Land Use Prof Blog

Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience

New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to both decrease the city’s contribution to the problem and make the city less vulnerable to the effects of climate change. In an article published in the Columbia Journal of Environmental Law, I provide a detailed analysis of the city’s climate change resilience initiatives and conclude that many of the city’s initiatives provide a model for other coastal communities, but the city's initiatives nevertheless fall short of what is likely required to sufficiently moderate harm from dangerous interference with the climate system.

The city’s robust suite of initiatives put it ahead of the pack as compared to most other U.S. municipalities, especially with respect to comprehensive reform of zoning and building codes, integrated mitigation and adaptation planning, transparent climate change-related data analysis initiatives, and commitment to reduce GHG emissions 80% by 2050 from 2005 levels and progress toward that goal. However, the city also faces a host of wicked policy binds, ineffective regional structures, a lack of support at the federal level, and numerous conditions that constrain its ability to remain resilient. In light of this, the “toughness” theme that runs throughout the city’s plans risks undermining its robust data analysis and reporting initiatives by instilling in New Yorkers a false sense of security with respect to both the scope of the problem and their local government’s ability to protect them from it. The city faces an equally wicked policy bind with respect to waterfront development. Given the foreseeable risks of increasingly intensive and frequent coastal storms, flooding and storm surges, coastal municipalities must carefully evaluate their waterfront development policies to assure consistency with future climate risks and adopt regulations that curtail or eliminate waterfront development in high-risk areas, encourage or require relocation away from vulnerable areas, and take maximum advantage of opportunities to develop natural flood-mitigation infrastructure.

See Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience, 40 Columbia J. Envt’l L. 433 (2015), available here.

 

Post by Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use.

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Turning Lemons into Lemonade: Resilience, Smart Growth and Equitable Development on Long Island

Check out EPA's Greening The Apple blog, which reported today on a collaboration between Touro Law Center's Land Use & Sustainable Development Institute and the Long Island Smart Growth and Resiliency Partnership (LISGRP):  Turning Lemons into Lemonade: Resilience, Smart Growth and Equitable Development on Long Island | Greening The Apple. LISGRP is partnership of EPA, FEMA, New York State Department of State, Suffolk County, Nassau County and the Metropolitan Transit Authority (MTA) formed shortly after Super Storm Sandy to help Long Island rebuild in a smarter, stronger and more resilient fashion. 

Among other projects that focus on the intersection of climate resiliency and smart growth, LISGRP is working with Touro Law Center to place law students with the City of Long Beach to support sustainable rebuilding. Consistent with priorities identified in the City's recently completed NY Rising Community Reconstruction Plan, the City is implementing recommendations from a Global Green Technical Assistance project (funded through a grant from EPA’s Building Blocks for Sustainable Communities program) and a New York University study on green infrastructure and storm water management.

Thus, according EPA Greening the Apple bloggers Joe Siegel and Rabi Kieber, LISGRP and its collaborators are "turning lemons into lemonade" in the wake of the devestation of Super Storm Sandy.

...Long Island Smart Growth Resiliency Partnership has turned lemons into lemonade by incorporating not only climate change resilience but smart growth and equitable development into long term planning on Long Island. The groundbreaking work of the Partnership will no doubt serve as a model for other recovery efforts in Region 2 and beyond.

Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Law Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone ([email protected], (631)761-7137).

New York Governor Signs Climate Change Resiliency Legislation Into Law

And the New York climate change news keeps rolling in…. Today, in conjunction with Climate Week 2014 in New York City, Governor Andrew Cuomo signed into state law the Community Risk and Resiliency Act.

In today's press release, the Governor described the Act as "a comprehensive package of actions that help strengthen and reimagine our infrastructure with the next storm in mind." The legislation implements some of the recommendations made by Governor Cuomo’s NYS 2100 Commission, established following Superstorm Sandy. The Governor also proclaimed the week of Sept. 22-28, 2014 "Climate Week," finding among other things that

"New York State will not allow the national paralysis over climate change to stop us from pursuing the necessary path for the future."

You can read the executive proclamation here.  

