Category: Environmental Law

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Should More Land Use Professors Be Libertarians?: Part III (Final Post)

This is (hopefully) the last in a series of three posts. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.   Read More

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Should More Land Use Professors be Libertarians? Part II

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent downtown-houston-at-night-1430683-sthe aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning? Read More

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Should More Land Use Professors be Libertarians?

Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

The organization of local governments, on the surface a merely technical matter, has fallen victim to a similar pattern of what public choice scholars call “rent-seeking.” Cities look to annex neighboring unincorporated areas in order to gobble up their tax base, while affluent small areas incorporate in order to resist the redistribution of wealth to poorer neighborhoods and prevent unwanted land use sitings. Metropolitan regions have been fragmented into dozens of little local fiefdoms, each acting with little regard for its neighbors. Sprawl, inefficiency, interlocal inequality and de facto racial segregation are the consequences, and the norm, in most metropolitan regions. Read More

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UCLA Law Review Vol. 61 Symposium: Vol. 61, Issue 6

Volume 61, Issue 6 (July 2014)
Articles

Public Utility and the Low-Carbon Future William Boyd 1614
An Open Access Distribution Tariff: Removing Barriers to Innovation on the Smart Grid Joel B. Eisen 1712
Valuing National Security: Climate Change, the Military, and Society Sarah E. Light 1772
Lessons From the Past for Assessing Energy Technologies for the Future Albert C. Lin 1814
Complexity and Anticipatory Socio-Behavioral Assessment of Government Attempts to Induce Clean Technologies Gary E. Marchant 1858
Feasibility of Flexible Technology Standards for Existing Coal-Fired Power Plants and Their Implications for New Technology Development Dalia Patino-Echeverri 1896
Socio-Political Evaluation of Energy Deployment (SPEED): A Framework Applied to Smart Grid Jennie C. Stephens, Tarla Rai Peterson & Elizabeth J. Wilson 1930
Energy and Climate Change: A Climate Prediction Market Michael P. Vandenbergh, Kaitlin Toner Raimi & Jonathan M. Gilligan 1962
Regulating Domestic Carbon Outsourcing: The Case of China and Climate Change Alex L. Wang 2018

 

Comments

Smart Meters, Smarter Regulation: Balancing Privacy and Innovation in the Electric Grid Samuel J. Harvey 2068

 

 

 

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548

 

 

 

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Economic Dynamics and Economic Justice: Making Law Catastrophic, Middling, or Better?

Contrary to Livermore,’s post,  in my view Driesen’s book is particularly powerful as a window into the  profound absurdity and destructiveness of the neoclassical economic framework, rather than as a middle-ground tweaking some of its techniques.  Driesen’s economic dynamics lens makes a more important contribution than many contemporary legal variations on neoclassical economic themes by shifting some major assumptions, though this book does not explore that altered terrain as far as it might.

At first glance, Driesen’s foregrounding of the “dynamic” question of change over time may, as Livermore suggests, seem to be consistent with the basic premise of neoclassical law and economics:   that incentives matter, and that law should focus ex ante, looking forward at those effects.   A closer look through Driesen’s economic dynamics lens reveals how law and economics tends to instead take a covert ex post view that enshrines some snapshots of the status quo as a neutral baseline.  The focus on “efficiency” – on maximizing an abstract pie of “welfare”  given existing constraints —  constructs the consequences of law as essentially fixed by other people’s private choices, beyond the power and politics of the policy analyst and government, without consideration of how past and present and future rights or wrongs constrain or enable those choices.  In this neoclassical view, the job of law is narrowed to the technical task of measuring some imagined sum of these individual preferences shaped through rational microeconomic bargains that represent a middling stasis of existing values and resources, reached through tough tradeoffs that nonetheless promise to constantly bring us toward that glimmering goal of maximizing overall societal gain (“welfare”) from scarce resources.

Driesen reverses that frame by focusing on complex change over time as the main thing we can know with certainty.  In the economic dynamic vision, “law creates a temporally extended commitment to a better future.” (Driesen p. 52). Read More

Latour on Agnotology

Bruno Latour reminds us of a rather important development in modern times: the ascent of an “unlearning” industry. He sheds new light on the “marketplace of ideas” metaphor:

[I]n the United States alone something like a billion dollars . . . is being spent to generate ignorance about the anthropic origin of climate mutations. In earlier periods, scientists and intellectuals lamented the little money spent on learning, but they never had to witness floods of money spent on unlearning what was already known. While in times past thinking critically was associated with looking ahead and extracting oneself from an older obscurantist past, today money is being spent to become even more obscurantist than yesterday! “Agnotology”, Robert Proctor’s science of generating ignorance, has become the most important discipline of the day.

Doubt can be a profitable product.

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Partial Taking in the Dunes of New Jersey: The Harvey Cedars Case

This past July, the New Jersey Supreme Court handed down Borough of Harvey Cedars v. Karan, 70 A.3d 524 (2013). In one sense this is a technical case about the rules of just compensation for a partial taking. The New Jersey Supreme Court clarified the distinction between “special benefits,” which can be offset against the compensation owed for a partial taking, and “general benefits,” which cannot. Where a dune restoration project would provide protection to a home in immediate proximity to the shore, if the value of that protection can be determined, it should be deducted from the compensation owed, even though the dune provides flood protection of the same kind—but in significantly less degree–to rows of houses further back from the ocean. The New Jersey Supreme Court determined that an evidentiary ruling excluding evidence of the benefit was erroneous as a matter of law, and remanded for a new trial. All five Justices participating in the opinion agreed.

