Friday, July 19, 2013
Well looks like we are about half-way through the summer (depending on the schools schedules in your family). Instead of embarking on a new project this summer, I have committed myself to finish up several projects that have been lingering. One project that is oh so close to completion is a book chapter I wrote for a Cambridge University Press book that Keith Hirokawa is editing.The book is entitled Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach and I think should hit bookshelves before the end of the year. Keith asked me to tackle the subject of nature versus perpetuity, with a particular emphasis on property law. I easily agreed because the topic seemed a natural one for me, but then I had trouble with it. My thesis was: perpetual static property rules make little sense in a changing world. Perfect! The problem was that Keith wanted something longer than a sentence.
As I delved deeper into these issues (and I would be hard pressed to label my approach "constructivist"), I became intrigued with thinking about why we have perpetual static tools. Now, I don't mean how they have evolved. I have written mind-numbingly boring fascinating articles about that in the past. Instead, I was intrigued with what it is about us as individuals that crafts our approach to land conservation the way that we do. In this research, I became intrigued by a few different pschological concepts. In very simple terms, we are not good at thinking about the future. First, when problems and issues are too big, our brains simplify them to make them digestible (or sometimes we just ignore them). Second, when making projections about future conditions, we tend to be overly optimistic. Layer these traits onto a policy for long-term land conservation in an era of increasing landscape changes and you start to see why we have problems. Although the chapter considers other subjects (including how current property laws fail to mesh with lessons from conservation biology), the brief psychology discussion was the most fun for me. Makes me pretty durn thankful that I work at an interdisciplinary school like Buffalo where I could just knock on the door of the psychologist (Chuck Ewing) whose office is next door to mine.
Interested in checking out the book chapter? You can find it here and the formal abstract is below. Interested in seeing what else appears in this book? A few other chapters have been popping up on SSRN as well including ones by Mike Burger, Jonathan Rosenbloom, Robin Kundis Craig, Tony Arnold, and Irus Braverman.
Property Constructs and Nature's Challenge to Perpetuity
Conservation biology and ecology (as well as our eyes and ears) tell us that nature is in a constant state of flux. Yet, models of land conservation focus on preserving the present state of land in perpetuity. Legal concepts that center on the status quo turn a blind eye to the fact that nature is ever-changing. This conflict is illustrated by examining both traditional property servitudes and conservation easements. These restrictions on private land often explicitly state that they are preserving today’s landscape in perpetuity. This chapter explores the inherent conflict between the changing natural world and rigid legal structures, detailing the struggles of applying principles like resiliency thinking and adaptive management to property tools for conservation. It also explores why this disconnect occurs including some discussion of environmental psychology
- Jessie Owley
Tuesday, July 16, 2013
Pamela Ko (Sage Colleges) and Patricia Salkin (Touro College) have posted What Every Land Use Lawyer Should Know About the Emerging Use of Health Impact Assessment and Land Use Decision Making, New York Zoning and Planning Law Report, Vol. 16 No. 6 (May/June 2013). The abstract:
The field of Health Impact Assessment is relatively new to the United States, but already a number of state and local governments are incorporating these assessments into land use planning and decision making. In five years, the use of HIA in the U.S. has increased dramatically with more than 100 HIAs completed or in progress in the U.S. from 2007 to 2010. This article provides a brief overview of HIA in the United States, describes how it is being used in other states with respect to land use decision making, and examines how HIA is starting to be incorporated into traditional land use and environmental decision making in New York.
Add public health to the list that makes land use one of the most interdisciplinary fields of legal practice.
Monday, July 15, 2013
Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013. The abstract:
Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.
Tuesday, July 9, 2013
This month's ABA Real Property "Professors' Corner" teleconference will focus on Koontz, the end-of-Term exactions that is one of the most significant Supreme Court property-rights cases in recent years. (Jessie Owley has discussed it here, and Tim Mulvaney and others have weighed in around the net). This Professor's Corner session should be a good one with several leading scholars participating. Here's the announcement:
Professors’ Corner: Wednesday, July 10, 2013: Koontz v. St. John’s River Water Management District: A Significant Victory for Property Rights?
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, July 10, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent. Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i.
For those that haven’t already seen it, here’s a link to the opinion:
Please join us Wednesday for this great program!
July 9, 2013 in Caselaw, Conferences, Conservation Easements, Constitutional Law, Environmental Law, Federal Government, Property Rights, Scholarship, Supreme Court, Sustainability, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
Friday, June 28, 2013
Helen Kang, director of the environmental law and justice clinic at GGU has informed us about a temporary staff attorney position. See the details below, and act quickly if you're interested. The application period closes July 12, 2013; with tentative start date of August 15, 2013
BASIC FUNCTION AND SCOPE OF JOB:
The Environmental Law and Justice Clinic at Golden Gate University School of Law in San Francisco is seeking a staff attorney with significant litigation experience to serve full-time, from August 15, 2013 to December 31, 2013; and from January 1, 2014 to April 30, 2014, to job share with another staff attorney. This is a temporary position and will not be extended.