The Community Risk and Resiliency Act (A06558/ S06617-B)  requires New York State agencies to consider future physical climate risks caused by storm surges, sea level rise or flooding in certain permitting, funding and regulatory decisions. The standards would apply to smart growth assessments; siting of wastewater treatment plants and hazardous waste transportation, storage and disposal facilities; design and construction regulations for petroleum and chemical bulk storage facilities and oil and gas drilling permits; and properties listed in the state’s Open Space Plan, as well as other projects. The Act also requires the NY Department of Environmental Conservation (DEC) to adopt sea level rise projections by January 1, 2016, and update the projections every five years.  

But, of particular note to land use scholars and practitioners, the Act also:

• Requires the NY DEC and NY Department of State to prepare model local laws to help communities incorporate measures related to physical climate risks into local laws, and provide guidance on the implementation of the Act, including the use of resiliency measures that utilize natural resources and natural processes to reduce risk.
• Provides funding, subject to appropriation, to municipalities for local waterfront revitalization planning projects that mitigate future climate risks. Projects may include preparation of new local laws, plans, and studies, and construction projects.
• Provides funding on a competitive basis, subject to appropriation, to municipalities or not-for-profits toward the cost of coastal rehabilitation projects that consider future climate risks.
• Allows the Commissioner of the Office of Parks, Recreation and Historic Preservation to enter into maintenance and operation agreements for open space land conservation projects in urban areas or metropolitan park projects with municipalities, not-for-profits, and unincorporated associations, if the project demonstrates consideration of climate-change risks.

According to today’s press release,

"Scientists have confirmed a sea level rise of approximately 13 inches since 1900 along New York's coast, and have also measured a significant increase in the proportion of total precipitation that arrives in heavy rainfall events. These climate changes, coupled with land-use planning, zoning and investment that allow and sometimes encourage development in at-risk areas, have resulted in more people, businesses and public infrastructure existing in vulnerable areas."  

The legislation was approved in both houses by wide margins, and had support from a diverse group of stakeholders including: The Nature Conservancy in New York, The New York League of Conservation Voters, The Business Council of New York State, the General Contractors Association, The Reinsurance Association of America, The American Institute of Architects New York State, The Municipal Arts Society of New York, Audubon New York, Natural Resources Defense Council, Environmental Advocates of New York, and The Adirondack Council. 

Click here to read the full text of the Community Risk and Resiliency Act. Click here for the bill history and sponsors. 

Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Law Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone ([email protected], (631)761-7137).  

 

 

Does New Plan to Protect Long Island Sound Sufficiently Prioritize Land Use?

Today, 20 years after approval of the original Comprehensive Conservation and Management Plan, the Long Island Sound Study released a draft updated CCMP. The Long Island Sound Study, co-sponsored by the EPA and the states of Connecticut and New York, is a partnership of federal, state, and local agencies, universities, businesses, and environmental and community groups. According to an EPA press release, the draft Plan emphasizes the principles of sustainability, climate change resiliency, environmental justice and ecosystem-based management.

Recognizing the significance of land use to wetland and watershed protection, the draft Plan highlights the need for

• Integration of transportation planning, conservation of energy and water, resiliency to climate change, and pollution control policies;
• Smart growth and low impact development to minimize the environmental impacts of new and existing development;
• Meeting numerous ecosystem-level targets such as increasing riparian buffers and open spaces; and,
• Fully involving and responding to the needs of underserved communities.

The draft Plan describes the benefits of these investments in economic terms, explaining that they will provide substantial returns for the regional economy. 

"The financial value of goods and services provided to the region's economy by Long Island Sound Basin's natural systems ranges between $17 billion and $36.6 billion annually. Treated as a capital asset, the value of these natural systems, calculated using a standard 4% discount rate with a lifespan of 100 years, is $690 billion to $1.3 trillion (Kocian et.al., 2014). Unlike built systems that depreciate, however, natural assets often accumulate value over time, particularly if they are protected and restored. In addition, an estimated 191,000 direct and indirect jobs in the region result from that the healthy function of these natural systems, and the associated stewardship work."

With respect to implementation and land use, the draft Plan identifies as "Implementation Actions"

• Providing technical guidance for incorporating Low Impact Development/Green Infrastructure into development and redevelopment projects and through zoning and planning changes;
• Reducing the amount of impervious cover that discharges directly into waterbodies;
• Remediating brownfields;
• Tracking implementation and effectiveness of approved watershed plans by local municipalities;
• Promoting establishment and protection of riparian corridors and wetland buffers at the municipal level through development of local ordinances and promoting permanent land protection; and,
• Increasing land protection efforts by municipalities and land protection organizations that permanently protect wetlands and riparian areas and buffers.

