Land Use Prof Blog

Marco Rubio was a land use lawyer

Land Use Prof Blog is a completely non-partisan forum, but I was fascinated to read this recent article in the Colorado Springs Gazette (apparently picked up from AP) about Marco Rubio's early career as a land use lawyer.  (I'm guessing the article appeared in a Colorado publication because the Colorado caucuses are on "Super Tuesday," March 1, although the Colorado Republicans will not actually be caucusing for Presidential candidates, leaving that to their delegates at the national convention.)  

It's not often that a zoning lawyer rises to national political prominence.  The article is also interesting because it discusses Rubio's work for clients vis a vis his position in the Florida Legislature, and seems exemplary of the role of politics in local land use decisions.

Jamie Baker Roskie

With Scalia Gone, Pacific Legal Foundation Loses Ally on Property Rights

High Country News is a print and online publication that offers excellent coverage of news related to Western issues.  Yesterday Elizabeth Shogren, their "DC Dispatch" reporter, posted a fascinating article entitled "Scalia was Supreme Court’s leader on limiting environmental rules: A conservative legal foundation fears its winning streak may be over."

In his opinion in the 2006 Clean Water Act case known as Rapanos, one of the Pacific Legal Foundation’s biggest triumphs, Scalia criticized “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations.”

Scalia’s death dims the Pacific Foundation's chances in a major environmental case on the horizon. The Supreme Court is expected to eventually review Obama’s Clean Water Rule, which has been stayed by a lower court. Significantly for the arid West, the rule would protect tributaries, no matter how frequently water flows in them, as well as some wetlands, ponds and ditches. "With Justice Scalia’s departure, it’s fair to say it’s more likely to be upheld," Schiff says. “The impacts will be principally in the West. It’s precisely in the areas that are dry most of the year that you have the most significant disputes about the Clean Water Act.”

The article also discusses the potential impact to the Clean Power Plan, as well as the impact to administrative-law-related decisions generally.

Jamie Baker Roskie

 

More on Scalia's Land Use Legacy

Yesterday our fearless leader, Stephen R. Miller, blogged about Justice Scalia's three most important land-use-related decisions.  I agree with his assessment that Nollan and Lucas are two of the most influential takings cases ever decided, and certainly Rapanos' change in wetlands regulation are had a dramatic effect on the development industry and control of water quality (although arguably Justice Kennedy's concurrence with its "significant nexus" test is more relied upon by regulators).

Inspired by Stephen, I perused the list of Scalia-authored opinions and found a couple more of interest.  In the vein of my previous post about how Scalia's passing will likely result in the survival of President Obama's Clean Power Plan, I also think Scalia's decision in Michigan v. EPA was highly influential. It held that the EPA must consider cost when deciding whether regulations under the Clean Air Act is "appropriate and necessary." (Bob Sussman wrote about the impact of Michigan v. EPA for the Brookings last summer.)

Also, a somewhat lesser known but important Scalia-authored case was City of Columbia v. Omni Outdoor Advertising (1991), in which the court upheld anti-trust immunity for local governments enacting zoning restrictions - in this case, those that regulated signs. (Linda Greenhouse covered the case for The New York Times.) Although this case lacks the colorful language of some of Scalia's more recent opinions (primarily dissents), it is interesting reading for those of us who care about the limits of local government police power.

Jamie Baker Roskie

 

 

Vermont Law Environmental Clinic Seeks Fellows

David Mears, director of the Environmental and Natural Resources Law Clinic at Vermont Law, has asked us to publicize the upcoming deadline for their fellowship. 

The Environmental and Natural Resources Law Clinic (ENRLC) is pleased to invite eligible candidates to apply for a two-year Clinic Fellow position from June 1, 2016 through May 31, 2018. The fellowship combines the opportunity to obtain an LLM degree in Environmental Law from one of the leading environmental law programs in the nation with the opportunity to work with experienced environmental attorneys and students in a clinic focused on public interest cases. 