ABOUT THE CLINIC:
Established in 1994, the Clinic is part of the law school and is staffed by students, two graduate fellows, and two full-time professors. The Clinic trains students to become effective, ethical lawyers, while providing excellent service to low-income communities and communities of color bearing disproportionate environmental burdens. The Clinic has successfully reduced pollution from refineries, power and manufacturing plants, and military facilities. Its work has also contributed to landmark decisions ensuring that California relies on renewable energy, conservation, and efficiency to fight climate change. See http://digitalcommons.law.ggu.edu/eljc/18/.
The attorney will have primary responsibility in fast-paced California Public Utilities Commission proceedings and in cases against pollution sources and government agencies, co-teach the Environmental Law & Justice Clinic seminar, and closely supervise law students in all aspects of case work.
Member of the California State Bar in good standing
Extensive litigation experience, with aptitude and ability to take primary responsibility in Clinic cases, including those involving trials
Superb analytical, research (factual and legal), writing, and oral communication skills
High degree of professionalism in all aspects of lawyering, including in dealings with staff, colleagues, and opponents
Familiarity with energy and administrative law preferred
Strong interpersonal skills to be able to effectively supervise students, collaborate with colleagues, and job share
Strong work ethic
Ability to adhere to the school’s policies, including the ability to handle confidential and sensitive information, and to deal with a wide variety of student concerns
Apply by July 12, 2013, through http://www.ggu.edu/jobs. Applicants must apply online via the GGU job board and upload a cover letter highlighting your qualifications, resume, writing sample, and list of references.
Jamie Baker Roskie
Tuesday, June 11, 2013
Michael C. Blumm (Lewis & Clark) and Andrew B. Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been. The abstract:
The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations.
This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.
Monday, June 10, 2013
This Essay, based on a presentation at Duke Law School’s 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services and why it is worth considering using the ecosystem services concept in public land policy. Part II proposes several key research paths that must be addressed before federal lands can be effectively managed for ecosystem service flows. Part III bears down on the different roles federal lands might play in promoting or participating in markets for ecosystem services.
Wednesday, March 13, 2013
Craig Anthony (Tony) Arnold (Louisville) has posted Framing Watersheds, forthcoming in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach, Keith Hirokawa, ed., Cambridge University Press, 2013. The abstract:
Watershed institutions have emerged in the U.S. out of the structural fragmentation and functional inadequacies of several areas of law and policy. While these institutions organize governance, planning, and management functions around a type of ecosystem (i.e., watersheds), they are highly diverse and evolve over time. This book chapter seeks to understand the diversity of watershed institutions by employing framing analysis to identify the many cognitive and socio-political frames by which the legal system conceptualizes watersheds. More importantly, the chapter analyzes whether watershed institutions have adaptive capacity and can promote ecological and social resilience over time. The processes of multiple framing (multi-framing) and reframing, as seen in several case studies of multi-faceted and evolving watershed institutions, offer considerable promise for society and its watershed institutions to adapt to complex and dynamic conditions. The book chapter explores the barriers to and problems with multi-framing and reframing processes, as well as the opportunities for and benefits of multi-framing and reframing, in light of emerging scientific and social theories about resilience and systemic change.
Tony is a friend of this blog and an occasional Contributing Editor, as well as a leader in the emerging areas of sustainability and adaptive management. Looks like an interesting volume by Keith Hirokawa and others.
Thursday, March 7, 2013
Dave Owen (Maine) has posted Taking Groundwater. The abstract:
In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.
This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.
The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.
An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.
March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 20, 2013
John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013). The abstract:
We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.
Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.
Wednesday, February 13, 2013
The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:
Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.
This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.
Cost and Registration
The symposium is free and open to the public.
Registration is suggested by Friday, February 15.
To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
February 13, 2013 in Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Federal Government, Local Government, Oil & Gas, Politics, Scholarship, State Government, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Friday, January 4, 2013
Living in Pennsylvania (as I now do) I feel compelled to see the new Matt Damon movie "Promised Land," which opened in local theaters yesterday. The movie is about fracking, and the trailers look very intriguing. (I saw the trailer while seeing Tom Cruise's new movie "Jack Reacher" which, while most notable for multiple visceral fight sceens and car chases, also has a land use angle - SPOILER ALERT the villians are developers trying to get an advantage in a development project in downtown Pittsburgh.)
Today I was searching for a review of Promised Land and I stumbled across this article on NPR.org, which had an interesting critique of a scene where local citizens vote on whether fracking would happen in their town.
