Craig Anthony (Tony) Arnold's blog
U of L land use planning & law students' urban tree plan basis for Louisville's Urban Forest Action PlanPosted June 15th, 2011 by Craig Anthony (...
Law & urban planning students in my Spring 2011 Land Use & Planning Law course prepared an Urban Tree Canopy Plan as a service learning project for the Partnership for a Green City, the Louisville Metro Parks Department, and Community of Trees, an association of government agencies, organizations, and individuals. This plan and its recommendations will be a base from which Community of Trees develops an "Action Plan for Louisville's Urban Forest." A meeting to consider my students' recommendations and to select recommendations for near-future action will be held Wednesday, June 22, 2011, at 10:00 a.m. at 415 W. Muhammad Ali Boulevard, Louisville, KY. The students' Urban Tree Canopy plan can be downloaded at:
This was one of 3 service learning projects prepared in the Spring 2011 offering of the innovative and interdisciplinary Land Use & Planning Law course at the University of Louisville.
I posted the following on the Boehl Distinguished Lecture Series in Land Use Policy at the University of Louisville Brandeis School of Law on the Land Use Professors blog, as an example of the value of having a land-use lecture series.
My first posting on the Land Use Professors' blog is on Judith Welch Wegner's Boehl Distinguished Lecture in Land Use Policy at the University of Louisville Brandeis School of Law this past Thursday, January 27. Professor Wegner spoke on annexation and land use dilemmas. My post about her lecture is here:
I have been asked to join the Land Use Professors' Blog as a contributing editor. I read this excellent blog every day, and I am really honored to be asked to participate. I will post periodically on various land use issues, and while the blog is aimed primarily at land use scholars, it is of interest to anyone who cares about land use issues. The Law School's IT staff are working on a way that my Land Use Prof blog postings can feed directly into this blog. But until we work that out, I will post links to my postings. The introduction is here:
This is the last posting in a 4-part series on ecosystem services. Ecosystem services are the services that nature provides to humans, society, and the economy. Today, I list below 5 articles that address issues in valuing ecosystem services. Please see prior postings for other works on ecosystem services and their relationships to land use, property, and environmental law and policy.
1) Alexander, Anne, List, John A. and Margolis, Michael, A Method for Valuing Global Ecosystem Services. Ecological Economics, Vol. 27, No. 2, 1998. Available at SSRN: http://ssrn.com/abstract=1075862
The goal of this paper is to provide an investigation of several approaches to valuing ecosystem services and to contribute additional techniques which may be used in evaluating `green' GDP accounts. Our estimates focus on the ecosystem as a productive economic input, not a stock which is depreciated or depleted over time; as such, it differs with other concepts more frequently employed in green GDP accounting. Most of our results are derived from the analytical fiction that a single owner of the biosphere establishes a market for all ecological resources. This monopolist then appropriates all rents from the human population. The maximum amount the monopolist charges is first assumed to be world gross product less the global human subsistence level. In addition, we examine the excess rents available in factor markets using the assumption of weak complementarity between factor inputs and ecosystem services. We also provide more conservative estimates of the value of ecosystem services by investigating the sustainable price the monopolist could charge the global population and by exploring the effects of compensating wage differentials and a non-monopolist owner of the ecosystem.
2) Winkler, Ralph, Valuation of Ecosystem Goods and Services Part 1: An Integrated Dynamic Approach. Ecological Economics, Vol. 59, No. 1, pp. 82-93, 2006. Available at SSRN: http://ssrn.com/abstract=978376
This is the first part of a two-part paper which offers a new approach to the valuation of ecosystem goods and services. The existing literature on environmental valuation is based on two distinct foundations. The ecological valuation methods derive values by a cost-of production approach. Their common characteristic is the neglect of consumer preferences. The economic valuation methods focus on the exchange value of ecosystem services. Their common characteristic is that they are finally based on consumer preferences, and do not adequately take account of the complex internal structure of ecosystems. As the existing methods for the valuation of ecosystem services emphasize either the economic system or the ecosystem, the main objective of part 1 is to provide the conceptual foundations for a new method of valuation of ecosystem services, which deals simultaneously with the ecosystem, the economic system and society in a balanced way. Within a simple pre-industrial model it is shown how the interdependencies between the three subsystems influence values, and how values change over time.
