Craig Anthony (Tony) Arnold's blog
Land use affects water quality, water use, and the integrity and health of watersheds. The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.
This blog posting is the sixth in a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I am concluding this series with 3 excellent and thought-provoking articles about water rights, which have important implications for land development and growth:
1) Christine A. Klein, "On Integrity: Some Considerations for Water Law" . Alabama Law Review, Vol. 56, p. 1009, 2005 Available at SSRN: http://ssrn.com/abstract=805964
In 2003, the federal government issued a stark warning that parts of the nation are running out of water, due primarily to explosive population growth in arid areas. The report predicted a substantial likelihood that water supply crises would occur within the next twenty years in Denver, Los Angeles, Phoenix, Salt Lake, San Diego, and numerous other areas.
But, the problem is not confined to the west. Sprawling urban growth and significant pollution in some eastern areas are causing a simultaneous increase in demand and reduction in supply. The traditional response to shortage has been a quest for more water at all costs, leading to bitter and even violent conflict among competing water users. Even as the nation experiences this impending water crisis, we are also experiencing a crisis of a different kind. The corporate scandals and multi-billion dollar accounting frauds exposed in the 1990s have caused investors to lose faith in the integrity of financial institutions. Might there be a relationship between these two types of crisis, linked by the concept of integrity?
This article offers the notion of hydrologic integrity - basic principles of science, ecology, and social equity - as a touchstone for resolving intractable problems of water policy. Three case studies are presented, including the restoration of the Everglades wetland ecosystem (as considered by the United States Supreme Court in 2004 in South Florida Water Management District v. Miccosukee Tribe of Indians); the evolving fight over transbasin diversions from northern to southern Florida; and the stalled negotiations over the Apalachicola-Chattahoochee-Flint River Basin, which is likely to be presented to the Supreme Court for resolution. Applying principles of aquatic integrity to these case studies, this article suggests a new way for thinking about old water problems.
2) Sandra B. Zellmer and Jessica Harder, "Unbundling Property in Water" . Alabama Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=1010617
The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies.
The quest for sustainable management has stimulated a movement championing greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International Monetary Fund have encouraged nations in the developing world to conform to a market paradigm by privatizing their water supplies. Affected communities are often less than enthusiastic about privatization. Throughout the world, attempts to privatize water resources have triggered a morality play of rights versus markets, human need versus corporate greed.
The controversy is not limited to developing countries. One of the most divisive issues in contemporary natural resources law in the United States is whether interests in water are property. Absent legally recognized property rights, water markets are unlikely to thrive. According to the Restatement of Property, the term property describes legal relations between persons with respect to a thing. Of course, not all economic relationships give rise to property rights. Judicial treatment of water is all over the map. The Court of Federal Claims awarded California irrigators millions of dollars as compensation for a taking of their property rights when flows were curtailed to protect endangered salmon, but a different panel of the very same court subsequently took that opinion to task for failing to consider whether interests in water are property under the Fifth Amendment. Likewise, other federal and state courts have reached contradictory results.
To unbundle the concept of property in water, this article critiques the conflicting approaches to water rights. It uses a web of interests as a strong yet flexible metaphor for property, complemented by a patterning definition representing elemental strands of the web. If the interest in question is not an irrevocable interest in the exclusive possession and use of a discrete, marketable asset, it is not takings property under the Fifth Amendment. Viewed through this lens, it becomes clear that interests in water in most jurisdictions are not takings property, although they may be a limited form of property for purposes of water transfers and due process or common law claims.
3) Robin Kundis Craig, "A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries" . Penn State Environmental Law Review, Vol. 16, No. 1, pp. 1-113, Fall 2007 Available at SSRN: http://ssrn.com/abstract=1008161
Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines - emphasis on the plural - can reveal.
This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states - all of the states east of the Mississippi River, plus the five states - Minnesota, Iowa, Missouri, Arkansas, and Louisiana - bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.
These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude - and for practical purposes always have intruded - upon privately owned riparian and littoral property.
Land use affects water quality, water use, and the integrity and health of watersheds. The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved. This blog posting is the fifth in a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I refer to an excellent article by the University of Utah’s Lincoln Davies on “assured supply” laws that condition approvals of land use projects on developers showing that they have reliable supplies of water to support the new development. Professor Davies explores the ways by which these laws can discourage or encourage sprawl, depending on the circumstances and how the laws are designed.
Lincoln Davies, "Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws," 34 Ecology Law Quarterly 1217 (2007): Available at SSRN: http://ssrn.com/abstract=1132512
States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental planning mechanisms.
