Monday, February 20, 2012
From a recent HUD press release:
HUD SECRETARY DONOVAN ANNOUNCES NEW REGULATIONS TO ENSURE EQUAL ACCESS
TO HOUSING FOR ALL AMERICANS REGARDLESS OF SEXUAL ORIENTATION OR GENDER IDENTITY
New regulations, published as final in the Federal Register next week, will go into effect in 30 days
WASHINGTON – U.S. Housing and Urban Development (HUD) Secretary Shaun Donovan announced today new regulations intended to ensure that HUD's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity. Donovan previewed the announcement at the 24th National Conference on Lesbian, Gay, Bisexual and Transgender (LGBT) Equality – Creating Change. View the final rule here.
“The Obama Administration has viewed the fight for equality on behalf of the LGBT community as a priority and I’m proud that HUD has been a leader in that fight,” said Secretary Shaun Donovan. “With this historic rule, the Administration is saying you cannot use taxpayer dollars to prevent Americans from choosing where they want live on the basis sexual orientation or gender identity – ensuring that HUD’s housing programs are open, not to some, not to most, but to all.”
The new regulations, published as final in the Federal Register next week, will go into effect 30 days after the rule is published.
Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:
In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.
Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:
[Insert sound of crickets chirping, grass growing, and paint drying].
Somin cites an op-ed by Christina Walsh of the Institute of Justice:
A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.
This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.
It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.
I am sad to report that my dear friend and colleague Katherine Darmer passed away on Friday. Katherine was a wonderful teacher and scholar, a tireless advocate on behalf of important social causes, and a great friend and mentor. The entire Chapman law community is in a state of mourning. The Orange County Register has an obituary and some touching remembrances of Katherine. I am glad to have known her.
If the government condemns land that is a habitat for an endangered or threatened species, should the land be valued differently than a developable piece of property in an active real estate market?
According to the Supreme Court, the default rule is that “just compensation” for condemned is the “fair market value” of the property. United States v. 50 Acres of Land, 469 U.S. 24, 25 (1984). With regard to habitat land, however, “fair market value” may be very difficult, if not impossible, to ascertain as habitat land, by definition, has been essentially taken off the market. Despite this diffuculty, there are valuation techniques available that can be used to value habitat land based on market principles. For example, as suggested by the Uniform Appraisal Standards for Federal Land Acquisitions, one could (1) determine the theoretical best economic use of the habitat land; and (2) then determine how much land used for that purpose would go on the open market.
But it is hard to see how compensation based on a hypothetical use of the land truly constitutes “just compensation.’’ The purpose of using land for habitat conservation is not to make money, but to protect endangered or threatened species. If this purpose is taken into account, then it could be argued that the only “just compensation” is to replace the habitat. Under this replacement theory, if the government takes habitat land, the government would have to provide enough money to purchase replacement habitat property. This is similar to the statutory remedy provided by CERCLA or Superfund, which allows the government to recover natural resource damages including the cost of replacement. 42 U.S.C. § 9607(f)(1) (2006).
One can certainly imagine scenarios where replacement costs of habitat land could get very expensive. For example, the government condemns habitat land located in a desolate area Mohave Desert, market value $100,000, and the only available replacement habitat land is a commercially developable parcel land located adjacent to the Las Vegas Strip that is worth $5,000,000. Would paying for the replacement land in this instance be “just compensation” or merely a windfall for the property owner? And what if there is no other adequate replacement habitat land? Would the government be prohibited from taking the property at all?
In the end, how to best value condemned habitat land will vary dependingon the facts of the situation. One would hope, however, that the government and the courts do not overlook the unique qualities of habitat land when deciding what comprises “just compensation.”
Friday, February 17, 2012
One hundred and forty years after being singed into law by President Grant, a 19th century statute is still one of the primary means of regulating mining on federal lands, and permits mining companies to
extract minerals without paying royalties, while limiting environmental regulation. Under the General Mining Act of 1872 individuals and corporations have “free and open access” to prospect in western federal lands and, for a nominal fee, may stake a claim upon any valuable mineral deposit they find.
Although federal lands designated for specific purposes, such as National Parks and wildernesses, are closed to prospecting, the law has nonetheless allowed mining companies to stake claims to millions
of acres of federal land.