This is an excellent opportunity for young lawyers interested in clinical teaching. Vermont Law has an unmatched program in environmental and land use law, with some of the leading scholars, teachers and practitioners on their faculty. Plus, they're just really great folks.  Please share this announcement widely.

Jamie Baker Roskie

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.

 

Another Victory for Environmental Clinics

Helen Kang has been a wonderful mentor to me, and so I like to celebrate her victories.  Helen is the Director of the Golden Gate University Environmental Law & Justice Clinic and this week she shared this news:

The Stanford Environmental Clinic, as lead counsel, and the Golden Gate University School of Law’s Environmental Law and Justice Clinic, representing a diverse group of clients, won a challenge to California’s deficient regulation of water pollution from irrigated growing operations in one of the largest farming regions in the state – the Central Coast region. The state court’s 44-page decision affects 435,000 acres of farmland. This victory couldn’t have been achieved without the excellent work of our wonderful clients (including Pacific Coast Federation of Fishermen’s Ass’n; Environmental Justice Coalition for Water; Ms. Manzo who has not been able to use tap water because it is polluted; Monterey Coastkeeper; and Santa Barbara Channel Keeper); our co-counsel California Rural Legal Assistance; the staff attorneys at our two clinics, in particular Matt Sanders, Alicia Thesing, and Drew Graf; the many students who wrote briefs; and the two Stanford 3Ls and the Golden Gate graduate fellow (since the hearing was held in May after the Golden Gate students were gone from the clinic). 

The case was covered in this article in the Monterey County Weekly. Congratulations to Helen and her colleagues and students.

Jamie Baker Roskie

A Little Shameless Self Promotion

It's been about a month and a half since I last posted to the LUPB, but nobody's changed the password on me, so I guess I'm still welcome!  For those few of you who might have been following my career since I left UGA, I'm finally about to open my own practice in Northern Colorado. Also, following the path of Fair Shake Environmental Legal Services, about which I have blogged a bit in the past, I hope to open a law firm incubator for young lawyers who want to do land use and environmental practice in the West.

I've started my own blog about what I'm up to nowadays - I hope some of you will check it out. And, from time to time I'll still check in here (as long as ya'll will let me).

Jamie Baker Roskie

Should More Land Use Professors be Libertarians? Part II

This post is, again, cross-posted fom the Concurring Opinions blog.

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent the aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning?

Nuisance Law

The common law of nuisance, a favorite of libertarian land use scholars, would appear to solve some of the problems of a free-market system, such as the refinery locating near a single-family home. But what if, instead of a refinery, it’s a bowling alley?   A tavern? A cemetery? Are any of these nuisances? On that note, is subdividing my property into 100 new lots a nuisance? In all of these cases, the answer is … maybe. It depends on the severity and nature of the impact on my neighbors, the existing precedent on nuisance law in the particular state, and, most importantly, how the judge assigned to the case chooses to balance the interests involved.

This, of course, is exactly the problem. If local government land use control has been criticized for subjecting landowners to uncertainty about permissible uses of their property, for forcing developers to go through an expensive and time-consuming process to get permits, for picking winners and losers based on crass political concerns such as campaign contributions, the process of “judicial zoning” through nuisance law is little better. First, nuisance law is, if anything, more uncertain and expensive than local government land use control. Nuisance doctrine is so ambiguous that no landowner can ever know with certainty what his or her rights are without resorting to a highly fact-intensive litigation, which will inevitably involve a massive expenditure of time and money. (And Coasean bargaining won’t work if people don’t know their rights.) Second, judges inevitably pick winners and losers in nuisance cases, and while we might expect a judge – even an elected one – to rule on the legal merits of a nuisance case rather than political considerations, the nuisance inquiry is so vague and policy-driven (e.g., harm v. utility) that judges necessarily end up making value judgments about what land uses they find desirable and undesirable. Moreover, though judges – again, even elected judges – are surely less influenced than legislators by political concerns like campaign contributions, public choice research has shown that the judicial decision-making process shares many of the abuses that plague the political process – such as the dominance of repeat players and the ability of small, well-organized interests to exercise disproportionate influence.