Land use affects water quality, water use, and the integrity and health of watersheds. The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved. This blog posting is the fourth in a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I provide links and abstracts of articles that explore ways that federal law has been misused or unused to regulate land use and development as they relate to water resources.
1) Christine A. Klein and Sandra B. Zellmer, "Mississippi River Stories: Lessons from a Century of Unnatural Disasters" (August 20, 2007). Available at SSRN: http://ssrn.com/abstract=1010611
In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.
Setting forth what we call the theory of “double takes,” this article argues that property owners in flood-prone areas “take” taxpayer dollars through two sometimes-overlapping mechanisms. First, a package of subsidies - including flood control structures, federal flood insurance, and after-the-fact disaster relief - enables and even encourages construction in high-risk areas. Second, landowners denied permits to develop floodplain and coastal property can “take” federal dollars in the form of compensation awarded under the Fifth Amendment. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a dangerous misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.
2) Jess R. Phelps, "A Vision of the New Deal Unfulfilled? Soil and Water Conservation Districts and Land Use Regulation," 11 Drake Journal of Agricultural Law 353 (2006). Available at SSRN: http://ssrn.com/abstract=979108
This Note evaluates the role of soil and water conservation districts as a part of the environmental component of New Deal era policymaking. This Note is specifically focused on exploring the nature of the regulatory authority that was granted to the conservation districts at the time most states passed the district enabling legislation and the role this authority play in addressing conservation problems on the local level. States granted districts two types of authority: projects and regulatory. Projects power - or the ability of the districts to promote conservation through demonstration stations, and educational efforts has been the dominant activity of the districts throughout their history. On the other hand, regulatory authority - the ability to pass local regulations governing land use - has rarely been utilized. This Note addresses the reasons this authority was not fully utilized and the forces that opposed the utilization of this district regulatory authority. In conclusion, this Note follows a modern use of district regulatory authority in Montana's Rosebud Conservation District and provides a framework for expanded use of regulatory authority in addressing local environmental problems.
Louisville Courier-Journal environmental reporter Jim Bruggers is a first-rate environmental reporter. Moreover, he has a most informative and useful blog, which is http://www.courier-journal.com/blogs/bruggers/blog.html. It’s a thoughtful source of environmental news not only in Louisville but also nationally and globally.
Here are some more details on Jim and his blogging activities, fromhis blog site:
“As far as he knows, Courier-Journal reporter James Bruggers is about the only journalist covering the environment full time for a Kentucky newspaper, television station or radio station. A native of Michigan, he lived in the West for more than two decades before coming to the C-J in 2000. He studied journalism, forestry and environmental studies at the University of Montana.
In this blog, Bruggers shares news items and observations from inside the environment beat locally, regionally and globally. He calls your attention to new studies, reports and events. And he goes behind the headlines to answer questions and explain some of his own coverage in the newspaper.”
Land use affects water quality, water use, and the integrity and health of watersheds. The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved. This blog posting is the third in a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I provide a link and the abstract to an article that addresses an often-overlooked topic: the importance of land trusts and government agencies acquiring water rights to accompany the conservation easements or conservation lands that they acquire.
The article is: Mary Ann King and Sally K. Fairfax, "Beyond Bucks and Acres: Land Acquisition and Water," 83 Texas Law Review 1941 (June 2005). Available at SSRN: http://ssrn.com/abstract=874789
This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions' tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.
In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the riparian mindset. We also note some basic constraints on just buying it associated with these historic acquisitions of land-in-fee.
We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.
In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements. We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government's enormous advantages in litigation are taken into account.
Part V offers some starting points for future discussion. We look at water trusts' experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law.
We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.
Land use affects water quality, water use, and the integrity and health of watersheds. The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved. This blog posting is the second in a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I provide links and abstracts to 2 similar articles manifesting the research and ideas of Professor William Andreen, University of Alabama Law School, on the subject:
1) William L. Andreen, "The Evolving Contours of Water Law in the United States: Bridging the Gap between Water Rights, Land Use and the Protection of the Aquatic Environment," Environmental Planning and Law Journal, Vol. 23, 2006. Available at SSRN: http://ssrn.com/abstract=889744
Although Australia and the United States share a common law heritage, water law has developed in significantly different patterns in the two nations. Much of the credit for Australia's different course can be ascribed to Alfred Deakin, who after taking a study tour of the American West in 1885, wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were elevated over those of the individual.