Despite the generosity of the law, environmental statutes such as NEPA and the Clean Water Act still apply to mining, and federal permitting is required before prospecting begins. However, because the law guarantees “free and open access” to non-designated federal lands, in the words of a federal judge, “the development of mineral resources in the national forests may not be prohibited or unreasonably circumscribed.” Furthermore, because the law gives mining preference over other uses of federal land, as a former chief of the Forest Service testified before Congress, “it is nearly impossible to prohibit mining under the current framework of the 1872 mining law, no matter how serious the impacts might be.”
Thus, an industry ranked by EPA as the most toxic polluter in the country, and one that has polluted more than 40 percent of western watersheds, enjoys almost unlimited authority to exploit public land. Rivers and fisheries, habitats and even National Parks are threatened and/or destroyed by the continued existence of the law, and hundreds of thousands of abandoned mines pockmark the western landscape. Although mining companies are required to post cleanup bonds, they are frequently insufficient to cover comprehensive remediation, and if the company is bankrupted, taxpayers foot the bill.
Significant legislative actions have already limited some of the law’s potential impacts. For example,
a 1920 amendment eliminated hydrocarbons and a number of other substances from the list of
claimable minerals. More recently, a 1994 congressionally imposed moratorium on accepting patents for mining claims means that claimholders can no longer gain title to surface and mineral rights, although they may still extract minerals within the claimed area. A number of rules and regulations have also limited the law’s reach. Perhaps most importantly, the Bureau of Land Management has removed a patchwork of important lands from the purview of the law, and is in the process of ensuring that other valuable lands, such as those surrounding the Grand Canyon, are also not claimable.
Yet while a number of bills have been introduced in both the current and previous Congresses, no comprehensive action has been taken to modernize regulation of the mining industry. Surly it must be possible to replace this outdated statute with a new law that more equitably balances the need for a
domestic mining industry with environmental protectionism, and allows the entire country, and not just the mining industry, to benefit from the vast resources beneath federal lands?
Wednesday, February 15, 2012
Hot off the wire, the 2012 John D. and Catherine T. MacArthur Awards for Creative and Effective Institutions have just been announced. Among the big winners were our friends at the NYU Furman Center:
We are delighted to announce that the John D. and Catherine T. MacArthur Foundation just named NYU's Furman Center for Real Estate and Urban Policy a recipient of the MacArthur Award for Creative and Effective Institutions. This distinguished award recognizes the Furman Center's excellence in providing objective, policy-relevant research to address the challenges facing neighborhoods in New York City and across the nation.
The award also is an investment into the Furman Center's future. It comes with a grant of $1 million, which we will use to build data and research partnerships that will allow us to broaden the geographic scope of our research; strengthen and expand our policy analysis; and improve our communications and data management infrastructure. This provides us with a remarkable opportunity to expand our research beyond New York City to help policymakers in Washington and across the nation make more effective housing and community development investments and policies.
By my rough count, about 6 of the 15 awards went to groups for land use, housing, or environmental projects. Here are some of the others:
Albertine Rift Conservation Society – Kampala, Uganda ($350,000) champions collaborative conservation initiatives in one of the world’s most important ecosystems;
Business and Professional People for the Public Interest – Chicago, Illinois ($750,000) works to strengthen impoverished communities, preserve and increase affordable housing, improve Chicago schools and promote open, honest government in Illinois;
Center for Responsible Lending – Durham, North Carolina ($2 million) protects homeownership and family assets by working to eliminate abusive financial practices and consumer products;
Community Investment Corporation – Chicago, Illinois ($2 million) provided assistance to developers of rental housing in low- and moderate-income neighborhoods in Chicago
Conservation Strategy Fund – Sebastopol, California ($750,000) trains conservation professionals in economics and policy analysis to strengthen and protect the environment;
Congratulations to the winners; and thanks to Hattaway Communications for the heads-up.
There is a growing trend of Tea Party activism against the idea of sustainable energy. Whilst many claim to support environmental protection, Tea Partiers object to what they see as attempts by foreign international bodies, coordinating with local environmental groups and the government, to restrict private property rights. Concerned Tea party members often refer to the UN’s “Agenda 21” and what they see as its attempts to subordinate the rights of man to the needs of the environment.