To go a step further, the fact that local government decisionmaking is “political” whereas judicial decisionmaking is not (at least in principle) is precisely what makes local government land use control superior. When local officials make land use decisions, members of the community will at least have the opportunity to influence them through the political process. By contrast, a judge hearing a nuisance case is likely to be far less sensitive to the full array of interests affected by its decision, both because the adversarial nature of common-law litigation precludes anyone but the parties from being heard, and because judges, even when elected, are generally (and hopefully!) less amenable to pressure from voters than are local politicians.

The question, as my favorite economist Bill Fischel puts it, is whether we would rather be ruled by judges or by legislators. Though the choice, as I have presented it here, is an unpleasant one, the balance of the evidence seems to favor legislators. Judges have long understood this, and they have consciously assumed a passive and deferential role in the land use process from the beginning (Indeed, it is notable that the foundational 1926 case upholding the constitutionality of zoning, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), was authored by perhaps the most libertarian justice of all time, George Sutherland. Sutherland’s opinion made a point that zoning was necessary because nuisance law had become an inadequate means of dealing with modern land use problems.)

Nevertheless, there is something unsatisfying about this justification for local government land use control, even for leftists. The leftist vision for local government is an optimistic one, rooted in the belief that local government offers an opportunity to realize our highest aspirations for democratic self-government.  The local-government-as-least-of-all-evils argument is for us an unacceptably pessimistic view of government, and its insistence on a merely quantitative accounting of the relative demerits of various systems of land use control invites every armchair empiricist to place a thumb on the scale in favor of his or her own preferred arrangement. On the other hand, given the unsparing descriptive account of local government detailed in my previous post, how can leftists be so optimistic? I will address that question in my next post.

Ken Stahl

Mayors Clean Drinking Water Summit

In early August, microcystin from toxic algal blooms in Lake Erie forced officials to issue a “do not drink” order for all municipal water users in Toledo.  The drinking-and-cooking ban affected nearly 400,000 people and lasted for two days, leaving residents scrambling for bottled water.  Given that some 40 million people in the U.S. and Canada rely on the Great Lakes for drinking water, Toledo’s experience was something of a wake-up call for leaders throughout the region.

Last week, mayors and officials from cities throughout the Great Lakes and St. Lawrence watersheds met  at the Mayors Drinking Water Summit in Chicago to discuss measures needed to prevent the kind of pollution that poisoned the water in Toledo.  A biggest culprit in polluting the water is excess phosphorus loads in runoff, which feeds toxic algal blooms.  The mayors called for concrete steps to address both agricultural and urban sources of runoff:

• For the EPA to establish a common limit and an emergency response protocol for microcystin in drinking water for the Great Lakes and St. Lawrence region; 
• For Great Lakes states to establish a phosphorus open lake water quality standard;
• For agriculture to further reduce the runoff from farms into Lake Erie, including better nutrient management and application of the ‘4R Nutrient Stewardship’ program; 
• For municipalities to further reduce phosphorus loadings through more green infrastructure, better treatment plant operations, and pollution prevention measures.

One aggravating factor in the spikes the increasing prevalence of high-precipitation rain storms occasioned by climate change.  Heavy storms strip fertilizer from fields and cause municipal sewer systems to overflow, causing large spikes of excess phosphorus to flow into the Great Lakes.  Cities sorely need upgrades to antiquated sewer systems that overflow during heavy rain events.  In the meantime, cities can better prepare for these intense storms by working to increase the amount of green infrastructure—green roofs, wetlands, and vegetation—to capture rainfall as it occurs and filter runoff.

Last week municipal leaders and environmental groups stood together in calling for swift and sensible action.  What happens from here remains to be seen, but if there is one environmental issue that pretty much everyone can get behind quickly it’s that the water that flows from the tap should be safe enough to drink.

On another note: this is my last guest post here at Land Use Prof Blog.  Many thanks to Jess Owley and Stephen Miller for inviting me into the conversation.