3) Boyd, James William and Banzhaf , H. Spencer, What are Ecosystem Services? The Need for Standardized Environmental Accounting Units (January 2006). Resources for the Future, Discussion Paper No. RFF DP 06-02. Available at SSRN: http://ssrn.com/abstract=892425
This paper advocates consistently defined units of account to measure the contributions of nature to human welfare. We argue that such units have to date not been defined by environmental accounting advocates and that the term "ecosystem services" is too ad hoc to be of practical use in welfare accounting. We propose a definition, rooted in economic principles, of ecosystem service units. A goal of these units is comparability with the definition of conventional goods and services found in GDP and the other national accounts. We illustrate our definition of ecological units of account with concrete examples. We also argue that these same units of account provide an architecture for environmental performance measurement by governments, conservancies, and environmental markets.
4) Boyd, James William, The Nonmarket Benefits of Nature: What Should be Counted in Green GDP?(May 2006). Resources for the Future Discussion Paper No. 06-24. Available at SSRN: http://ssrn.com/abstract=900581
Green gross domestic product (green GDP) is meant to account for nature's value on an equal footing with the market economy. Several problems bedevil green GDP, however. One is that nature does not come prepackaged in units like cars, houses, and bread. Even worse, green GDP requires measurement of the benefits arising from public goods provided by nature for which there are no market indicators of value. So what should green GDP count? That is the subject of this paper. Ecological and economic theory are used to describe what should be counted - and what should not - if green GDP is to account for the nonmarket benefits of nature.
5) Heal, Geoffrey M., Valuing Ecosystem Services (January 1999). Paine Webber Working Paper No. 98-12. Available at SSRN: http://ssrn.com/abstract=279191
The value of the services provided to human societies by natural ecosystems and biogeochemical cycles has recently been the topic of discussion and research. Here I review some of the basic economic principles necessary for understanding some of the questions that arise in this area. I argue that even with the best possible data and scientific understanding, the sense in which economists can value nature's services is limited. I also argue that valuing these services is much less important than providing incentives for their conservation, and that valuation and providing incentives for conservation are quite different. Valuation is neither necessary nor sufficient for conservation, whereas providing the right incentives is.
This is the 3rd posting in a 4-part series on ecosystem services. Ecosystem services are the services that nature provides to humans, society, and the economy. Today, I list below 3 articles that address various aspects of the relationship between ecosystem services and property law, including regulatory takings, nuisance, and the public trust doctrine. Please see previous postings for an overview of ecosystem services and the relationship between land use and ecosystem services. A future posting will address issues in valuing ecosystem services.
1) Ruhl, J.B., The 'Background Principles' of Natural Capital and Ecosystem Services - Did Lucas Open Pandora's Box?(September 2006).
In his majority opinion in Lucas v. South Carolina Coastal Council, Justice Scalia established the relevant background principles of state property law as the reference point for testing whether public regulation or private property goes so far as to constitute a categorical taking of property. He also confirmed, however, that those background principles evolve with new knowledge and changed circumstances.
Over the past decade, the discipline of ecological economics has produced a burgeoning body of research illuminating the significant economic value that functioning ecosystems, acting as natural capital, supply humans in the form of direct and indirect ecosystem services, such as the capacity of coastal wetlands to mitigate storm surges. This article explores how these findings fit into the Lucas calculus.
Based on work by Professor John Sprankling, the Article concludes that the background principles of property law have resisted integrating concepts like natural capital and ecosystem services into property doctrine. On the other hand, based on work by Professor Michael Blumm, the Article confirms that the amassing body of research about natural capital and ecosystem service values is precisely the kind of new knowledge that ought to transform those background principles. The Article concludes by discussing two recent cases in which courts have done exactly that - to integrate knowledge about natural capital and ecosystem service values in order to apply common law property doctrine in ways contrary to the established background principles. If this trend spreads, Lucas will indeed have opened a Pandora's box, with impacts on the common law it is difficult to imagine the Justice Scalia and majority had in mind.