Notably, however, these Implementation Actions are not identified as "Priority Implementation Actions." Of course, prioritizing of implementation actions is where the rubber hits the road, so to speak. Given that EPA and the LISS are currently accepting comments on the draft updated Plan, those of us concerned with NE region watershed management should take a close look at the draft Plan, with particular attention to the Implementation Actions and their designation -- or lack thereof -- as "Priority." A copy of the draft Comprehensive Conservation and Management Plan is available at the Long Island Sound Study website at http://longislandsoundstudy.net/Planupdate.

Public meetings on the draft plan will be held

• September 16, 1:00 to 3:00pm, in Westbury, NY at the Yes Community Center
• September 16, 6:00 to 8:00pm, in the Bronx, NY at Rocking The Boat
• September 17, 2:30 to 4:30pm, in New Haven, CT at Southern Connecticut State University

Public comments on the plan will be accepted via email and post until Saturday, November 8, 2014. Emailed comments should be sent to [email protected]. Mailed comments should be sent to:

EPA Long Island Sound Office

Stamford Government Center

888 Washington Blvd.

Stamford, CT 06904-2152

Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone ([email protected], (631)761-7137).

Upcoming conferences on ocean management and environmental law and energy law moot court competition

The following two upcoming conferences, one with a New York focus and one with a national focus, may be of interest to land use scholars and practitioners. Additionally, West Virginia University College of Law is hosting its Fifth Annual National Energy & Sustainability Moot Court Competition, which may be of interest to students focused on land use, energy or environmental law. Here are the details: 

Managing New York Ocean Resources:  Connecting Science and Policy

Save the date: October 18, 2014, at Hofstra University in Queens, New York.

According to an email from a contact at Stony Brook University: As directed by the National Ocean Policy, Regional and New York Ocean Action Plans and Ocean Assessments are being drafted that will protect and guide management of marine resources now and in the future. The New York Marine Sciences Consortium will host a meeting to gather input from the scientific community, policy makers, other stakeholders and the general public to inform these action plans and assessments. Conference participants' input will be used to develop recommendations and identify critical knowledge gaps regarding ocean-related human uses, natural resources, and cultural factors. The NY Marine Sciences Consortium will use this information to produce a meeting report that will be presented to New York State and to the Mid-Atlantic Regional Council on the Oceans to guide development of the Action Plans and Assessments. Click here and choose ‘Annual Conference’ for more information. 

Additionally, for those interested in coastal policy issues, related social science issues, and marine science, the conference planners are seeking input on conference design, including break-out session topics. To provide input, please fill out the online questionnaire by September 12th.

Appalachian Public Interest Environmental Law (APIEL) Conference

October 17 to 19, 2014, at University of Tennessee College of Law in Knoxville, Tennessee.  

According to an email from Will Mazzota, President of the University of Tennessee law school's Environmental Law Organization: APIEL is a regional conference designed to bring attorneys, activists, policymakers, funders, philanthropists, students, and scientists together from across the greater Appalachian region. It is a vehicle to advance the most pressing environmental and public interest causes of our time; it will offer a chance to attend a wide selection of workshops and seminars led by lawyers, activists, and scientists. The workshops will cover a broad range of environmental public interest topics, including some topics of concern to land use practitioners and scholars. Topics include fracking, immigration, nuclear weapons, mountain top removal, and enforcement of the Clean Water Act.

It appears that APIEL may provide some travel stipends and food during conference events to attendees who need financial support.

Register for the event here. For more information about the conference, see APIEL's website. 

Fifth Annual WVU College of Law National Energy & Sustainability Moot Court Competition

Registration is open now for the March 12-14, 2015 competition in Morgantown, West Virginia.

An email from Jamie Van Nostrand, Associate Professor and Director of WVA's the Center for Energy and Sustainable Development, describes this national competition as featuring problems that focus on current issues facing the energy industry. Past problems have been based on energy and sustainability issues associated with the gulf oil spill; the nuclear incident at Fukushima Daiichi; shale gas development and the Clean Air Act; and the intersection of the Clean Air Act, the Clean Water Act and common law nuisance claims associated with utility power plants.

