Law Commons^™

Green Amendments Land Use And Transportation: What Could Go Wrong?, Michael Lewyn

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Numerous states have amended their constitutions to include a green amendment (that is, an amendment providing that the state's citizens have a right to a healthy environment). Unfortunately, the vagueness of these amendments leaves an enormous amount of interpretative power to courts. This article examines how some courts have interpreted green amendments and how these interpretations risk the misuse of green amendments. Additionally, this article examines how such misuse may be avoided.

New York’S Professor John R. Nolon: A National Leader In Land Use Law With A Large Impact Across The Hudson Valley And The State Of New York, Patricia E. Salkin, Samuel Stewart

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As Professor John R. Nolon steps down from active law teaching, this article reflects not only on his contributions as a national thought leader in the field, but also on how he has a hand in changing the land use and conservation patterns in New York while promoting affordable housing and combating discrimination.

Commentary: Dan Mandelker—A Land-Use Legacy Unlike Any Other, Patricia E. Salkin

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It is an honor to share thoughts about the importance of Professor Daniel Mandelker’s legacy to the field of land-use and zoning law. The word “legacy” means, among other things, “something that is part of your history or that remains from an earlier time.” At ninety-two, he was the longest actively teaching land use law professor in the United States. His academic career began in 1949 when he was appointed an Assistant Professor at Drake Law School, with relatively short stints at the University of Indiana Law School and Columbia Law School, followed by his appointment at Washington University School …

Global Climate Governance In 3d: Mainstreaming Geoengineering Within A Unified Framework, Gabriel Weil

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The failure of conventional climate change mitigation to reduce climate-related risks to tolerable levels has spurred interest in more unconventional—and riskier—climate interventions. What currently sounds like science fiction could become a reality in the not-so-distant future: planes blasting particles into the sky to block the sun, vast deserts covered with mirrors, algae sucking carbon into the depths of the ocean. Scholars tend to lump all these unconventional climate measures together in a fuzzy category called “geoengineering,” and set them apart from conventional climate change mitigation. But the characteristics of climate interferences vary across three distinct dimensions, which the mitigation-geoengineering dichotomy …

The Case Against The Case For Zoning, Michael Lewyn

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Power points used in a presentation on a work in progress, responding to Christopher Serkin's "Case For Zoning" article at 96 Notre Dame L. Rev. 749.

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

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Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a one-dimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …

Mitigating Climate Change Through Transportation And Land Use Policy, Alejandro E. Camacho, Melissa L. Kelly, Nicholas J. Marantz, Gabriel Weil

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A number of U.S. state and local governments have adopted strategies for reducing greenhouse gas (GHG) emissions from transportation and land development. Although some have made significant progress in reducing GHG emissions from the power sector, transportation emissions in most states continue to rise. This Article details the range of existing and proposed state interventions to reduce transportation sector GHG emissions, analyzes the trade offs of these strategies, and offers recommendations to improve and supplement such initiatives, including strategic use of planning mandates and funding and technical assistance. Additionally, regulating land use, shifting transportation spending, removing barriers to implementing road …

Incentive Compatible Climate Change Mitigation: Moving Beyond The Pledge And Review Model, Gabriel Weil

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Climate change represents a global commons problem, where individuals, businesses, and nation-states all lack sufficient incentives to reduce their greenhouse gas emissions to levels consistent with meeting their collectively agreed upon mitigation goals. The current "pledge and review" paradigm for global climate change mitigation, which many see as a major breakthrough, relies primarily on moral pressure, reputational incentives, and global public opinion to foster cooperation on mitigation efforts over and above those driven by maximization of narrow conceptions of national interests. Given the scale of the emissions reductions required to meet stated mitigation goals, the substantial economic costs of deep …

The Environmentalist Case For Sprawl- And Why It Fails, Michael Lewyn

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Environmentalists generally favor compact, walkable development, because development that reduces automobile use may reduce automobile-related pollution. Defenders of suburban sprawl argue, however, that compact development may actually increase pollution in a variety of ways. This article criticizes the latter argument.,

Yes To Infill, No To Nuisance, Michael Lewyn

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This article argues against the use of private nuisance suits to exclude apartments from residential neighborhoods, based on the public interest in affordable housing and walkable infill development.

Sink Or Swim: In Search Of A Model For Coastal City Climate Resilience, Sarah Adams-Schoen

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New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to decrease the city’s contribution to the problem and to make the city less vulnerable to the effects of climate change. This detailed analysis of the city’s climate change resilience initiatives concludes that, although many of the city’s initiatives provide a model for other coastal communities, the initiatives likely still fall short of what is required to sufficiently moderate harm from dangerous interference with …

A Three-Legged Stool On Two Legs: Recent Federal Law Related To Local Climate Resilience Planning And Zoning, Sarah Adams-Schoen, Edward Thomas

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Notwithstanding a critical gap between climate change related risks and preparedness in the United States, congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon. Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development. Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA) …

A Response To The Ipcc Fifth Assessment, Sarah Adams-Schoen, Deepa Badrinarayana, Cinnamon Pinon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan D. Rosenbloom, Inara K. Scott, David Takacs

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This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result …

Land Use Law Update: New York's New Climate Change Resiliency Law, Sarah Adams-Schoen

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New York State’s lawmakers passed 2,603 bills over the course of the 2013-14 session, 658 of which passed both houses. Although counties and local governments are likely focusing their attention on budget-related items such as the property tax freeze/rebate program, local governments — and zoning and planning officials and practitioners in particular — should also take note of the newly enacted Community Risk and Resiliency Act (CRRA).