2) Ruhl, J.B., Making Nuisance Ecological(September 2006).
Common law nuisance doctrine has the reputation of having provided much of the strength and content of environmental law prior to the rise of federal statutory regimes in the 1970s, but since then has taken a back seat to regulatory law with respect to the environment. In particular, whereas nuisance doctrine has been criticized - many say too harshly - as being inadequate for dealing with the demands of modern pollution control, it has never been considered as having much at all to do with management of ecological concerns. Yet nuisance law evolves with changed circumstances and new knowledge. This article examines one such evolutionary force - new knowledge of the economic value of natural capital, such as coastal wetlands, and the ecosystem services that flow from it, such as mitigation of storm surges.
Part I of the Article outlines the prima facie case of an ecosystem services nuisance, showing that the conventional doctrine of private and public nuisance is aptly suited to engaging situations when one landowner manages his or her property so as to deprive another of economically valuable ecosystem services. Temporal, spatial, and cumulative effects may complicate such cases, but do not shift this form of injury outside the scope of nuisance. Part II examines the advantages and disadvantages of relying on nuisance law in this context. The primary advantages are the local focus of nuisance law and its information-producing effects, whereas the disadvantages normally associated with common law claims are not strongly operative. Part III argues that the ecosystem services nuisance theory of liability should be pursued alongside statutory regimes designed to manage natural capital and ecosystem services, so as to promote legitimacy of the statutory program and to help insulate it from regulatory takings claims. On the other hand, Part III also argues against a more expansive common law theory designed to encompass moral, ethical, and scientific harms to our sense of ecological integrity.
3) Ruhl, J.B. and Salzman, James E., Ecosystem Services and the Public Trust Doctrine: Working Change from Within.
What to do with the public trust doctrine? Environmental law scholars have been asking that question for going on 40 years, ever since Professor Joseph Sax surmised in his famous law journal article on the topic that of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. In this Article we briefly survey reasons why his vision has yet to be fulfilled, and we propose a way the public trust doctrine can be used to achieve a good measure of Sax's vision by working from within the doctrine, not by changing it.
Unlike the outpouring of academic proposals to liberate, expand, and modify the public trust doctrine to fulfill Sax's goals, for purposes of this Article we accept that the doctrine remains bound to its utilitarian origins. Rather than propose expanding the doctrine outside of its traditional boundaries, therefore, we use its core utilitarian purposes as the medium for protecting ecological resources. We employ the concepts of natural capital and ecosystem services to develop the ecological scope of the public trust doctrine from within. Our argument is straightforward: traditional public trust resources often contain natural capital supplying economically valuable ecosystem services to the public; the public's enjoyment of those values is appropriately treated as a use of the trust lands within the meaning of the public trust doctrine; therefore, the restrictions applicable under the public trust doctrine attach to the natural capital found on trust lands. Thus, rather than reshape the public trust doctrine to fit ecological goals, we propose reshaping the way ecological goals are framed to fit the public trust doctrine. This approach both advances Sax's vision and mitigates the concerns other scholars have expressed about stretching the public trust doctrine beyond its traditional scope.
This is the 2nd posting in a 4-part series on ecosystem services. Ecosystem services are the services that nature provides to humans, society, and the economy. Today, I list below 5 articles that address various aspects of the relationship between ecosystem services and land use, ranging from the structural functions and processes of the land use regulatory system, recommendations for organizing land use powers around ecosystem service districts, wetlands and land development, forest watersheds and land use, and the economics of land use with respect to species’ habitat. Please see yesterday’s posting for an overview of ecosystem services and future postings for scholarship on property law and ecosystem services and issues in valuing ecosystem services.
1) Arnold, Craig Anthony (Tony), The Structure of the Land Use Regulatory System in the
The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the
This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the
Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the thinness of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the patchiness of land use regulatory authority in the United States.
This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services, the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.