Register here. Registration closes on January 5, 2015, and is limited to the first forty teams. Interested schools or student groups can contact Professor Van Nostrand ([email protected], (304)293-4694) or Samantha Stefanov, Program Assistant ([email protected], phone (304)293-0064) with questions.

 

Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone ([email protected], (631)761-7137).

Furman Center report on Housing & Superstorm Sandy

The NYU Furman Center has issued a timely report called Sandy's Effects on Housing in New York City.  From the announcement by Vicki Been and Ingrid Gould Ellen:

We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.

 

The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.

 

The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.

 

The press release (PDF) and report (PDF) are now available online.

 

Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning

 

Matt Festa

Power on Stop the Beach: Property Rights, the 'Gang of Four' & the Fifth Vote

Garrett Power (Maryland) has posted Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010), 25 Widener Law Journal (2012).  The abstract:

In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had the power to collaterally attack and reverse state court decisions which evaded the requirements of the Taking Clause with pretextual background principles of the State's law of property. Second he opined that each of the “essential sticks in the bundle of rights that are commonly characterized as property” was a separate distinct property right, and that any deprivation of an “established property right” was a compensable Taking under the Fifth and Fourteenth Amendments. If the “Gang of Four” can find a fifth vote, the law of regulatory takings will be radically revised.

Matt Festa

New report on west coast sea-level rise

The National Research Council has just released a major report on sea-level rise along the California, Oregon, and Washington coasts. From the news release:

The sea level off most of California is expected to rise about one meter over the next century, an amount slightly higher than projected for global sea levels, and will likely increase damage to the state's coast from storm surges and high waves, says a new report from the National Research Council.  Sea levels off Washington, Oregon, and northern California will likely rise less, about 60 centimeters over the same period of time.  However, an earthquake magnitude 8 or larger in this region could cause sea level to rise suddenly by an additional meter or more. 

Global sea level rose during the 20th century, and projections suggest it will rise at a higher rate during the 21st century.  A warming climate causes sea level to rise primarily by warming the oceans -- which causes the water to expand -- and melting land ice, which transfers water to the ocean.  However, sea-level rise is uneven and varies from place to place.  Along the U.S. west coast it depends on the global mean sea-level rise and regional factors, such as ocean and atmospheric circulation patterns, melting of modern and ancient ice sheets, and tectonic plate movements.  

. . .  

The committee that wrote the report projected that global sea level will rise 8 to 23 centimeters by 2030, relative to the 2000 level, 18 to 48 centimeters by 2050, and 50 to 140 centimeters by 2100.  The 2100 estimate is substantially higher than the United Nation's Intergovernmental Panel on Climate Change's projection made in 2007 of 18 to 59 centimeters with a possible additional 17 centimeters if rapid changes in ice flow are included. 

For the California coast south of Cape Mendocino, the committee projected that sea level will rise 4 to 30 centimeters by 2030, 12 to 61 centimeters by 2050, and 42 to 167 centimeters by 2100.  For the Washington, Oregon, and California coast north of Cape Mendocino, sea level is projected to change between falling 4 centimeters to rising 23 centimeters by 2030, falling 3 centimeters to rising 48 centimeters by 2050, and rising between 10 to 143 centimeters by 2100.  The committee noted that as the projection period lengthens, uncertainties, and thus ranges, increase. 

The committee's projections for the California coast south of Cape Mendocino are slightly higher than its global projections because much of the coastline is subsiding.  The lower sea levels projected for northern California, Washington, and Oregon coasts are because the land is rising largely due to plate tectonics.  In this region, the ocean plate is descending below the continental plate at the Cascadia Subduction Zone, pushing up the coast. 

Extreme events could raise sea level much faster than the rates projected by the committee.  For example, an earthquake magnitude 8 or greater north of Cape Mendocino, which occurs in this area every several hundred to 1,000 years with the most recent in 1700, could cause parts of the coast to subside immediately and the relative sea level to rise suddenly by a meter or more. 

"As the average sea level rises, the number and duration of extreme storm surges and high waves are expected to escalate, and this increases the risk of flooding, coastal erosion, and wetland loss," said Robert Dalrymple, committee chair and Willard and Lillian Hackerman Professor of Civil Engineering at Johns Hopkins University. 