Unfortunately, both countries have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. Both countries, therefore, face the difficult challenge of trying at a late date to bring together two separate, but inextricably connected, disciplines, one focusing on water use and the other on water quality. The challenge is daunting, especially in light of both existing uses of water "giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States" and anticipated growth in demand.
Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the notable exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.
After exploring the three separate regimes governing water use, water quality and land use, the article discusses and evaluates a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive way. Perhaps the most important aspect of this analysis lies in its attempt to connect, in terms of law and institutions, the natural and symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem, one linking all land and aquatic features in a particular watershed.
2) William L. Andreen, "Developing a More Holistic Approach to Water Management in the United States," Environmental Law Reporter, Vol. 36, No. 10277, 2006. Available at SSRN: http://ssrn.com/abstract=894959
Americans have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. The United States, therefore, faces the difficult challenge of trying at a late date to bring together three separate, but inextricably connected, disciplines, one focusing on water use, one on water quality, and yet another focusing on development and land use. The challenge is daunting, especially in light of both existing water uses and anticipated growth in the demand for water.
Complicating the situation is a fragmented approach to law and regulation. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.After exploring the regimes that govern water use, water quality and land use, the article discusses a number of approaches for trying to integrate these regulatory schemes into a mechanism that can better protect the integrity of our aquatic systems, while also meeting most human needs. Perhaps the most important aspect of the analysis lies in its attempt to connect, in terms of law and institutions, the symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river and other freshwater systems as part of a larger interdependent ecosystem linking all land and aquatic features in a particular watershed.
Land use affects water quality, water use, and the integrity and health of watersheds. The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved. This blog posting begins a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I provide links and abstracts to 3 articles that I have written on the subject:
1) Craig Anthony (Tony) Arnold, "Clean-Water Land Use: Connecting Scale and Function," Pace Environmental Law Review, Vol. 23, No. 2, p. 291, 2006. Available at SSRN: http://ssrn.com/abstract=1024265
Land use and land development adversely affect water quality in many substantial ways. The current land use regulatory system is blamed for its failure to plan and regulate to protect water quality and watershed health, and a frequent suggestion is to move authority for land use planning and regulation to larger ecologically-based scales, such as watersheds, or to regional, state, or national agencies that can act on a watershed scale.
Despite the allure of these proposals, careful study of the scales and functions of watersheds and the scales and functions of land use presents a nuanced picture of both watershed and land use dynamics, suggesting that watershed institutions might be best suited for watershed planning, technical assistance, facilitation of intergovernmental cooperation, and provision of resources and information, while local governments will continue to be best suited to engage in generalized planning, zoning, permit decisions, and other traditional regulatory functions.
This article discusses the impact of land use on water quality, and then explores the scale and function of both watersheds and land use. It offers lessons about the geographic, functional, problem, and temporal scales of watersheds, and the functional, political, resource, and temporal scales of land use, as well as lessons about the legal scale of freedom and boundaries. Attempting to connect both the scale and function of watershed with both the scale and function of land use, the article recommends a hybrid regional-local model of watershed-based planning and regulation of land use.
2) Craig Anthony (Tony) Arnold, "Is Wet Growth Smarter than Smart Growth?: The Fragmentation and Integration of Land Use and Water." Environmental Law Reporter, Vol. 35, No. 3, p. 10152, 2005. Available at SSRN: http://ssrn.com/abstract=1040821
The authority and regimes for controlling land use, water quality, and water use are highly fragmented, both internally and from one another. However, a growing body of evidence demonstrates that this fragmentation comes at great cost to natural and human environments, with increasing impacts of land use practices, water quality conditions, and water uses on one another. This article introduces a concept of wet growth that attempts to achieve some level of integration among these three inter-related aspects of law and public policy.
The Wet Growth concept is distinguished from the popular, yet vague, concepts of Smart Growth, which has failed to give sufficient attention to the water-related impacts of land development and use. The article describes examples of emerging efforts to achieve integration of land use and water regulatory policies. It summarizes the ideas and research of several leading scholars in a book on Wet Growth. The article makes a case for policy diversity in the integration of land and water practices, rejecting the desirability of any single model. Finally, it analyzes the role that local land use planning and regulation can play in achieving aquatically and ecologically sustainable land use practices.
3) Craig Anthony (Tony) Arnold, "For the Sake of Water: Land Conservation and Watershed Protection," Sustain: A Journal of Environmental and Sustainability Vol. 14, No. 16, 2006 Available at SSRN: http://ssrn.com/abstract=1089026
Land conservation serves a critical function of protecting watershed health and integrity, which are necessary for healthy natural environments, human life, economic activity, and society. This article describes the various impacts of land use on water quality and watersheds.
