The Gator Nation’s Land Use & Environmental Research
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.