Most of the damage along the west coast is caused by storms, particularly the confluence of large waves, storm surges, and high tides during El Niño events.  Significant development along the coast -- such as airports, naval air stations, freeways, sports stadiums, and housing developments -- has been built only a few feet above the highest tides.  For example, the San Francisco International Airport could flood with as little as 40 centimeters of sea-level rise, a value that could be reached in several decades.  The committee also ran a simulation that suggested sea-level rise could cause the incidence of extreme water heights in the San Francisco Bay area to increase from about 9 hours per decade, to hundreds of hours per decade by 2050, and to several thousand hours per decade by 2100. 

You can view a video produced by the Council below.

 Stephen R. Miller

Nolon on Regulatory Takings, Property Rights, and Sea Level Rise

John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll.  The abstract:

Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”

This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.

This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including  The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux.  The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.

Matt Festa

Dod & Duhart on Evaluating Katrina

Eloisa C. Rodriguez-Dod and Olympia Duhart (Nova Southeastern) have posted Evaluating Katrina: A Snapshot of Renters’ Rights Following Disasters, Nova Law Review Vol. 31, p. 467.  The abstract:

Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.

This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity of land, increases in costs for repairs, higher insurance, infrastructure uncertainty, rental property inflation, uncertainty over flood protection, zoning restrictions, and criminalization. This article discusses legislation and attempted legislation impacting renters post Katrina. The article explores the increase in rent after disasters and a suggested control. It further discusses the manner in which criminal backgrounds determine rental options following disasters. Specifically, the article focuses on legislation limiting access to rentals and suggests, with the right legislation in place, New Orleans will be able to successfully rebuild its lower and middle income housing.

Matt Festa

Mulvaney's Hectic Week in Takings

In the past week there have been two major state court takings decisions--both involving beachfront property--and a U.S. Supreme Court cert grant in a takings case from the Federal Circuit.  Our erstwhile guest blogger Prof. Tim Mulvaney has a terrific analysis over on the Environmental Prof Blog: A Hectic Week on the Takings Front.  From the post:

For Takings Clause enthusiasts, the past week has proven a busy one.  Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.

Tim's post discusses the Texas Supreme Court's final decision in Severance v. Patterson; the New Jersey case of Harvey Cedars v. Karan; and the SCOTUS cert grant in Arkansas Game & Fish Comm'n v. U.S.  Exciting times in the takings world.  Read Tim's whole post for a good analysis. 

Matt Festa

Salkin on Callies on Regulation in Hawai'i

Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:

In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.

This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.

Matt Festa

Wolf on the Supreme Court and the Environment

Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012).  Here's the Amazon blurb:

Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.

And for a preview, Prof. Wolf has posted the introduction on SSRN.  The abstract:

This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.

What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.

 Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.

Matt Festa

Nolon on Land Use for Energy Conservation and Sustainable Development

John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:

Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.

In the footnotes, Prof. Nolon notes that this is part of a trilogy:

FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POL’Y REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].

This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.

Matt Festa

Georgetown Releases Climate Adaptation Tools

From Vicky Arroyo at the Georgetown Climate Center:

Climate change may be a politically charged topic in Washington, but as we all know, states and communities don't have the luxury of waiting for the federal government to act.  

Facing extreme storms, flooding, drought, and water shortages, those on the front lines are responding now to the impacts of climate change (whether they use the words "climate change" or not) and are being forced to rethink planning for everything from roadway design and location to building standards to development along our nation's coasts.

 

Please join us for an important discussion and webinar on Tuesday, Nov. 1, [1 p.m. Eastern] when the Georgetown Climate Center will release the following tools and reports to help policymakers, reporters, and others locate and pursue policies that enable communities to adapt to climate change:

• The Adaptation Clearinghouse - A new online community and database to help planners find and share policies that address climate change impacts.  Policymakers, reporters, and the public can find adaptation policies and plans created for their communities.    
• Adaptation Case Studies in the Western United States - Two new case studies explore water shortages in the West and the protection of a ground-dwelling bird: the greater sage grouse.  The report looks at the policies and unique approaches being adopted in Colorado and Wyoming, in particular, to tackle the problems - even though the solutions may not be adopted with the sole intent of addressing climate change.    
• Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use - A new report issued by the Georgetown Climate Center looks at 18 existing land use tools that communities can use to prepare for rising sea levels and the flooding that will result from climate change.