Agenda 21 is comprehensive plan of action that calls for the integration of developmental and environmental concerns to fulfil basic needs and improve living standards for all. It has been adopted but never ratified in the United States. The Tea Party appears to be very concerned with Section I chapter 7 which refers to sustainable human settlements. The stated goals are promoting housing for all and promoting sustainable construction, amongst other things. Even without considering the fact that “promoting” is a somewhat passive word that certainly does not evoke the idea that there will be “enforcement” of these objectives, the provision seems harmless.
Yet the agitated tea party members object to the plan whose method of implementation includes broad concepts such as, education on patterns of consumption that do not completely deplete natural resources, one member sees the plan as “caging the humans whilst the animals run free.” Some tea party members see the non-binding UN resolution as merely a hoax to redistribute wealth. Others have gone so far as to liken the mandate of Agenda 21 to communism. Claiming it will result in government rationing of food and water a concept that they believe is at its core, Un-American.
Proponents of the movement use striking images of crowded houses and maps of the United States with nary a trace of the human population to demonstrate what they believe is the end goal of Agenda 21. Opponents to sustainable development claim, without evidence, that the program is already being implemented in states like New Jersey as part of a broader conspiracy theory, despite the fact that the sustainability in New Jersey does not indicate any ties to international or federal efforts to attain sustainability.
In New Jersey, Tea Partiers oppose the State’s proposed Strategic Plan and efforts by an organization called Sustainable New Jersey which offers municipalities monetary grants conditioned on certain actions, ranging from innocuous energy audits and waste reductions to contested sustainable community planning, collaborative land preservation programs, and carbon reduction targets. The Tea Party finds fault with Sustainable New Jersey’s mission to embrace social justice and fairness. Among their chief complaints is a recommended ordinance reducing lot size and placing homes closer together. Criticism varies from the “mild” allegation that such programs transfer America’s wealth to developing countries to more extreme charges that the government is clearing the way for insider businesses to exploit the land’s natural resources. The program is entirely voluntary and the New Jersey State government and Wal-Mart are its two largest benefactors.
Perhaps the concerns of the Tea Party would be more convincing were they grounded in pertinent law. If even some states choose to conform to international environmental standards the United States is, after all, based on a federal system that allows this. Even a cursory glance anywhere indicates that Agenda 21, which as an example demands huge new sources of material wealth to developing countries, has had little if any impact in the United States and the concept of sustainable development appears much less sinister than its opponents, who believe it is a cover up, would have you believe. In this world, a world of limited resources, it is probably a good idea for us all to be more considerate of our consumption patterns both in terms of resources and space as opposed to clinging to the idea that the world is trying to dupe us into giving up our land.
Tuesday, February 14, 2012
Saturday, February 11, 2012
I hope Matt will forgive me for moonlighting, but The Atlantic Cities blog (a great resource I have blogged about before) invited me to write a guest blog post about how the Occupy protests challenged the predominant model of urban government. You can check it out here. My basic thesis is:
The Occupy movement challenged cities’ attachment to mobile capital by making place central to its worldview. In establishing flimsy tent-cities in actual urban spaces and refusing to leave, the Occupy protests mocked the idea of mobility peddled by urban officials. More than that, they implicitly advocated the notion that urban areas are places bound up with the identity of local communities, rather than disposable products in a global marketplace.
Friday, February 10, 2012
The Pennsylvania legislature approved a bill that limits municipalities zoning
power with respect to gas drilling. The issue of municipal authority to zone for hydraulic fracturing and related operations has been a significant issue in Pennsylvania as it has in New York
(see February 2, 2012 post). Pennsylvania courts had determined the contours of municipal power but Governor Tom Corbett and industry representatives pushed a through bill that requires municipalities
to permit nearly all types of oil and gas operations in all zoning districts including residential neighborhoods and sensitive natural and cultural resource protection areas. The bill does not offer any increased protection to environmental resources although it does include some bonding requirements. Called a “compromise” the bill does include impact fees payable to the counties
and municipalities but concerns have been raised that the fees are insufficient to offset any costs. Governor Corbett is expected to sign the legislation this week.