~Celeste B. Pagano, DePaul University College of Law

Climate Week in NYC

All things climate change are about to descend on NYC. Revolving around next week’s UN Climate Summit (Sept. 23), more than 100 events are being planned for NYC’s Climate Week. Here are just a few: 

People’s Climate March:
Sunday, Sept. 21 at 11:30 a.m.
Location: Meet at Central Park West, between 59th & 86th Streets in Manhattan. The march will end at 11th Ave. between 34th and 38th Streets.

Promoters are heralding this as a "massive, history-making march," with hundreds of coordinating actions throughout the world. 

Interfaith Summit on Climate Change:
Monday, Sept. 22 from 9-11 a.m.
Location: Saint Peter’s Church, 619 Lexington Avenue, New York, New York
Morning discussions on ethics, spirituality, climate change and faith communities, divestment and renewable energy. Registration is required, but there is no admission cost.

UN Climate Summit:
Tuesday, Sept. 23
(Invitation only)
By invitation from UN Secretary-General Ban Ki-moon,  more than 120 heads of state as well as other world leaders, including EPA Administrator Gina McCarthy, have committed to attend the summit, with a goal of galvanizing action to reduce emissions, strengthen climate resilience, and mobilize political will for a meaningful legal agreement in 2015. 

Rising Seas Summit:
Sept. 24-26
Location: Crowne Plaza Times Square, New York, NY
EPA Regional Administrator Judith Enck will be speaking at a lunch plenary session with other environmental leaders on the first day of this inaugural event. Online registration is available until Sept. 22 only.  

Find more NYC Climate Week events at www.climateweeknyc.org and http://milanoschool.org/climateaction. Read more about NYC Climate Week events and other NYC sustainability initiatives at the EPA blog Greening the Apple.

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).

"Big Box" Costco agrees to cut greenhouse gas refrigerant emissions nationwide

EPA describes this week's settlement between the United States and Costco as indicative of a more aggressive policy by the federal government to use the Clean Air Act to prosecute the largest GHG emitters, including grocery stores -- a continuing shift in federal priorities that will be of interest to state and local government law practitioners and scholars, as well as those of us who focus on the intersection of local land use law and climate change.

In a settlement announced on Wednesday by the DOJ and EPA, Costco agreed to cut its emissions of GHGs from refrigeration equipment at more than half of its stores nationwide. Costco will also pay $335,000 in penalties for CAA violations and improve refrigerant management at 274 stores at an estimated cost of $2 million over the next three years.

Sam Hirsch, acting assistant attorney general for the Justice Department's Environment and Natural Resources Division, responded to the settlement, saying

"Industry needs to lead the way in abandoning harmful chemicals in favor of using and developing greener, environmentally friendly alternatives to protect our health and our climate."

EPA and DOJ announced that the measures required by the settlement are expected to reduce Costco’s GHG emissions by the equivalent of approximately 30,000 metric tons of carbon dioxide per year. The GHG at issue in the settlement is actually hydrochlorofluorocarbon (from leaks of the refrigerant R-22), which is a more potent GHG than carbon dioxide.

Some may question whether the settlement requires enough of Costco, the nation's second largest retailer, given annual revenues of over $100 billion (in 2013, as reported by EPA).  

The proposed settlement is subject to a 30-day public comment period and final court approval.

Read the proposed settlement and related documents here.

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).

Rissman, Owley, Thompson and Shaw on Adapting Conservation Easements to Climate Change

Adena Rissman (Ecology-Wisconsin), (our very own) Jessie Owley (SUNY-Buffalo), Buzz Thompson (Stanford) and Rebecca Shaw (Env. Defense Fund) have posted Adapting Conservation Easements to Climate Change, Conservation Letters (2014).  Here's the abstract: 

Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. While only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent, partial property rights. CEs often have multiple, potentially conflicting purposes that protect against termination but complicate decisions about principled, conservation-oriented adaptation. Monitoring is critical for shaping adaptive responses, but only 35% of CEs allowed organizations to conduct ecological monitoring. Additionally, CEs provided few requirements or incentives for active stewardship of private lands. We found four primary options for changing land use restrictions: CE amendment, management plan revisions, approval of changes through discretionary consent, and updating laws or policies codified in the CE. Conservation organizations, funders, and the IRS should promote processes for principled adaptation in CE terms, provide more active stewardship of CE lands, and consider alternatives to the CE tool.