2) Heal, Geoffrey M., Daily, Gretchen, Ehrlich, Paul, Salzman, James E., Boggs, Carol, Hellman, Jessica, Hughes, Jennifer, Kremen, Claire and Ricketts, Taylor, Protecting Natural Capital through Ecosystem Service Districts. Available at SSRN: http://ssrn.com/abstract=279114
In this article, we focus on the potential of governmental authorities dedicated to management of ecosystem services. We argue that the creation of such Ecosystem Service Districts (ESDs) will improve the efficient provision of services necessary for human welfare. At the moment, when agencies manage for natural resources, they typically do so in a defined geographical area or district. Given the prevalence and importance of districts for soil conservation, resource conservation, flood control, and other local services, we explain how ESDs could provide a coherent and efficient governmental institution for monitoring and investing in natural capital. A focus on ESDs would create a mechanism to help ensure that natural capital is protected and maintained with the same care and concern as that given to built and human capital.
Establishing and managing ESDs will involve an exploration of the underlying ecological processes that provide the services, of the economic significance of the services, and of the legal issues involved in managing natural ecosystems for the good of a local or regional community. Central in all these analyses will be land use decisions. Land use determines which of the initial ecosystems and services are maintained intact. In addition, many of the key trade-offs between the continued functioning of natural ecosystems and the extension of economic activities arise naturally in the context of land-use choices, such as farming versus forestation, development versus conservation, etc.
In examining the geographical, economic, and legal obstacles in designing ESDs, we suggest an integrative framework for managing the patterns of land use in a district that can provide several different ecosystem services, and that also has the potential to support many different types of economic activity, some of which can conflict with the continued integrity of the natural ecosystems. Part I of the article explains the why ecosystem services are under threat and the potential benefits of managing their conservation through ESDs. Part II lays out the basic ecological-economic framework and principles for district design. Part III sets out the key legal issues and Part IV presents a tentative roadmap of how to put theory into practice. The importance of ecosystem services is no longer disputed. How to realize more fully their value, and hence their conservation, however, remains an active research area. ESDs, though fraught with challenges, provide a potentially powerful institutional mechanism to address the relative neglect of ecosystem services in public policy by bringing their crucial importance into focus and aiding in their preservation.
3) Ruhl, J.B. and Salzman, James E., The Effects of Wetland Mitigation Banking on People(January 2006).
In the decade since the Corps of Engineers (Corps) and Environmental Protection Agency (EPA) officially blessed wetland mitigation banking for purposes of satisfying mitigation requirements under Section 404 of the Clean Water Act (CWA), the practice has fueled an ongoing debate about its pros and cons. For the most part, however, the debate has focused on the relative advantages and disadvantages of banking programs in terms of administrative efficiency and ecological impact, with little attention being paid to the effects of wetland mitigation banking on people. This article presents the first comprehensive empirical study of the demographics of wetland mitigation banking, revealing what has long been suspected - that banking facilitates the redistribution of wetland resources from urban to rural areas, taking with them the important ecosystem service values wetlands provide to human communities.
After an overview of the economic service values wetlands provide, the structural biases inherent in the wetland mitigation banking program, and the lack of information about the effects of wetland banking in general, we present the results of an empirical study of 24 wetland mitigation banks in
4) Neuman, Janet C., Thinking Inside the Box: Looking for Ecosystem Services within a Forested Watershed. Journal of Land Use & Environmental Law, Vol. 22, No. 2, 2007. Available at SSRN: http://ssrn.com/abstract=1089536
This paper uses the
5) Pethig, Rudiger and Eichner, Thomas , Economic Land Use, Ecosystem Services and Microfounded Species Dynamics(September 2004). CESifo Working Paper Series No. 1269. Available at SSRN: http://ssrn.com/abstract=601322
In an integrated economy-ecosystem model humans choose their land use and leave the residual land as habitat for three species forming a food chain. The size of habitat determines the diversity and abundance of species. That biodiversity generates, in turn, a flow of ecosystem services with public-good characteristics for human consumption. The ecosystem submodel yields (rather than assumes!) population growth functions with each species' growth depending on the size of habitat. First the relationship between habitat and species growth (sustenance, decline and extinction) is explored. The laissez-faire economy is shown to result in an underprovision of habitat, making the case for land use restrictions for nature protection. The optimal land use policy is characterized with full regard of ecosystem dynamics. Finally, labor-augmenting technical change is introduced to generate ever increasing pressure towards further habitat reductions. In the laissez-faire economy the habitat is consequently squeezed to zero in the long-run so that all species are doomed. Social optimality demands, however, to refrain from using all land for economic purposes despite ever-growing labor productivity.