Having documented land development's growing degradation of watershed functions, the article examines four methods of protecting water quality through land conservation. These four methods are land use planning and regulation, public land management, private land conservation, and changes in land-use behaviors and values. Analysis of legal tools and limits is supported by a case study of the Anacostia River watershed, one of the most degraded watersheds in the U.S. yet recently the object of diverse and substantial efforts to restore its waterways and manage land development practices.
The article concludes that no single method of land conservation is adequate to protect watersheds. Instead, a policy of policy diversity -- a polycentric model of land conservation and watershed protection -- will maximize changes towards more environmentally responsible land use practices. While the article is likely to be of interest to specialists in land use, property, environmental, and natural resources law and public policy, it can serve as a useful means of introducing students, policy makers, or members of the public to the varieties of land conservation methods or to the relationship between land use and water quality.
The following are a few other useful blogs that address issues at the intersection of land use and the environment:
Law of the Land (Professor Patty Salkin’s blog from Albany Law School’s Government Law Center), http://lawoftheland.wordpress.com/
Planetizen (The Planning and Development Network), http://planetizen.com/interchange
Environmental Justice Blog, http://environmentaljusticeblog.blogspot.com/
Center for Neighborhood Technology: Sustainable Communities – Attainable Results (a blog of the Center for Neighborhood Technology), http://weblog.cnt.org/
Land Use Prof Blog (run by Professor Paul Boudreaux of Stetson University College of Law), http://lawprofessors.typepad.com/land_use/
Green Building Law blog (run by Shari Shapiro, a Philadelphia attorney and LEED Accredited Professional), http://greenlaw.blogspot.com/
Smart Growth Around America (Smart Growth America blog), http://blog.smartgrowthamerica.org/?p=104
American Rivers blog (run by the environmental group American Rivers), http://blog.americanrivers.org/wordpress/index.php
In the next couple of weeks, I will be giving two presentations at the University of Florida’s Levin College of Law, which has an excellent environmental and land use law program (see http://www.law.ufl.edu/elulp/index.htm). As I anticipate my visit to Florida, I note that the University is the source of much significant scholarship on issues related to the intersection of land use and the environment. Below are abstracts of, and links to, 4 examples of the faculty’s works:
1) Christine A. Klein, "The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming" Boston College Law Review (2007). Available at SSRN: http://ssrn.com/abstract=967992:
Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council — the modern U.S. Supreme Court's seminal regulatory takings decision — this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own — forming what this Article calls the new nuisance doctrine. As this Article explains, nuisance is new in at least two important ways. First, it has taken on a new posture, evolving from defense, to offense, to catalyst for legislative change. Second, nuisance has taken on new substance, triggered in part by Lucas's explicit recognition that “changed circumstances or new knowledge may make what was previously permissible no longer so.
2) Danaya C. Wright & Scott A. Bowman, "Charitable Deductions for Rail-Trail Conversions: Reconciling the Partial Interest Rule and the National Trails System Act," William & Mary Environmental Law and Policy Review (2008), Available at SSRN: http://ssrn.com/abstract=1081655
This article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. But the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property interests in its corridor to a trail sponsor for interim trail use and retains a right to reenter in case rail service needs to be reactivated on the line. Thus, the dual purposes of the statute - interim trail use and rail preservation - are furthered by a process that prevents the corridor from being broken up and irrevocably lost. An important element of railbanking and trail conversion is the prospect for the railroads of a deduction from their income tax liability when they donate these corridors for public trail use. Recently, however, the Internal Revenue Service has begun to question the donations by invoking the so-called partial interest rule Should the IRS prevail in applying this rule, the deduction would be entirely disallowed under current Internal Revenue Code provisions. This article examines the intersection of these two areas of law and proposes ways the railroads can draft their trail use agreements to minimize the likelihood of being challenged by the IRS, and ways the IRS, the STB, Congress, and the railroads can work together to reconcile the conflict in these different laws. In the end, we believe that the rail preservation function is critical to the public welfare and that it is in everyone's best interest to further railbanking and interim trail use. But doing so requires careful drafting and perhaps regulatory changes to ensure that railroads do not unfairly take advantage of the tax system, while at the same time maintaining an incentive for railroad to railbank and offer their corridors for future public use.
3) Mark Fenster, "Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions" (2006). Available at SSRN: http://ssrn.com/abstract=925911:
In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), two regulatory takings decisions that reviewed “exactions,” regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their “nexus” and “proportionality” tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.
Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that “nexus” and “proportionality” provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.
4) Mary Jane Angelo, "Embracing Uncertainty, Complexity and Change: An Eco-Pragmatic Reinvention of a First Generation Environmental Law" (August 23, 2005). Available at SSRN: http://ssrn.com/abstract=788504:
Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, we are experiencing unprecedented declines in bird and wildlife species, as well as ecosystem services. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carryout its mission. Moreover, a number of lawsuits have been filed recently asserting that the registration of certain pesticides is in violation of the federal endangered species act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, such as the devastating impacts DDT had on predatory bird populations, which fueled the environmental movement of the late 1960's and early 1970's, largely have been ignored for the past 30 years. Only very recently has there been renewed interest in the ecological (as opposed to human health) risks posed by pesticides. Moreover, the explosion of pesticidal genetically modified organisms (GMOs) in agriculture has raised concerns regarding the novel risks to biodiversity posed by these new pesticides. Surprisingly, however, the primary federal statute governing pesticides, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), has not changed significantly with regard to ecological matters since 1972 and remains primarily a consumer protection statute not well suited for ecological protection. Moreover, the manner in which the Environmental Protection Agency (EPA) has implemented FIFRA has not kept pace with developments in our understanding of the uncertainty, complexity, and changing nature of ecological systems. This Article breaks new ground by being the first to use the new legal discipline of "eco-pragmatism" to analyze, and then reinvent, U.S. pesticide law to better protect ecological resources.
For years, environmental legal scholars have sought a middle ground between absolutist risk-based approaches to environmental regulation and cost/benefit analysis approaches. In the past several years, scholars have begun exploring the emerging field of eco-pragmatism - a dramatic new framework for environmental decision-making developed by Professor Daniel Farber - as a way to achieve a workable middle ground. Although a number of prominent legal scholars have analyzed eco-pragmatism in a general sense, none have attempted to apply an eco-pragmatic framework to any environmental pollution control law. This Article is the first to do so. This Article builds on Farber's work and the works of a number of other prominent legal scholars by first bolstering eco-pragmatism through consciously incorporating into it principles of ecological science, and then applying the strengthened eco-pragmatism to a long overlooked area - pesticide law. As the first attempt to actually apply eco-pragmatism to a field of environmental pollution control law, this Article represents an important step in the development of this area of legal theory. By analyzing current pesticide law as well as EPA's implementation of such law through an eco-pragmatic lens, this Article identifies areas of the law that are in need of revision and proposes revisions based on eco-pragmatic principles, which if implemented would greatly enhance our ability to protect critical ecological resources.
As I mentioned in my last post, I am making a couple of exceptions to my normal practice of blogging about only those resources that can be downloaded for free. The second book I recommend as great food for thought is: Ben Minteer’s The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006). Minteer is a professor in the Human Dimensions of Biology Faculty in the School of Life Sciences at Arizona State University. Trained in philosophy, Minteer has produced several works that transcend traditional disciplinary boundaries to tackle important questions about environmental ethics, conservation of nature, and democracy. A description of The Landscape of Reform (from the book jacket) appears below:
Ben Minteer offers a fresh and provocative reading of the intellectual foundations of American environmentalism, focusing on the work and legacy of four important conservation and planning thinkers in the first half of the 20th century:
Liberty Hyde Bailey, a forgotten figure of the Progressive conservation movement;
urban and regional planning theorist Lewis Mumford;
Benton MacKaye, the forester and conservationist who proposed the Appalachian Trail in the 1920s; and
Aldo Leopold, author of the environmentalist classic A Sand County Almanac.
Minteer argues that these writers blazed a significant “third way” in environmental ethics and practice, a more pragmatic approach that offers a counterpoint to the anthropocentrism-versus-ecocentrism – use-versus preservation – narrative that has long dominated discussions of the development of American environmental thought.
Minteer shows that the environmentalism of Bailey, Mumford, MacKaye, and Leopold was also part of a larger moral and political program, one that included efforts to revitalize democracy, conserve regional culture and community identity, and reclaim a broader understanding of the public interest that went beyond economics and materialism. . . . [He] considers two present-day manifestations of an environmental third way: 1) Natural Systems Agriculture, an alternative to chemical and energy-intensive industrial agriculture; and 2) New Urbanism, an attempt to combat the negative effects of suburban sprawl. By rediscovering the pragmatic roots of American environmentalism, writes Minteer, we can help bring about a new, civic-minded environmentalism today.