Land Use Prof Blog

New report on west coast sea-level rise

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

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

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

. . .  

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

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

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

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

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

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

You can view a video produced by the Council below.

 Stephen R. Miller

Craig on Oceans and Place-Based Management

The ever prolific Robin Kundis Craig has a new book out:

Comparative Ocean Governance Place-Based Protections in an Era of Climate Change

Comparative Ocean Governance examines the world’s attempts to improve ocean governance through place-based management – marine protected areas, ocean zoning, marine spatial planning – and evaluates this growing trend in light of the advent of climate change and its impacts on the seas.This monograph opens with an explanation of the economics of the oceans and their value to the global environment and the earth’s population, the long-term stressors that have impacted oceans, and the new threats to ocean sustainability that climate change poses. It then examines the international framework for ocean management and coastal nations’ increasing adoption of place-based governance regimes. The final section explores how these place-based management regimes intersect with climate change adaptation efforts, either accidentally or intentionally. It then offers suggestions for making place-based marine management even more flexible and responsive for the future. Environmental law scholars, legislators and policymakers, marine scientists, and all those concerned for the welfare of the world’s oceans will find this book of great value.

 

Jessie Owley

Works in Progress Workshops

I have been a bit quiet on the blog these past few days because I have been busy attending some amazing events. I already told you all about Widener's Constitutional Environmental Rights Workshop that I found inspiring for kick starting some long-planned work on the Public Trust Doctrine, but I also want to take a moment to praise a new Junior Environmental Law Scholar Works-in-Progress Workshop.

Amanda Leiter of American University's Washington College of Law organized an excellent weekend. Five of us submitted works in progress. We all read each other's work closely and a couple of others joined in to provide comments. We spent 60-90 minutes on each person, with indepth discussions. It was amazingly helpful. We ended on Saturday with a field trip to Kenilworth Park and Aquatic Gardens, a truly hidden jem on the Anacostia River. Events like this are remarkably productive and fun. So who out there wants to coordinate the first Land Use Works-in-Progress event? (please invite me)

Jessie Owley

Craig on the Clean Water Act, Climate Change, and Energy Production

Robin Kundis Craig (Utah) has posted The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses,' forthcoming in the George Washington Journal of Energy & Environmental Law.  The abstract:

Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.

After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.

Matt Festa

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

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

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

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

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

Matt Festa

Mulvaney's Hectic Week in Takings

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

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

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

Matt Festa

Hail and Farewell: Introducing Jerrold Long

Time for another new guest blogger!  First, let me give a sincere, belated thanks to Susan Kraham who had some really interesting posts last month here at the Land Use Prof Blog.

I also want to extend a warm welcome Professor Jerrold A. Long for the upcoming month.  Prof. Long is on the faculty of the University of Idaho College of Law, where he teaches courses in Environmental Law, Land Use, and Property, and is also affilated with the water resources and bioregional planning programs.  He has a JD from Colorado and a PhD from Wisconsin.  From his faculty bio page:

Jerrold A. Long returned to Idaho to join the faculty at the College of Law in 2007. He teaches land-use law, environmental law, property, and subjects relating to the interdisciplinary “Water of the West” program at the University of Idaho. Professor Long is also an Affiliate Professor in the University’s Water Resources and Bioregional Planning programs.

Professor Long grew up in Rexburg, Idaho. He attended Utah State University where he was a National Merit Scholar and graduated magna cum laude in 1997 with a B.S. in Biology. Professor Long received his J.D. degree from the University of Colorado School of Law in 2000. He was president of his first-year class and associate editor of the Colorado Journal of International Environmental Law & Policy. While in law school, Professor Long served as an intern for Earthjustice Legal Defense Fund in Honolulu, Hawai`i, and worked for the U.S. Department of Justice, General Litigation Section, Environmental & Natural Resources Division. After law school, Professor Long joined the Cheyenne office of the western regional law firm Holland & Hart LLP. At Holland & Hart, Professor Long’s practice focused on environmental compliance and litigation before the U.S. Department of Interior Board of Land Appeals. Most recently, Professor Long attended the University of Wisconsin-Madison, where he was an instructor, Distinguished Graduate Fellow, and earned a Doctorate degree from the interdisciplinary Gaylord Nelson Institute for Environmental Studies. Professor Long’s dissertation – New West or Same West?: Evolving land-use institutions in the American West – explored how local land-use regimes respond to social and cultural change.

Professor Long lives in Moscow with his wife Jessica and sons Kieran and Kelton. He is an avid cyclist and wanderer.