Today I am starting a 4-part series on ecosystem services. Ecosystem services are the services that nature provides to humans, society, and the economy. Research by scientists, economists, and public policy specialists has demonstrated that ecosystems provide critical and extremely valuable services that not only support life generally but also contribute to the functioning of our society and economy. However, market, public policies, and legal doctrines tend to under-value these ecosystem services.
The concept of ecosystem services raises a variety of interesting questions: Should we be attaching monetary values to nature and treating nature’s functions and processes as market commodities? Does the concept of ecosystem services allow for eco-centric (i.e., non-human) values and non-economic benefits to humans? Is it even possible to assign economic values to ecosystem services in any meaningful or useful way? How can legal, political, economic, and social institutions incorporate ecosystem services values into their decision making processes?
Nonetheless, a key concept raised by this emerging literature is that land development may be producing short-term economic returns (profits, land value, etc.) at the expense of long-term natural capital needed to sustain nature, society, and the economy in the future.
Today, I list below 3 articles that will introduce readers to the concept of ecosystem services and its relevance to law and public policy. Future installments will address land use and ecosystem services, property law and ecosystem services, and issues in valuing ecosystem services.
1) Ruhl, J.B. and Salzman, James E., The Law and Policy Beginnings of Ecosystem Services.
Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at
The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the law of specific natural resources, and the other set focused on different legal institutions as agents of integration of ecosystem services into law and policy. The resource presentations covered water and watershed resources, agricultural and rangeland resources, and coastal resources, while the institutional presentations addressed land use regulation, common law remedies, public law enforcement regimes, and second generation approaches in energy policy. This article provided the historical and conceptual anchor for the symposium.
2) Salzman, James E., A Field of Green? The Past and Future of Ecosystem Services. Duke Science, Technology & Innovation Paper No. 18, Journal of Land Use & Environmental Law, Vol. 21, p. 133, 2006. Available at SSRN: http://ssrn.com/abstract=991668
In recent years, interest in ecosystem services has exploded. From cover stories in the New York Times and The Economist, websites connecting buyers and sellers of ecosystem services, and the comprehensive UN-sponsored Millennium Assessment - a report on the state of the world's ecosystem services - to a statement by the U.S. Secretary of Agriculture calling for a future where credits for clean water, greenhouse gases, or wetlands can be traded as easily as corn or soybeans, the ecosystem services approach has firmly arrived in the environmental policy world. But what does this approach entail and where is it going?
This short article reviews the state of the field. Although critical to our well-being, ecosystem services are neither explicitly protected by the law nor traded in markets. The first section explains the three major obstacles to protection and commodification of ecosystem services. The second section proposes payments for services as an alternative policy approach to the more traditional instruments of prescriptive regulation and financial penalties. The third section briefly describes examples of service payments around the globe, demonstrating the wide range of approaches. The fourth section considers the difficult issues in structuring payments for services, including the challenges of moral hazard, the polluter pays principle, and norm shaping. The final section describes three exciting recent developments – the growing interest of conservation and land trust organizations to integrate ecosystem services into their central missions, the launching of an ecosystem marketplace on the web, and negotiations to incorporate ecosystem service markets explicitly into the 2007 Farm Bill. This article was voted by law professors for inclusion in the 2006 issue of the Land Use and Environmental Law Review.
3) Frischmann , Brett M., Environmental Infrastructure. Ecology Law Quarterly, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1123732
This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management.