Thursday, February 9, 2012
Reed Benson (New Mexico) has posted Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States, Journal of Rural Law and Policy, Vol. 1, No. 1, 2011. The abstract:
Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective.
This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.
While environmentalists and avant-garde artists are sometimes assumed to be political bedfellows, it turns out that they are not always cut from the same cloth. There's a controversy over a famous artist's plans to drape the Arkansas River in copious amounts of textile product. From the New York Times story Note to Christo: Don't Start Hanging the Fabric Yet:
CAÑON CITY, Colo. — The shouting isn’t over for “Over the River.”
The $50 million project by the artist Christo, who hopes to drape nearly six miles of the Arkansas River here in southern Colorado with suspended bank-to-bank fabric, received approval from federal land managers late last year.
But on Wednesday, a new battlefield emerged in law and local politics: in Denver, opponents filed a federal lawsuit aiming to block construction, which Christo had hoped to begin this summer. The suit argues that land managers violated federal law in approving the plan and gauging its environmental impacts.
And there are some intrepid law students involved in the case.
The lawsuit, filed on ROAR’s behalf by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs.
An interesting issue, with both sides clothed in good intentions. Understandably, no one wants to pull the wool over the eyes of any interested party, least of all the wildlife. Hopefully the project is not a wolf in sheep's clothing. I hope it doesn't irreparably tear at the fabric of the regional community.
Tuesday, February 7, 2012
How do you like the working title for my next law review article? In a recent decision, the New Jersey Supreme Court (of Mount Laurel fame) held that the first amendment does not necessarily require a particular municipality to provide access to adult businesses, as long as adult businesses can find adequate locations elsewhere in the metropolitan region --- even if the only accessible locations are across state lines. I call this the "bizarro" Mount Laurel doctrine because where Mount Laurel requires every municipality in New Jersey to accommodate its fair share of the regional need for a particular use (there, affordable housing rather than adult businesses,) under this reasoning municipalities do not need to accommodate their fair share provided that someone else in the region does. Several courts have used this bizarro logic to justify other forms of exclusionary zoning. Consider the Sixth Circuit's 1955 decision in Valley View v. Proffett, 221 F.2d 412 (6th Cir. 1955), regarding a zoning ordinance designed to maintain the exclusively residential character of a suburban village:
Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas. It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. . . .The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself . . . [but has the authority] to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.
The bizarro Mount Laurel doctrine seems suspiciously like a recipe for ghettoization. Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have. City leaders will of course get the message that it's better to exclude everything than even try to be a good neighbor and accommodate your fair share. At least adult uses can lean on the first amendment for some protection. Where are advocates of affordable housing to turn? Obviously not to New Jersey governor Chris Christie, who has denounced the Mount Laurel decision as an "abomination" and is working hard to dismantle its legacy.
(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)
New York has chosen a design for an AIDS memorial park titled “Infinite Forest” in Greenwich Village. Located on a triangle bordered by 7th Avenue, Greenwich Avenue, and West 12th Street, the park is located on the former site of St. Vincent’s Hospital, home of New York City’s first AIDS ward in the early 1980s. The design by Brooklyn firm a+i will incorporate a birch grove surrounded by walls on three sides. The interior walls of the parks are mirrored, and the exterior walls are covered in slate to allow people to write messages on the walls in chalk. The site became available when St. Vincent’s went bankrupt in 2010 and the former hospital campus was bought by a development company for a luxury housing complex.
The competition, run by Michael Arad, the designer of the National September 11 Memorial, selected the winner on January 30th after receiving 475 entries. The competition design, which may replace the developer’s original design, received both positive and negative reactions from the community. The developer, Bill Rudin, may not go forward with the design because prior plans have already been approved by the City Planning Commission and other groups.
Some opposed to the new design said it was “dreadful” and would attract graffiti. The new design also appears to conflict with what neighborhood groups originally asked for in a park—a community space, not a “destination.” The President of the Greenwich Village Block Association said that design “looks like it was by people who don’t live in the neighborhood and don’t have any idea what the community wants.”
Although small, the space has the potential to provide greenery in the dense West Village, a place to sit outdoors, and a place for families and children to play outside. The neighborhood-park model centers on having a place where members of the community can interact and reconnect with each other in a shared space. The new design is short on these features, and the fact that it is surrounded by walls on all three sides doesn’t contribute to a sense of openness or availability.