The film remains in the realm of fiction as the town debates an upcoming vote on whether drilling and fracking should be allowed. In the real world, there's almost never a vote.
"In Pennsylvania, where this film was made, municipalities have very little authority over what happens," says Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council. "They certainly don't get an up-and-down vote."
Still, I think this movie is a "don't miss" for land use afficianados, and I plan to see it soon.
Jamie Baker Roskie
January 4, 2013 in Clean Energy, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Local Government, Oil & Gas | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 1, 2013
Robin Kundis Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective, forthcoming in Public Land & Resources Review (2013). The abstract:
When President Harry Truman proclaimed federal control over the United States’s continental shelf in 1945, he did so primarily to secure the energy resources — oil and gas — embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: First, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources.
Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This
Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.
Tuesday, December 18, 2012
Sometimes it is the studies with obvious sounding results that are the most helpful. A recent study of protected forest areas in Costa Rica examined levels of regrowth in those areas. Previously studies had really only assessed whether protecting areas prevented degradation. Happily, the study reveals that not only do you prevent deforestation and degradation by setting up protection areas, you also get some reforestation and improved forest health. Interestingly, the results did not vary by level or method of protection. Just setting aside the land made reforestation more likely. (Unless you are at a university or employer with access, you may have to pay for the article, which will appear in the next edition of Conservation Letters.) Abstract Below --
Global efforts to protect forest biodiversity and ecosystem services rely heavily on protected areas. Although these areas primarily aim to prevent losses from deforestation and degradation, they can also contribute to restoration. Previous evaluations of protected area impacts focus on avoided deforestation and fires. In contrast, we focus on the additional regrowth induced by Costa Rica's renowned system of parks and reserves. We use a quasi-experimental empirical design to control for confounding baseline characteristics that affect both regrowth and the assignment of protection. Between 1960 and 1997, an estimated 13.5% of previously unforested lands inside protected areas reforested because they were afforded protection. The level of additional regrowth does not vary by the strictness of protection. As in previous studies of protected area impacts on avoided deforestation, estimators that do not account for non-random assignment of protection can overstate protected areas’ impacts on regrowth by nearly double.
- Jessie Owley
Friday, November 23, 2012
Tony Arnold (Louisville) sends word that he has co-authored a chapter with Lance Gunderson (Emory--Environmental Studies) called Adaptive Law, forthcoming in the book Resilience and Law, Craig R. Allen & Ahjond S. Garmestani, eds., Columbia University Press, 2013. The abstract:
This book chapter proposes a bold sweeping set of characteristics of "adaptive law": features of the legal system that promote the resilience and adaptive capacity of both social systems and ecosystems. Law, particularly U.S. law, has been characterized as ill-suited to management of natural resources and the environment for resilience and sustainability. The maladaptive features of U.S. law include narrow systemic goals, mononcentric, unimodal, and fragmented structure, inflexible methods, and rational, linear, legal-centralist processes. This book chapter proposes four fundamental features of an adaptive legal system: 1) multiplicty of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist proceses with feedback loops and accountability. It then discusses these four features in the context of several socio-ecological issues and identifies needs for future study and development of adaptive law, particularly in light of panarchy theory about how complex, adaptive, interconnected systems change over time.
As many land use lawyers already know, Prof. Arnold is one of the leading scholars in establishing the emerging area of adaptive law; this collaboration with Prof. Gunderson looks to be a very helpful starting point for comparing ecosystems and social systems with respect to adaptation to changing circumstances.
Saturday, November 17, 2012
Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom. As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote. Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy. Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change. But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation. As Adler describes:
Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .
Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .
A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.
Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.
The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.
Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels. I look forward to the symposium isse in the Case Western Law Review.
November 17, 2012 in Clean Energy, Climate, Comparative Land Use, Conferences, Environmental Law, Environmentalism, Federal Government, Lectures, Oil & Gas, Property, Property Rights, Scholarship, Water | Permalink | Comments (2) | TrackBack (0)
Thursday, November 15, 2012
Jonathan D. Rosenbloom (Drake), our sometime guest-blogger, has posted his latest piece, Defining Nature as a Common Pool Resource, which will be a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach (ed. Keith H. Hirokawa) (2013, Forthcoming). The abstract:
One of the many ways in which we attempt to understand our relationship with nature is to define it as a “common pool resource.” This definition incorporates several legal, behavioral, and ecological concepts that seek to capture the intricate and complex place where nature and the governance of nature collide. Once we apply the common pool resource definition to nature, we commit – for better or for worse – to accepting the pre-existing framework in which it operates. This chapter seeks to identify the commitments embodied in the common pool resource framework as it applies to nature. It is an attempt to establish a foundation for forthcoming research on how these commitments influence management of natural resources and whether the commitments are consistent with our idea of nature. The chapter begins with a short background on common pool resources and the understanding of theme in the legal literature. The chapter then turns to five conceptual commitments we make by labeling nature as a common pool resource. The goal of this chapter is to explore the intended and unintended consequences of using the common pool resource definition; and question whether it is a beneficial mechanism for understanding and sustainably managing nature.