We've featured his recent scholarship a couple of times this year, including his forthcoming articles Overcoming Neoliberal Hegemony in Community Development: Law, Planning, and Selected Lamarckism, and Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice.  We're very pleased he can join us for the month!

Matt Festa

Saxer on Managing Water Rights Using Fishing Rights

Shelley Ross Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model, forthcoming in Marquette Law Review Vol. 95 (2011).  The abstract:

This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.

Matt Festa

Mulvaney's take on PPL Montana

Prof. Tim Mulvaney has a thoughtful and original analysis of this week's Supreme Court decision in PPL Montana v. Montana, over at the Environmental Law Prof Blog.  From Tim's Post:

Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.

So the Court neglected to use the opportunity to expand on the judicial takings theory espoused in Stop the Beach, and seems to potentially add confusion to the question of federal judicial deference to state-law interpretations of property rights.  I'll add one other preliminary observation about the opinion: by framing the case around the fact question of whether certain riverbeds were navigable or required portage at the time of statehood, the decision highlights the importance of history and historical interpretation to issues of property law.

Matt Festa

Supreme Court opinion on PPL Montana

The U.S. Supreme Court published its decision in PPL Montana, LLC, v. Montana.  The opinion is here. 

A unanimous Court (Kennedy, J.) reversed the Montana Supreme Court's holding that the State of Montana owns and may charge for the use of the riverbeds at issue. 

Prof. Tim Mulvaney had an insightful analysis of the cert grant for us in a guest-post last year.  We previewed the oral argument here.  SCOTUSblog has, as always, a great roundup of early analysis and links. 

I look forward to hearing more discussion of this important land use case in the near future.

Matt Festa

Benson on the Failure of Law to Protect Public Water Uses

Reed Benson (New Mexico) has posted Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States, Journal of Rural Law and Policy, Vol. 1, No. 1, 2011.  The abstract:

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective.

This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.

Matt Festa

Hanging Fabric on the Water in Colorado?

While environmentalists and avant-garde artists are sometimes assumed to be political bedfellows, it turns out that they are not always cut from the same cloth.  There's a controversy over a famous artist's plans to drape the Arkansas River in copious amounts of textile product.  From the New York Times story Note to Christo: Don't Start Hanging the Fabric Yet:

CAÑON CITY, Colo. — The shouting isn’t over for “Over the River.”

The $50 million project by the artist Christo, who hopes to drape nearly six miles of the Arkansas River here in southern Colorado with suspended bank-to-bank fabric, received approval from federal land managers late last year.

But on Wednesday, a new battlefield emerged in law and local politics: in Denver, opponents filed a federal lawsuit aiming to block construction, which Christo had hoped to begin this summer. The suit argues that land managers violated federal law in approving the plan and gauging its environmental impacts.

And there are some intrepid law students involved in the case. 

The lawsuit, filed on ROAR’s behalf by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs.

An interesting issue, with both sides clothed in good intentions.  Understandably, no one wants to pull the wool over the eyes of any interested party, least of all the wildlife.  Hopefully the project is not a wolf in sheep's clothing.  I hope it doesn't irreparably tear at the fabric of the regional community.

Matt Festa

CFP: Wetlands Policy Conference at Buffalo

Via Jessica Owley, news of an interesting upcoming conference at Buffalo:

Save The Date and Call for Papers
Beyond Jurisdiction:
Wetlands Policy for the Next Generation
26-27 April 2012 at SUNY Buffalo Law School
Buffalo, New York

Beyond Jurisdiction: Wetlands Policy for the Next Generation will bring together academics from law and other fields to join advocates in an exploration of the future of wetlands law and policy from a variety of perspectives (normative, empirical, instrumental, etc.). As is true of many areas of law and social policy, the world of wetlands is inherently political and value-laden—the law is often be a poor means of accomplishing contested social objectives in this area. A debate sparked by U.S. Supreme Court decisions and related federal actions have focused wetlands scholarship and advocacy during the past decade on exploring the parameters of which “waters of the United States” fall under federal jurisdictional. Such concentration has detracted from scholarship and study of many other important issues related to wetlands policy, such as mitigation, the Tulloch rule, nationwide permits, local and state policy developments, international treaty obligations, and other matters. This conference is designed to broaden the focus of exploration and include voices of scholars, activists, scientists, media professionals, and others.

We welcome many voices to this discussion, and invite submissions on any related topic of legal, policy, or additional matters related to wetlands and other jurisdictional waters, including:

· Mitigation
· Tulloch/discharge issues
· Ecosystem services
· State and local governance
· Enforcement
· Permit processes (including nationwide and regional permits)
· Administration of the Clean Water Act
· International and transnational protections

Accepted papers will be published either in a special journal issue or as a chapter in an academic press book. You are invited to submit a paper abstract or presentation proposal of no more than 400 words by Monday, 13 February 2012 to http://baldycenter.info/cgi-bin/applications/rfp.cgi <http://baldycenter.info/cgi-bin/applications/rfp.cgi> .