Jim K.

 

Farber on Property Rights and Climate Change

Daniel Farber (UC Berkeley) has posted Property Rights and Climate Change, his Wolf Family Lecture on American Law presented just last month at the University of Florida.  Here's the abstract:

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.

A web video of the Lecture is available here.

Jim K.

McLaughlin on Perpetual Conservation Easements in the 21st Century

Nancy McLaughlin (Utah) has posted Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?, 2013 Utah L. Rev. 687.  Here's the abstract:

The public is investing billions of dollars in conservation easements, which now protect an estimated 40 million acres throughout the United States. But all is not well. Uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as a land protection tool. This short article is part of a series of articles published in the law review discussing conservation easements, with a focus on what we have learned thus far and where we should go from here. This article sets the stage by describing the dramatic growth in the use of conservation easements, the various laws that impact easement creation and administration, a timeline of important legal and policy developments, and the recent surprising lack of certainty and consensus regarding what it means to protect land “in perpetuity” or “forever” with a conservation easement. The article concludes by discussing how the perpetuity issue might be productively resolved.

 

Jim K.

Fair Shake Environmental Law Services Resident Job Posting

I am now serving on the board of a new law firm incubator. We are recruiting residents and senior attorneys.  The resident job posting is below.  (If you, or someone you know, is interested in the senior attorney position you may message me on Facebook or LinkedIn for more information.)

Fair Shake Environmental Legal Services is designed to incubate legal services start-ups in the area of environmental law for underserved, modest means clients. The purposes of the organization include the education of attorneys in serving modest means clients, increasing equal access to justice, and community empowerment for the tri-state region of Pennsylvania, Ohio, and West Virginia. Fair Shake advances local, community decisionmaking about community health, environmental protection and cleanup, and development by providing access to justice for individuals and groups that are currently underserved.

In our start-up phase, Fair Shake will have offices in Pittsburgh, PA and Kent, OH. We anticipate opportunities for geographic expansion. Fair Shake staff will include the following positions: an Executive Director and 2 Senior Attorneys (1 heading each office), 4 Resident Attorneys (2 per office) in 2-year contract positions, and a single Administrator position to serve both offices.

Residents, selected by a rigorous application process that includes the provision of draft business plans, will be trained to start-up their own firms upon departure from Fair Shake ELS. The incubator is designed to put residents in the context of the practice that they will run themselves, including practical skills growth in client development, identifying potential business investors, billing and pricing, law office management, and budgeting. During the time that residents practice environmental law in the incubator, they will also refine their business plan and secure investors under the guidance of senior-level staff at the incubator. Due to the constant production of resident attorneys from the incubator who will start up environmental practices for underserved clients, the incubator will catalyze businesses that will fill the gap in environmental legal services in the region over time.

Resident Attorney Job Description

Fair Shake ELS is looking for bright, motivated attorneys who want to build small or solo environmental law practices for modest means clients in the Appalachian Basin region. We are hiring attorneys interested in increasing access to justice in environmental matters and public participation in environmental decision-making. Our Resident Attorneys enjoy collaborative case development, but also can work independently.

Resident Attorneys will be part of a legal team in either Pennsylvania or Ohio dedicated to providing environmental legal services to modest means clients. Residents will build a client base geared toward their own environmental practice goals while training in the business of a law practice serving modest means clients. Resident Attorneys will spend time every week on both case development and business planning. Resident Attorneys are expected to work to start-up their own environmental practices within the tri-state region of Ohio, Pennsylvania and West Virginia after spending 2 years at Fair Shake ELS. Options will exist for continued support from the Fair Shake staff after the 2-year residency period.

Resident Attorneys will work on a diverse scope of environmental matters, but may focus in areas of desired practice development. Anticipated case matters include permit appeals, civil litigation, citizen suits, permit and rule comments, administrative petitions, land use hearings, gas lease reviews and negotiations, compliance counseling, community educational presentations, and opinion letter development. Residents will fully engage in all aspects of case development.