Friday, November 2, 2012
Keith H. Hirokawa (Albany) and Jonathan D. Rosenbloom (Drake) have posted Land Use Planning in a Climate Change Context, forthcoming in RESEARCH HANDBOOK ON CLIMATE ADAPTATION LAW, Jonathan Verschuuren, ed., 2013. The abstract:
Although local governance is an experiment in adaptation (and often lauded for being so), climate change is distinct from traditional challenges to local governance. Nonetheless, many local governments are directing agencies to utilize existing and traditional local government tools to adapt to climate change. Local governments, for example, are adopting regulatory rules that require consideration of potential climate impacts in public-sector decisions with the goal of improving local adaptive capacity. Throughout these efforts, it is becoming clear that one of the most effective adaptation tools used by local governments is the power to plan communities. Through land use planning, local governments can increase resiliency to major climate shifts and ensure that our communities are equipped with built-in mechanisms to face and mitigate such changes. This essay identifies some of the most innovative planning tools available to local governments that illustrate the potential to plan for community resiliency. The essay begins by identifying some of the severe impacts local governments will experience from climate change. This part recognizes that not all local governments will experience climate change impacts the same, and that climate change adaptation is contextual. Part II provides an overview and inventory of traditional local governance tools, paying particular attention to zoning and nuisance laws. Part III looks more closely at specific structural tools that form the basic foundation for a wide variety of land use planning adaptation approaches and goals. The final part expands on the structural tools and explores specific mechanisms that can help local governments achieve adaptation goals and avoid catastrophic unpreparedness through proper land use planning in the climate change arena.
This piece, by two productive scholars who are also friends of this blog (Jonathan served as a guest blogger as well), should serve as a terrific introduction to the intersection of land use and climate change. The volume looks like good reading for students, scholars, and practitioners.
Tuesday, October 30, 2012
James S. Burling (Pacific Legal Foundation) has posted The Uses and Abuses of Property Rights in Saving the Environment, 1 Brigham-Kanner Property Rights Conference Journal 373 (2012). The abstract:
While freedom and property may be inseparable, the temptation to sacrifice one or the other to seemingly more critical societal goals is ever present. In the past century, the environmental-related limitations on property have progressed from zoning to advance the social welfare, to utilitarian conservation to preserve the human environment, and more lately to the preservation of the environment for its own sake. With each step, property rights have been impacted further. From the imposition of zoning, to regulatory restrictions on the use of property, and to the mechanism of conservation easements, the control of property by the owners of property has diminished. If freedom and property are truly interrelated, there may be troubling implications on the future of freedom.
Tuesday, October 16, 2012
Keith Hirokawa (Albany) has posted From Euclid to the Development of Federal Environmental Law: The U.S. District Court for the Northern District of Ohio and the Regulation of Physical Space, forthcoming in Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio, Paul Finkelman and Roberta Alexander, eds., (2012, Ohio University Press). The abstract:
In 1969, the Cuyahoga River burned. Although it was not the first time that the River was in need of assistance, it was the 1969 fire that helped to compel a radical transformation in the way that we interact with the environment. The U.S. District Court for the Northern District of Ohio was not called upon to adjudicate the liabilities resulting from this pivotal event. But in the years preceding the Cuyahoga fire, the district court was asked to navigate conflicting jurisprudential approaches to the use of land, air, and water. This chapter explores a handful of these cases in order to illustrate the nation's struggle over suspicious conceptions of economic advantage and fairness, flexible distinctions of private and public property, and evolving ideas of nature and health. The chapter begins with the 1924 decision in Ambler Realty Corporation v. Village of Euclid, which remains the most famous challenge to the constitutionality of zoning regulations. It then turns to the 1930 decision in Swetland v. Curtiss Airports Corporation, where the district court addressed the inevitable limitations in property rights above land following the advancement of powered human flight. Finally, it considers an opinion released on the eve of the Cuyahoga River fire, when the court was asked to choose between saving a town and protecting railroad operations in Biechelle v. Norfolk Western Railway Company. Although the district court's decisions in these controversies do not bear the indelible character that we often attribute to law, the federal district courts for the Northern District of Ohio contributed to a legal framework in which the fire could occur and, perhaps more significantly, in which the fire could be perceived as an important event.
It's true that Northern Ohio has been at the forefront of the development of modern land use law! Land use and legal history are more connected than might be apparent. The entire volume looks worth reading.