On the other hand, the park’s location seems to be an ideal location for a space dedicated at least in part to commemorating the AIDS epidemic. St. Vincent’s was the largest AIDS ward on the East Coast and was referred to as the “ground zero” of the AIDS epidemic. The park is also next to the LGBT Community Center, where early AIDS advocacy/support groups, like ACT UP began.
The park and the AIDS memorial have certainly raised questions about what the primary purpose of the site should be—a place to memorialize people lost in the AIDS epidemic and to remember the work done at St. Vincent’s, versus a community green space designed for those living in the neighborhood enjoy.
Monday, February 6, 2012
During his excellent stint as a guest blogger, Stephen Miller posed the question, "Does the best planning happen in a recession?" Like him, I tend to think that currently most jurisdictions are focused on crisis management rather than forward thinking.
However, one exception is Newton County, Georgia - a community that just happens to be a UGA Land Use Clinic client since we began assisting them in 2003 with sprawl reduction tools like infrastructure planning, agricultural land conservation, and transferable development rights. Newton's forward thinking planning processes are highlighted in a four part series on CoLab Radio. The first of the series is entitled "Planning for Growth in a Recession."
Jamie Baker Roskie
February 6, 2012 in Community Design, Development, Georgia, Local Government, New Urbanism, Planning, Smart Growth, Sprawl, Suburbs, Transferable Development Rights | Permalink | Comments (0) | TrackBack (0)
Sunday, February 5, 2012
The recent approval by FERC of a 39-mile natural gas pipeline in the Endless Mountains of northern Pennsylvania has precipitated a wave of eminent domain proceedings as Central New York Oil & Gas forges a path for its pipe. However, the company’s widespread use of eminent domain conflicts
with the assurances it gave to FERC when it sought approval of the project, as it told the Commission that it would obtain the necessary land “through negotiated agreements with landowners, thus minimizing the need” to condemn land. Despite these assurances, the Associated Press recently reported http://www.kmph.com/story/16637154/landowners-fight-eminent-domain-in-pa-gas-field) that CNYO&G was preparing condemnation papers against dozens of landowners while FERC was still in the process of considering its application for the pipeline.
CNYO&G began eminent domain proceedings almost immediately after securing FERC’s approval,
and of the 152 individual property owners along the Endless Mountain route, 74 found themselves in court within days of the approval. While CNYO&G stated that it attempted to negotiate in good faith with landowners, and claimed that it reached compromises with the majority of affected individuals, the company has threatened to withdraw any offer of compensation if landowners challenge the amount tendered. Additionally, because FERC’s ruling empowered CNYO&G with the threat of condemnation, some landowners have claimed that it has been able to offer significantly lower
amounts than it might otherwise have to. Landowners may thus be finding themselves in the uncomfortable position of having to accept an extremely low offer or seek a more realistic market value in court.
As the natural gas industry continues to experience explosive growth http://www.ingaa.org/Foundation/Foundation-Reports/Studies/7828/9115.aspx),
its demand for pipelines will similarly increase, and it will be interesting to see what, if any, impact CNYO&G’s striking reliance on eminent domain will have on the construction of future pipelines. Will FERC be as willing to rely upon assurances that companies will only use eminent domain as a last resort? Will states take the unlikely step of bolstering the compensation of landowners through new legislation or regulations? Will landowners begin to more widely refuse offers of compensation and
seek redress in the courts?
Further extraction of natural gas from the Marcellus Shale rock formation that lies underneath six northeastern states (http://geology.com/articles/marcellus-shale.shtml) will lead to the construction of new pipelines, or additions to existing pipelines in the same region as the Endless Mountain pipe.
Similarly, as companies exploit significant natural gas deposits located throughout the country (http://www.ehelpfultips.com/list_of_shale_gas_formations_in.htm), new pipelines will undoubtedly be required. The fight being waged in northern Pennsylvania is therefore a possible prologue to a nationwide battle over the ability of private companies to use eminent domain to secure routes for
their natural gas pipelines.