For more information, contact Kim Diana Connolly at [email protected] or 716-645-2092

Matt Festa

ULI Report on What's Next in Urban Land Use

As we head into the New Year, The Urban Land Institute has also been looking ahead at the future of land use.  ULI recently issued its report What's Next? Real Estate in the New Economy.  From the press release:

A new economy is unfolding over the course of this decade, driven by an extraordinary convergence of demographic, financial, technological and environmental trends. Taken together, these trends will dramatically change urban planning, design and development through 2020, according to a new report from the Urban Land Institute (ULI).

What’s Next? Real Estate in the New Economy outlines how every aspect of living, working and connecting will change in major ways, driven in large part by the values, preferences and work ethic of Generation Y, the largest generation in American history. . . .

Among the report’s findings:

• Technology will reshape work places. Office tenants will decrease space per employee, and new office environments will need to promote interaction and dialogue. Offices will be transforming into meeting places more than work places, with an emphasis on conference rooms, break areas and open configurations. Developers will craft attractive environments to attract young, talented workers.
• Major companies will value space that enables innovation. They will continue to pay more for space in a global gateway served by a major international airport, or in 24-hour urban centers. Hard-to-reach suburban work places will be less in demand.
• The influx of Generation Y, now in their teens through early thirties, will change housing demand. They are comfortable with smaller homes and will happily trade living space for an easier commute and better lifestyle. They will drive up the number of single households and prompt a surge in demand for rentals, causing rents to escalate.
• For most people, finances will still be constrained, leading to more shared housing and multi-generational households. Immigration will support that trend, as many immigrants come from places where it is common for extended families to share housing. This may be the one group that continues to drive demand for large, suburban homes.
• The senior population will grow fastest, but financial constraints could limit demand for adult housing developments. Many will age in place or move in with relatives to conserve money. Developers may want to recast retirement communities into amenity-laden “age friendly” residences. Homes near hospitals and medical offices will be popular, especially if integrated into mixed-use neighborhoods with shops, restaurants and services.
• Energy and infrastructure take on greater importance. Businesses cannot afford to have their network connections down, and more will consider self-generated power or onsite generator capacity. Developers, owners and investors are realizing that the slightly higher costs of energy- and water-saving technologies can pay for themselves quickly, creating more marketable and valuable assets. Ignoring sustainability issues speeds property obsolescence.

You can download the full report here. 

Matt Festa

Upcoming Oral Argument in PPL Montana, Inc. v. Montana

On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana.  Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:

On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.

That's enough to get me excited (seriously).  Go read the rest of Prof. Merrill's informative analysis.  (h/t to our friends at Property Prof Blog for the link).

And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.

Should be very interesting.  Stay tuned.

Matt Festa

Wiseman & Gradijan on Regulation of Shale Gas Development

Hannah Wiseman (Tulsa, Florida State)--who did some terrific guest-blogging with us last year and is part of the crew over at the Environmental Law Prof Blog--and Francis Gradijan (JD, Texas) have posted Regulation of Shale Gas Development, a white paper from the Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law.  The abstract:

Development of oil and gas from shale and tight sands formations in the United States is rapidly expanding, enabled in part by slickwater hydraulic fracturing (also called fracing, fracking, or hydrofracking). This boom in unconventional production has introduced new concerns in communities around the country, raising questions about potential impacts to surface and underground water supplies and air quality, for example. Some policymakers and administrators have recently updated laws to address these concerns, while others have attempted to fit evolving technologies and practices within existing frameworks. This white paper, written for the Energy Institute at the University of Texas, explores the environmental laws and regulations that apply to most stages of the oil or gas development process in shales and tight sands, from conducting seismic testing to constructing a well pad, drilling, completing a hydraulic fracture treatment, and storing and disposing of waste. It briefly describes federal regulations, including recently-announced EPA regulatory efforts, but focuses primarily on the states, comparing regulations in sixteen states that apply to most stages of the well development process. The paper's comparison tables show that state regulations in some areas vary substantially, and the paper attempts to connect the potential risks of oil and gas development from shales and tight sands -- which are addressed in another Energy Institute paper by Professor Ian Duncan -- to the regulation. The paper concludes that states should consider modifying certain regulations to address these risks. Some states do not require specific types of blowout prevention, for example -- offering only a narrative standard -- yet well blowouts are an important concern. Furthermore, states should consider whether federal Department of Transportation regulations addressing the movement of fracturing chemicals adequately protect against spills, and whether state casing and cementing regulations protect well integrity during the drilling and fracturing process and into the future. States also must explore better options for disposing of large quantities of new wastes. Finally, the collection of more and better data, including information from baseline and post-production water testing, is essential. With states at the regulatory helm, comparison of public law strategies to address development risks can produce fruitful cross-jurisdictional lessons.