Please join me along with Jason Vogel, co-author of "Adaptation Case Studies in the Western United States"; Jessica Grannis, author of "Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use"; and Cristina Rumbaitis Del Rio of the Rockefeller Foundation for this important webinar. 

You can link to the Webinar from this page.

Jamie Baker Roskie

 

Hirokawa & Gottlieb on Sustainable Habitat Restoration

Keith H. Hirokawa (Albany) and Charles Gottlieb have posted Sustainable Habitat Restoration: Fish, Farms, and Ecosystem Services. The abstract:

The conversion of estuarine marshes and floodplains to agricultural uses through diking, draining, and filling has left little adequate salmon habitat and, as a result, has been a critical factor in the decline of salmon populations. Current efforts to restore salmon by reestablishing ecosystem functionality. In particular, it has become more common to include dam and dike breaches as feasible solutions. Of course, there is a cost involved in habitat restoration, even if it is not an obvious environmental cost.

This article examines the dialogue on salmon valuation by contrasting the historical view of salmon-as-commodity with insights from "ecosystem services." This emerging trend in ecological economics will play a critical role in justifying restoration projects and formulating sustainability strategies; ecosystem services valuation is showing that investments in natural capital can provide substantial returns. This article also provides a case study of the Smith Island Habitat Restoration Project in Snohomish County, Washington. Smith Island, which was converted to farmland a century ago, exhibits enormous potential value for habitat restoration and begs for an inclusive process that considers the voices for economic, human, and ecosystem well-being. The resolution of the Smith Island controversy provides an insightful example of how a sustainability framework can be useful in showing that restoration strategies can offer substantial benefits to other lands uses and interests.

Matt Festa

 

2011 Conference on Litigating Regulatory Takings

John Echeverria (Vermont) sends along the announcement for the 14th annual Conference on Litigating Regulatory Takings Claims:

The 14th Edition of the Conference on Litigating Regulatory Takings Claims will be held this year on November 18 on the GULC campus in Washington, D.C. The conference will be co-sponsored by Vermont Law School and Georgetown University Law Center. Additional co-sponsors include: American Planning Association, Planning and Law Division; International Municipal Lawyers Association; Maryland Municipal League; National Association of Counties; National League of Cities; National State Attorneys General Program at Columbia Law School; U.S. Conference of Mayors, and Virginia Municipal League.

 

Speakers include: Mark Barron, J. Peter Byrne, David Callies, Martin R. Cohen,

Steven J. Eagle, John D. Echeverria, Mark Fenster, Denise G. Fjordbeck,

Alexandra B. Klass, Robert Meltz, Thomas W. Merrill, J. Michael Ponder,

Joseph L. Sax, Christopher Serkin, Daniel L. Siegel, Gregory M. Stein,

A. Daniel Tarlock, and William M. Treanor.

 

Looks like a great lineup once again.  For more information, the conference website is http://www.vermontlaw.edu/Takings2011/.

Matt Festa

Texas Supreme Court abates Severance v. Patterson

I was on the road for about a month with very little internet access (more on that to come).  Fortunately, my land use students keep me up to date on things.  Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness.  I asked him to write it up for our readers, and here's what he has to say:

For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed.  The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward.  Needless to say, this has caused a stir in the courts and among legal scholars.  During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here,  here, and here.

On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront.  Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory.  To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups.  The court granted rehearing in Severance and heard arguments four months ago, in April. 

The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot.  The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit.  Both parties submitted briefs on the issue of mootness.  See State’s brief on mootness; Severance’s brief on mootness.  Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness.  The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided. 

Is This The End?

Find out after the jump!

Continue reading

Mulvaney guest-blog on Severance's latest development: Mootness?

[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March.  Here are his thoughts on the latest development in the case.  Thanks!--Matt Festa]

The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here).  The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit. 

At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance.  Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach.  Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement. 

In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance.  The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland. 

Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case.  The Court ultimately conducted a second round of oral argument in April.  Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).

Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.”  Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”

Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy. 

In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue.  The Court obliged.  The State filed its brief today, and Ms. Severance’s response is due next Tuesday.  Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.

Timothy Mulvaney