Friday, February 3, 2012
Holly Doremus (Berkeley) has posted Climate Change and the Evolution of Property Rights, University of California Irvine Law Review, Vol. 1 (2012). The abstract:
Climate change will unsettle expectations about both land and water. Those changes will reduce the extent to which existing resource allocations effectively serve societal interests. In the United States, we typically rely on market transactions to adjust property allocations as societal needs and interests change. Markets, however, will not adequately protect the collective, as opposed to the private, interests climate change will put at risk. Changes to underlying property rules will be needed if those interests are to be sustained.
Because current property rules stand in the way of efficient and effective adaptation to climate change, evolution of property law is an important aspect of adaptation. But because property rules are especially sticky, the needed changes will not come easily. Federal courts must play the keystone role because they control the interpretation of key constitutional doctrines. The chief legal impediment to climate adaptation at the moment is federal court resistance to changes in property rules. If that resistance can be softened, state courts and legislatures can, and likely will, make needed adjustments. Federal courts should be careful not to stand in the way of such adjustments, although they also have a role to play in ensuring that the costs of change are fairly distributed.
Thursday, February 2, 2012
Rohan Price (Tasmania) has posted Exceptionalism and the Rule of Law in Post-War Hong Kong. The abstract:
A comprehensive body of case law developed in the immediate postwar years which interpreted and applied Proclamation No. 15 - Landlord and Tenant (1945). The BMA’s policy rent control and preservation of residential tenure were realized by a sympathetic predisposition towards tenants in the Tenancy Tribunal on natural justice grounds which, on appeal, the District Court shored up by reference to the legal requirements of the Proclamation. In the major cases when the landlord prevailed in the District Court, it is notable that the Tribunal was, in one case, admonished for not having a sufficiently hard-headed reason for it siding with the tenant (Ching Sum Co) and, in the other, the landlord won because the Tribunal made a factual error in relation to the bona fides of the tenant (Re On Lok Co). A closer examination of the case law shows that the District Court permitted the executive’s pro-tenant policy to prevail if the reasons for decision in a tenant’s favor in the Tenancy Tribunal could be dressed up in legal terms and the tenant was not so repulsive as to make a finding of their bona fides impossible. This note argues that judicial independence was proclaimed in Hong Kong by the Bench in exceptional cases while the trend of decisions indicates nothing short of loyalty to the executive.
Good morning. I'm looking forward to guest blogging here this month. I will be posting about the many issues we are working on here in the Columbia Environmental Law Clinic. Our students are working extensively on hydraulic fracturing, easement defense and many other issues. Today we begin with the challenges fracking presents to home rule in New York.
Preemption Challenges to Local Fracking Bans in New York
New York state has arrived at a critical passage in the ongoing debate over hydraulic fracturing. The NY DEC's comment period for the Draft Supplemental Generic Environmental Impact Statement and the proposed regulations for "high-volume hydraulic fracturing" closed on January 11, 2012, paving the way for an administrative decision that may lift the statewide fracking moratorium and determine whether - and if so, how - fracking will occur in the state. In this context, it's worth considering the question (referenced previously on this blog, but now more pressing and developed) of whether a NY municipality may ban fracking through exercising its zoning authority.
Citing home rule powers delegated by statute under the state constitution, dozens of municipalities across the state - including Syracuse and Buffalo - have adopted zoning ordinances that remove natural gas exploration and extraction from the list of permissible land uses within their borders. (Click here for a map of of others, with links to the text of each ordinance.) In late 2011, natural gas leaseholders and industry sued two of those municipalities - Dryden and Middlefield - arguing that the state Oil, Gas, and Solution Mining Law (OGSM) (codified as Environmental Conservation Law (ECL) § 23) preempts local efforts to ban fracking. OGSM expressly supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.” ECL § 23-0303(2). Thus, the question presented is whether a generally applicable zoning ordinance that bans natural gas extraction “relate[s] to the regulation” of natural gas.