Resident Attorneys will report directly to the Senior Attorney heading their office.

Desired skills and qualities:• Training and experience in the full spectrum of environmental and administrative legal issues;• Training in client interviewing and counseling, administrative procedure, and trial advocacy;• Experience and training in legal drafting, research, and effective communication;• A strong interest in starting a small environmental legal practice in the tri-stateregion;• Demonstrated effectiveness in both collaboratively- and independently produced work product and performances;• A commitment to: promoting fair treatment and meaningful involvement of all people,regardless of race, color, national origin, or income in the development, implementation, and enforcement of environmental laws, regulations, and policies; providing legal representation to allow equal access to the environmental decision-making process and to foster equal protection under the law for the health, preservation and restoration of natural, scenic, historic, and esthetic values of the environment; educating young attorneys in legal services entrepreneurship and incubating start-up legal services organizations to serve the environmental legal needs of underserved low- and middle-income clients; and empowering communities and stimulating economies in the Appalachian Basin region by providing environmental legal services and counseling to allow the underserved to make decisions about practical and innovative solutions to complex environmental challenges across the region.

Minimum Qualifications

Candidates should possess:• A minimum of 1-3 years of legal practice experience (experience in a clinical program during law school may count as 1 year of experience in legal practice);• Current Ohio or Pennsylvania Bar membership or willingness to become licensed in those states within 6 months from the date of hire. Resident Attorneys must be willing to travel across the State or Commonwealth and to other Fair Shake offices as needed.

Compensation & Benefits

Fair Shake offers a competitive non-profit salary commensurate with skills and experience as well as a comprehensive benefits package that includes 15 days paid vacation, medical, dental, life insurance, disability, and a retirement savings plan.

To Apply

E-mail a letter of interest, curriculum vitae, transcript, and a writing sample to Emily Collins, Executive Director, at [email protected] by March 31, 2014. The letter of interest should include the outline of a proposed business plan to serve modest means clients to meet their environmental legal services needs. Please include the proposed geographic scope of your practice, the particular areas of environmental law in which you would like to focus, a basic operational budget, and your practice goals. Fair Shake Environmental Legal Services is an Equal Opportunity Employer. We are committed to diversity in our workforce.

Fromherz on Community Consent to Environmentally Significant Projects

Nicholas Fromherz (Lewis & Clark) has posted From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects, 116 W. Va. L. Rev ___ (2013).  Here's the abstract:

Since the United States enacted the National Environmental Policy Act (NEPA) in 1969, nations all around the world have adopted similar statutes. What started as a unique response to the American environmental movement grew to become a nearly global standard. Although the details of the regimes vary from country to country, there are two constants: (1) the regimes force the government to consider environmental impacts before conducting or authorizing projects, and (2) they allow some degree of public participation. This article focuses on the latter of these two features.

Public participation in NEPA-style regimes generally means public consultation: information is disseminated and civil society is allowed to comment. Depending on a range of factors — some political and some legal — comments may influence the circumstances under which a project takes place or whether it occurs at all. Though the public’s influence is often limited in practice, the mere fact of public participation at the project level — as opposed to participation at the candidate level through elections or at the issue level through referenda — is exceptional. In the U.S. and many other countries, NEPA and its counterparts represent a break from the normal rule of executive decision-making by encouraging public involvement and deliberative, participatory democracy.

Despite the progress, critics have accused these regimes of falling short. In practice, public consultation under NEPA-style frameworks is severely limited in terms of who participates, how many participate, and the extent to which this participation impacts the decision-making process. This is not surprising. By its very nature, consultation implies limited influence.

In this article, I argue that policy-makers, both domestic and foreign, should replace consultation with consent as the public-participation requirement in certain cases. Although the concerns leading to the inclusion of public consultation in NEPA and its foreign counterparts were many, one of the more important ideas was that those persons affected by environmentally significant projects should have a say in the matter. Unfortunately, the consultation approach has proven increasingly ineffective. If the goal is to match influence with stake, consultation is the wrong mechanism.