Carol Brown, a law professor at the University of North Carolina Law School, is a young scholar of emerging importance in property law and the environment. One of the themes of this blog is the reconceptualization of property rights and interests to address ecological sustainability and the environment’s carrying capacity. Professor Brown has written several valuable articles in this area. I have provided links and abstracts for two of these articles, below:
1) Carol Necole Brown, A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements. U of Alabama Public Law Research Paper No. 08-07, Available at SSRN: http://ssrn.com/abstract=881868
For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs. My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act ("UCEA") and codified by many states in their state statutes.
It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented.
My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.
American water law reflects the diverse geography and population patterns of our country. The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources. This Article's thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma. I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare, even minimally.
In the Article, I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine. I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine. Additionally, I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept. I use the recent United States Supreme Court case Kelo v. Town of New London to illustrate the similarities between the Court's "traditionally broad understanding of public purpose" in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine. My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this country's approach to water use and conservation in the arid west.
Patty Salkin, a well known national expert in land use law, continues to come out with new publications on smart growth and land use. Local communities everywhere are seeking new ideas about how to address climate change, natural disasters, barriers to healthy lifestyles, and the environments of low-income and minority communities (environmental justice).
The following are 4 valuable publications that address various aspects of the intersection between smart growth and land use planning and regulation. Incidentally, Salkin presented the paper on land use law and active living at the Children, Nature, and Land Use program at the University of Louisville’s first Symposium on Law, Ethics, and the Life Sciences in Fall 2007. The program on children and the environment was sponsored by the University of Louisville’s Center for Land Use and Environmental Responsibility.
1) Patricia Salkin, Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations (July 17, 2008). Available at SSRN: http://ssrn.com/abstract=1162499
Global warming, climate change, reducing greenhouse gas emissions, reducing the carbon footprint, and going green are just some of the buzz words in the news over the last two years that have captured the attention of lawmakers and policymakers at all levels of government. In Congress, lawmakers have proposed, among other things, mandating standards to reduce greenhouse gas emissions, and governors across the country have announced myriad programs designed to encourage the use by governments of green products, the construction of green buildings, and the offering of a combination of tax incentives and grants for private developers and other members of the public who develop and install various renewable energy products.
However, it is initiatives at the local government level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming. This is because local governments are the critical decision-makers in how communities use and conserve key resources. Municipalities serious about curbing emissions as well as energy and water usage within their communities, to both combat global warming and to preserve the immediate environment, have found many successful ways to implement plans that reduce the strain on environmental resources. Local governments have begun to incorporate principles and goals of sustainability and carbon reduction into comprehensive land use plans. This paper begins to examine the elements of a "green audit" for local comprehensive plans and land use regulations.
2) Patricia Salkin, Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation (July, 08 2008). Environmental Law Report, Vol. 38, p. 10158, March 2008. Available at SSRN: http://ssrn.com/abstract=1157153
The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. This article looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. The paper cites DMA provisions that offer financial incentives to states that work with local governments to plan for growth and disasters; and sets forth case studies to illustrate how states can create vertical links among federal, state, and local entities to coordinate disaster mitigation strategies.
3) Patricia Salkin and Amy Lavine, Land Use Law and Active Living: Opportunities for States to Assume a Leadership Role in Promoting and Incentivizing Local Options (October 26, 2007). Rutgers Journal of Law and Urban, Policy Vol. 5, 2008. Available at SSRN: http://ssrn.com/abstract=1025722
Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local governments to enact and implement laws and ordinances designed to promote active living. Land use policies, transportation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights exisiting examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.
4) Patricia Salkin, Intersection Between Environmental Justice and Land Use Planning. Planning and Environmental Law, May 2006. Available at SSRN: http://ssrn.com/abstract=1029861
Environmental justice goes to the core of traditional land use decisions: choosing sites for locally unwanted land uses (geographic equity); the process for deciding where to site these unwanted land uses, including the location and timing of public hearings (procedural equity); and sociological factors, including which groups hold the political power inherent in land use decisions (social equity). This articles discusses the various tools in land use planning and zoning that can used to promote and implement environmental justice principles.