The case is of more general interest because the public project involved concerned construction of a dune barrier on private property along New Jersey’s barrier islands. It’s a disaster law and climate change case. Dune projects have been underway here for some time–this one began in 2008–with the United States Corps of Engineers doing the heavy lifting, state and municipalities cooperating and chipping in a smallish part of the cost. All of Long Beach Island is part of a big old beach and dune project. And dune projects have gained special salience after Superstorm Sandy.

In the Borough of Harvey Cedars, on Long Beach Island, dune construction required the cooperation of all 82 beachfront property owners. Sixteen of them declined, forcing the municipality to begin condemnation proceedings for a strip of each recalcitrant property owner’s land. In this particular case, the Karans refuse to grant a dune easement over about a quarter of their property; the easement included a dune 22 feet high, replacing one 16 feet high. A right of public access came along with the new dune as well. So the Karans wound up with a view of other folks’ beach recreation activities on the higher dune, not the water view they had previously enjoyed. Evidence supporting the argument that the Karans’ $1.9 million home would benefit from the flood protection afforded by the dune to the tune of several hundred thousand dollars was excluded from a jury by the trial court, on the theory that the entire community also benefitted, and that therefore the flood protection was a “general benefit” which could not legally be offset against the compensation owed the Karans. The Karan’s expert had testified that they should receive $500,000 from Harvey Cedars. The Harvey Cedars expert (from the Corps of Engineers) testified that the proper amount of compensation was $300. But he couldn’t point to evidence of benefit from flood protection because it had been excluded. The jury returned a compensation award of $375,000, principally for loss of view. You can do the math and see what this does to the possibility of any dune project. Holdouts galore. No project. Read More

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A Modest Proposal: Install Permanent Blue Lines Physically Along the Coast

There’s been quite a hullaballoo nationally and regionally on this the first anniversary of Superstorm Sandy. Sandy, you will recall, pummeled the coast of New Jersey and New York for days last October, killing an estimated 285 people, destroying or damaging 650,000 homes and 200,000 businesses, leaving 8,600,000 homes and businesses without power, gas, or water, and shutting down New York City’s subway system for days, crippling the city. The estimated cost of Sandy was $65 billion dollars.

Monmouth University held an excellent online symposium about the response to Sandy on October 29, the anniversary of Sandy’s landfall. Here are youtubes of the morning and afternoon sessions.

Among the notable speakers was Coast Guard Admiral Thad Allen, who directed the national response to hurricanes Katrina and Rita, served as the National Incident Commander in the BP Deepwater Horizon blowout, and was appointed by New York Governor Cuomo to co-chair a task force on New York State’s responses to future weather-related disasters. Another notable was Christine Todd Whitman, former Governor of New Jersey and former Administrator of the United States Environmental Protection Agency. She resigned as I recall over differences with the George W. Bush administration over whether climate change was going to be a serious problem.

A pollster from and institute at Monmouth University reported that only about half the folks who were supposed to evacuate the New Jersey shore did so; and that when polled later, about the same number said they would not evacuate the next time.

And there surely will be a next time. Another speaker suggested that even a four foot sea level rise by 2100, somewhere in the mid-range of credible estimates, would drastically increase the frequency of severe floods. He offered the analogy of a basketball court. Raise the floor a few inches and you get more dunks. Raise the floor a couple of feet and all you get is dunks. Add to that that many major cities are less than five feet above sea level now – among them Hoboken and Atlantic City here in New Jersey – and that spells trouble with a capital T.

And yet there is this persistent insistence on retaking the land, rebuilding bigger and better, standing up to the storm. Read More

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Shame On You! Hand Over That Dune Easement!

This blog post is the second in my series of four this month on coastal land management and disaster. It will be just a bit shorter than the last, and focuses on the efforts of one among several Jersey Shore beach communities, Long Beach Township, in Ocean County, to use shame as an incentive and punishment for beachfront property owners who have refused to negotiate easements necessary for a protective beach and dune restoration project.

First, some background. New Jersey has something like 127 miles of Atlantic Ocean shoreline – barrier islands, marshes, and inlets. All of its length is developed, with few exceptions. This practice of barrier island development goes well back into the 19th century. Long Branch, in Monmouth County (not to be confused with Long Beach), called itself the “home of Presidents”. It became accessible by rail early on, and seven nineteenth-century presidents summered there. One, James Garfield, died there, after he was shot and taken there for what turned out to be some very bad medical treatment.

Apart from the results of a few episodic impulses to preserve (among them Island Beach State Park and the Sandy Hook element of the Gateway National Recreation Area), all the rest of the buildable New Jersey shore is built. And how! There are the more exclusive enclaves, and also towns with beaches that are narrow and crowded and commercial. In most places you have to pay to get onto the beach. To the chagrin of many a first-year property student, there’s a whole case law and scholarly literature about beach access below the mean high tide line and the public trust doctrine, centered on a series of New Jersey cases. More exclusive towns still try various stratagems to exclude outsiders (What, no all day parking? No changing facilities?). Other towns just let outsiders in as daily visitors or weekly renters and take their money.

For protection against storms, much of the Jersey Shore has been reinforced with hard structures such as sea-walls and groins, which project out into the ocean and supposedly prevent sand from migrating down current. Coastal geologists generally consider what has happened in New Jersey a very bad way to manage beaches on barrier islands. It just fosters erosion and imperils structures that shouldn’t have been built there anyway. Beaches gotta move. See, e.g., Wallace Kaufman & Orrin H. Pilkey, Jr., The Beaches Are Moving: The Drowning of America’s Coastline. Read More