Timely and important.

Matt Festa

NPR on Zoning out Hydrofracking in Upstate NY

From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits.  The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).  

I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class.  I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes.  Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely.  Enjoy.

Jim K.

Learning from Brooklyn

Before I got co-op approval on my rental in Forest Hills, Queens (where I now live), I spent a week or so sharing apartments and houses in Boro Park and Canarsie.  These are two very different neighborhoods, but from a planning perspective both are of some interest.

I spent the weekend of August 4 sharing an apartment in Boro Park. Boro Park is a heavily Hasidic neighborhood teeming with large families in a zip code with over 75,000 people per square mile, almost three times the NYC average.  Some commentators argue that density and large families are inconsistent- but Boro Park shows otherwise.  In Boro Park, the average age is 29, well below the statewide average (35).

Then I spent a few days at a bed and breakfast in Canarsie, at the eastern edge of Brooklyn (that is, the part furthest from Manhattan).  Canarsie has been hit with many of the major bad urban planning ideas of the 50s and 60s: it includes a couple of housing projects, is not too far from another, and is mostly cut off from the water by an expressway.  And because it is so far from Manhattan, it is not appealing to people looking for short commutes.

Not surprisingly, Canarsie has never been a wealthy neighborhood; at some point in the late 20^th century it transitioned from a Jewish/Italian working class area to a Caribbean-American working class area.  But it is by no means one one of Brooklyn’s worst neighborhoods.  Canarsie's poverty rate is lower than the Brooklyn average, and I was willing to walk through the public housing on the way to the subway; even though I wouldn’t do it at night it doesn’t seem threatening during the day.

To me the interesting questions in Canarsie aren't what went wrong: they are: what went right?  And given the decline of many inner suburbs, does Canarsie have a future?

Michael Lewyn

Craig on Defining Riparian Rights as 'Property' through Takings Litigation

Robin Kundis Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?, forthcoming in Environmental Law. The abstract:

The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.

This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.

Matt Festa

A Major Development in the Southeastern Water Wars

I've only blogged a very little bit about the on-going water conflict between Alabama, Georgia and Florida, but it's a very big deal around here.  A recent 11th Circuit decision is worth noting.  From an Atlanta Journal Constitution story:

The court threw out a 2009 ruling by Senior U.S. District Judge Paul Magnuson, who had found it was illegal for the Corps of Engineers to draw water from Lake Lanier to meet the needs of 3 million metro residents. In its decision Tuesday, the 11th U.S. Circuit Court of Appeals found that one of the purposes of the man-made reservoir about 45 miles upstream of Atlanta was to supply water to the metro region.

Alabama will appeal the ruling to the full Circuit Court.

Magnuson had also set a doomsday clock ticking for Georgia, Alabama and Florida to arrive at a water-sharing agreement. If the states could not reach a settlement by July 2012, Magnuson said, metro Atlanta would only be allowed to take the same amount of water it received in the mid-1970s -- when the population was less than one-third its current size.

That deadline is no longer in effect.

Instead, the 11th U.S. Circuit Court of Appeals set a new deadline. It gave the corps one year to make a final determination over water allocation from Lake Lanier. And the court reminded the corps that the water litigation has already been going on for more than two decades...

Tad Leithead, chairman of the Atlanta Regional Commission, said Magnuson's order posed a serious threat to metro Atlanta's water supply and noted the judge himself said his ruling could lead to a "draconian" result if the July 2012 deadline were not met.

"Had his ruling gone into effect in July 2012, the water supplies that millions of people depend on would have been cut off," Leithead said. "As a result of today’s action by the 11th Circuit, now that won’t happen."

Demming Bass, chief operating officer of the Cobb Chamber of Commerce, said the ruling takes uncertainty off the table in terms of recruiting businesses to locate to metro Atlanta.

"The good news is that because of Judge Magnuson's decision, it forced Georgia and Atlanta to come together and look at worst-case scenarios," Bass said. "It made us pass some great legislation that's going to help us conserve water and get plans in place to look at additional reservoirs, which is something we're going to need anyway."

If you're interested in reading the judge's 95 page ruling, it's available here.

Jamie Baker Roskie