No court has addressed this clause in the OGSM, and neither statutory language nor legislative history gives clear guidance. Thus the courts will likely look to parallel preemption clauses in other state statutes. Most relavent is the Mined Land Reclamation Law (MLRL), which provides that it “shall supersede all other state and local laws relating to the extractive mining industry.” ECL § 23-2703(2). In Frew Run Gravel Products v. Town of Carroll, the Court of Appeals directly addressed whether the MLRL preempted a town’s zoning laws. 71 N.Y.2d 126 (1987). The DEC had granted Frew Run a permit to conduct “sand and gravel” operations on property in the Town of Carroll. However, because the property was zoned exclusively for agricultural and residential development, the town notified Frew Run that its operation was prohibited. The Court held that Carroll’s zoning ordinance related “not to the extractive mining industry but to an entirely different subject matter and purpose: i.e., regulating the location, construction and use of buildings, structures, and the use of land in the Town of Carroll." Id. at 131 (internal quotations omitted). The Court noted that land use regulation “inevitably exerts an incidental control” over regulated businesses, and reasoned that such “incidental control resulting from the municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment . . . within the prohibition of the statute.” Id. That is, the MLRL’s purpose is not to control town zoning, but rather to provide uniform mining regulations. Thus, the Court ruled that local regulations dealing with “the actual operation and process of mining” would be preempted, but not local zoning ordinances concerned with the appropriate use of local lands. Id. at 133.
In light of this and other precedent, the court should adopt similar reasoning and uphold a generally applicable zoning ordinance removing oil and gas activities from the list of permissible land uses. Indeed, it has applied a similar analysis and reached the same conclusion in other contexts as well. See DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91 (2001) (upholding zoning authority in relation to alcohol in the face of implied preemption by Alcohol Beverage Control Law).
The normative considerations underlying home rule authority likewise favor a municipality’s power to decide whether natural gas extraction may occur in its territory. The NY Court of Appeals has recognized that land use is one of the essential home rule powers because it addresses distinctively local matters of concern. Even setting aside the well-documented possible environmental and human health impacts, fracking is undeniably a high-impact land use that dramatically and often irreversibly alters the character of localities, regardless of the stringency of state regulations. Forests are fragmented by roads and rights of way; land is clear-cut and covered over by cement well pads; rural ambience is replaced by the drone of compressor stations, drilling and fracking equipment, and diesel truck engines; and rural sceneries are punctuated by metal towers rising among forest or farmland. These changes are not merely subjective intrusions: they can negatively impact local economies and the character of local communities dependent on rural tourism and recreation, uses that are essentially incompatible with an industrialized landscape. While DEC should determine whether and how fracking may occur in the state, and preempt localities from enacting duplicative and/or conflicting regulations relating to oil and gas activities that would unnecessarily burden industry, localities should retain the authority to decide whether such activities are appropriate for their landscapes and communities in the first instance.
Regardless of the outcome of the Dryden and Middlefield cases, appeals are certain. The resolution of this question in these initial cases very well may influence other courts, and may encourage or discourage further local bans on fracking, depending of course on the outcomes. Meanwhile, legislation passed in the New York Assembly (Bill No. A03245-2011) and now pending in the state Senate (Bill No. S3472-2011) proposes to amend the OGSM to expressly provide that the OGSM does not prevent any local government from "enacting or enforcing zoning ordinances or laws which determine permissible uses in zoning districts." Enactment of such an amendment would no doubt moot the pending cases. But unless and until the legislature acts, this question will wind its way through New York courts, where elected judges will determine a crucial if tentative element of New York's fracking regime.
President Obama gave a speech yesterday in Falls Church, VA, explaining his State of the Union thoughts on housing. From the White House transcript:
As I indicated at the State of the Union last week, I am sending Congress a plan that will give every responsible homeowner in America the chance to save about $3,000 a year on their mortgage by refinancing at historically low rates. (Applause.) No more red tape. No more runaround from the banks. And a small fee on the largest financial institutions will make sure it doesn’t add to our deficit.
I want to be clear: This plan, like the other actions we’ve taken, will not help the neighbors down the street who bought a house they couldn’t afford, and then walked away and left a foreclosed home behind. It’s not designed for those who’ve acted irresponsibly, but it can help those who’ve acted responsibly. It’s not going to help those who bought multiple homes just to speculate and flip the house and make a quick buck, but it can help those who’ve acted responsibly.
What this plan will do is help millions of responsible homeowners who make their payments on time but find themselves trapped under falling home values or wrapped up in red tape.