Requiring consent, even in a limited number of cases, may seem like an extreme remedy. Not so. It is an attractive way to respond to a situation inherent in many major public works (especially infrastructure and energy projects) and in large-scale private endeavors on public land (especially extractive projects). While the benefits of these projects are often spread around an entire nation or large region, the environmental costs are frequently concentrated within a small, local community (the site community). Requiring the consent of the local site community insures that its interest is adequately accounted for in the decision-making process.

I am always glad to see authors taking on the question of strengthening community control of land resources especially as a response to a particular impact, as Rachel Godsil and I have each written about in the urban context.  Fromherz dedicates some important discussion to defining the affected community, a problem made even more interesting in his piece by the overlay of the rights of indigenous inhabitants. 

 

Jim K.

Echeverria's Take on Koontz

John Echeverria (Vermont) has just this week posted Koontz:  The Very Worst Takings Decision Ever?.  In it, he takes on both of the U.S. Supreme Court's holdings in its most recent land use decision and spells out how they will inhibit development planning discussions at the local level.  Here's the abstract:

This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis.  Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community.  Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review. 

Jim K.

Green Siting for Green Energy

I have been lucky enough to find myself in collaboration with Amy Morris of Aspen Environmental Group. We have been working on three papers about the renewable energy development, specifically the utility-scale solar projects in the California desert. As often seems to happen, our initial paper got too long and cumbersome and we ended up breaking it up. Two of the papers should be out this fall (depending on the pace of the student editors) and the first is available on SSRN in draft form.

This first piece, Green Siting for Green Energy, gives some broad strokes about solar energy siting and some of teh environmental tradeoffs. Particularly interested in the tradeoffs with agricultural lands, we'll have a whole separate paper on that topic some day soon. Hopefully this short piece (presented at George Washington last April) will whet your appetite.

One of the weirdest things about this article for me: we don't once use the phrase conservation easement. Although we do say conservation a lot and easement a few times. Just not together. We do talk about solar use easements though, which are nowhere near almost as exciting.

Amy Morris, Jessica Owley & Emily Capello, Green Siting for Green Energy, 4 J. Energy & Envt’l L. _ (forthcoming 2013).

Renewable energy development is critical to reducing greenhouse gas emissions. Solar energy projects can replace polluting fossil fuels, but because they are land-intensive, solar projects also have environmental costs. Large projects have the potential to provide hundreds of megawatts of electricity, but could also disrupt huge expanses of undeveloped land. Arrays of solar panels on commercial rooftops or capped landfills allow beneficial reuse of developed sites, but these projects are typically small-scale (less than 1 MW). This tension between renewable energy development and protection of precious landscapes (particularly desert landscapes) creates a conundrum for environmentalists.

This paper examines the tradeoffs involved in siting solar projects, with a particular focus on California. The unique ecosystems and biodiversity in the California desert have made the tradeoffs between environmental benefits and costs of solar projects especially apparent. We look at the current hurdles for “greener” siting of projects in disturbed and developed areas, including the obstacles to permitting distributed generation (DG) projects, smaller-scale projects that may be built on parking lots or rooftops. While both large and small scale renewables are necessary to reduce greenhouse gas emissions, there are many opportunities for greener renewable energy siting. Greener siting must proceed on two fronts. First, as large utility-scale solar facilities will be an important component of a sustainable energy future, we need to improve the environmental review and sustainability of those facilities while being wiser about where we locate such projects. Marginal agricultural land and abandoned mine lands can provide untapped opportunities. Second, distributed generation with solar photovoltaics located across the state will be vital. The key to greener siting of DG is fostering the expansion of renewable projects in disturbed areas, particularly contaminated sites and rooftops and parking lots. A challenge of DG is the number of actors, permits, and environmental review process required. Facilitation and coordination of these processes will speed the journey to a solar energy future.

Jessie Owley

Wiseman on Urban Energy

Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013.  The abstract:

The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.

Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.  

Matt Festa