting or banning within their borders the use of hydraulic fracturing (fracking) to produce natural gas or oil from shale formations; indeed, there are more than 200 of these ordinances in New York State alone. These kinds of local vetoes of a state-regulated activity pose the potential for claims that the local ordinance is preempted by state oil and gas regulation, as well as regulatory takings claims by holders of mineral rights devalued by the local ban. In what seems likely to be only the tip of the litigation iceberg, state courts have recently begun to decide state-local preemption challenges to anti-fracking ordinances (rendering only a few opinions to date) and are facing the first few takings claims (none of which have yet been decided). These attempts by local governments to veto local development are essentially fights over the distribution of the costs and benefits of development. This Article explores the distribution of those costs and benefits, how distributional concerns drive the politics that cause these conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns to address those distributional concerns.
This analysis is self-consciously policy neutral. That is, it does not proceed by selecting a preferred policy for regulating fracking and then advocating a decision process most likely to produce that policy. Rather, because the risk profile of fracking is still being developed and because there is such disagreement about that profile, this analysis asks which level of government (state or local) is most likely to produce decisions that balance the costs and benefits of shale oil and gas production well. Thus, the focus is on the politics of welfare maximization (or of long-run utility maximization). This analysis will consider the many and varied effects of fracking in terms of costs and benefits: not to quantify them or to suggest that they ought to be quantified but rather as a way of exploring how the distribution of impacts disposes people toward or against shale oil and gas production.