Craig Anthony (Tony) Arnold's blog

Adapation and Resilient Cities (Biophilic Cities Guest Blog on Adaptive Law and Resilient Cities, Part 4)

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This month the Biophilic Cities Project has been posting a series of guest blog entries by me on how principles of adaptive law developed by Lance Gunderson and me might apply to cities and their resiliency.  This is Part 4 of the series, about adaptation (including adaptive management, adaptive planning, and adaptive governance) and resilient cities:  http://biophiliccities.org/resilient-cities-and-adaptive-law-pt-4-adaptation-resilient-cities/

Private Property Rights and Resilient Cities (Biophilic Cities Blog on Adaptive Law and Resilient Cities, Part 3)

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This month the Biophilic Cities Project has been posting a series of guest blog entries by me on how principles of adaptive law developed by Lance Gunderson and me might apply to cities and their resiliency.  This is Part 3 of the series, about private property rights and resilient cities:  http://biophiliccities.org/resilient-cities-adaptive-law-pt-3-private-property-rights-resilient-cities/

Biophilic Cities Guest Blog on Adaptive Law and Resilient Cities (Part 2)

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This month the Biophilic Cities Project has been posting a series of guest blog entries by me on how principles of adaptive law developed by Lance Gunderson and me might apply to cities and their resiliency.  This is Part 2 of the series, about local governance and resilient cities:  http://biophiliccities.org/resilient-cities-adaptive-law-pt-2-local-governance-resilient-cities/

 

Biophilic Cities Guest Blog on Resilient Cities and Adaptive Law (Part 1)

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I am guest blogging on resilient cities and adaptive law over on the Biophilic Cities blog. 
This is the first of four parts based on recent work on adaptive law concepts by environmental scientist Lance Gunderson and me, and how these concepts might apply to the social-ecological resilience of cities.  The link is here:

http://biophiliccities.org/resilient-cities-and-adaptive-law-pt-1-resilience-science-the-legal-system/

 

U of L land use planning & law students' urban tree plan basis for Louisville's Urban Forest Action Plan

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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:

http://www.jefferson.k12.ky.us/Departments/EnvironmentalEd/GreenCity/UrbanTreeCanopyPlan.pdf 

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.

Boehl Lecture Series at U of L featured in Land Use Blog

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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.

http://lawprofessors.typepad.com/land_use/2011/02/land-use-lecture-series-the-boehl-lecture-example.html

Judith Wegner and Annexation

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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:

http://lawprofessors.typepad.com/land_use/2011/01/judith-wegner-annexation-and-the-boehl-lectures-1.html

Joining the Land Use Prof Blog

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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:

http://lawprofessors.typepad.com/land_use/2011/01/introducing-tony-arnold.html

Ecosystem Services (Part IV): Issues in Valuing Ecosystem Services

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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       

 

Abstract:    

 

 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     

 

 Abstract:     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    

 

 Abstract:      

 

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    

 

 Abstract:       

 

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       

 

Abstract:     

 

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.

 

Ecosystem Services (Part III): Property Law and Ecosystem Services

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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). FSU College of Law, Public Law Research Paper No. 214. Available at SSRN: http://ssrn.com/abstract=928656    

 

Abstract:    

 

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). FSU College of Law, Public Law Research Paper No. 216. Available at SSRN: http://ssrn.com/abstract=931248    

 

Abstract:  

 

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. FSU College of Law, Public Law Research Paper No. 217. Available at SSRN: http://ssrn.com/abstract=934393    

 

Abstract:    

 

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.