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 2 Of 2), Sarah J. Adams-Schoen

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New York City, like other major cities around the world, has acknowledged the problem of climate change and begun to implement proactive policies to decrease the city’s contribution to the problem (i.e., mitigation) and to make the city less vulnerable to the effects of climate change (i.e., adaptation). The City’s initiatives have been comprehensive and progressive, especially its climate change-related data analysis and communication initiatives including NPCC, and its comprehensive reform of building and other related codes. The City’s commitment to reduce greenhouse gas emissions by 30% by 2030 and its progress toward that goal are also laudable, but the …

How Environmental Review Can Generate Car-Induced Pollution: A Case Study, Michael Lewyn

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The National Environmental Policy Act (“NEPA”) requires federal officials to draft an environmental impact statement (“EIS”) describing the environmental impact of proposed federal actions that significantly affect the environment, as well as analyze the environmental impacts of alternatives to the proposed action. Almost two dozen states have adopted “little NEPA” statutes imposing similar requirements upon state and/or local governments. This article focuses on one of the strictest little NEPA statutes: New York's State Environmental Quality Review Act (“SEQRA”). While most little NEPA statutes cover only government projects,SEQRA also covers private sector projects requiring municipal permits. Furthermore, SEQRA requires the government …

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

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Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …

On The Waterfront: New York City's Climate Change Adaptation And Mitigation Challenge (Part 1 Of 2), Sarah J. Adams-Schoen

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New York City is a city on the waterfront. With 520 miles of coastline, New York City’s coastline is longer than the coastlines of Miami, Boston, Los Angeles and San Francisco combined. Nearly nine million New Yorkers live in areas vulnerable to flooding, storm surges and other natural disaster-related risks that are increasing as a result of climate change.

New York City didn’t wait for a devastating storm to begin comprehensively addressing the effects of climate change. The City’s extensive climate change mitigation and resiliency efforts and communications strategy have put the City in a league of its own. But, …

Climate Change Adaptation And Mitigation: A Local Solution To A Global Problem, Sarah J. Adams-Schoen

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Local land use laws offer powerful tools for climate change adaptation and mitigation. However, notwithstanding New York municipalities’ many impressive efforts, local laws are not yet being utilized sufficiently to create disaster-resilient or disaster-adaptive communities. New York City has done substantially more than many other cities, including, critically, setting specific CO2 emissions reduction targets and amending zoning and building codes. But, in light of the evidence of climate change and its impacts, local decision makers, resource managers, and planners throughout the state must ask whether we are doing enough. Failure to do so will continue to be costly in terms …

Plans Are Not Enough, Michael Lewyn

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Some commentators see comprehensive municipal plans as a remedy for suburban sprawl. But in fact, a plan can be used to promote sprawl as well as to prevent sprawl.

Seqra And Infill, Michael Lewyn

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New York's State Environmental Quality Review Act (SEQRA) is designed to protect the environment by requiring government to consider the harmful environmental impacts of its actions. However, SEQRA itself may create environmental harm by discouraging infill development.

What Every Land Use Lawyer Should Know About The Emerging Use Of Health Impact Assessment And Land Use Decision Making, Patricia E. Salkin, Pamela Ko

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The field of Health Impact Assessment is relatively new to the United States, but already a number of state and local governments are incorporating these assessments into land use planning and decision making. In five years, the use of HIA in the U.S. has increased dramatically with more than 100 HIAs completed or in progress in the U.S. from 2007 to 2010. This article provides a brief overview of HIA in the United States, describes how it is being used in other states with respect to land use decision making, and examines how HIA is starting to be incorporated into …

Why (And How) Conservatives Should Support Smart Growth, Michael Lewyn

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Conservatives have generally been critical of the smart growth movement, because they often fear that smart growth is synonymous with overregulation of land use. This article explains why sprawl threatens conservative values, and suggests conservative-friendly smart growth policies that can both make government less intrusive and make America more walkable.

The Key To Unlocking The Power Of Small Scale Renewable Energy: Local Land Use Regulation, Patricia E. Salkin

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Myriad federal and state programs have been promoted to incentivize the research and development of renewable energy as a means of achieving sustainability and producing more affordable alternative energy systems, and these programs could potentially have a profound impact on the way that electricity is produced and consumed in the United States. Small-scale renewable energy generation from sources such as solar and wind, that can be used at the consumer level as a source of power for homes and small businesses, is an important part of this paradigm shift. However, regardless of the fiscal incentives offered to clean-tech companies to …

Government "Green" Requirements And "Leedigation", Patricia E. Salkin, Graham Grady, Nicole Mueller, Susan Herendeen

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No abstract provided.

Sustainability As A Means Of Improving Environmental Justice, Patricia E. Salkin, John C. Dernbach, Donald A. Brown

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This article explains why environmental justice provides much of the foundation for sustainable development, and shows how sustainability can improve our ability to achieve environmental justice. The article first explains a basic but often unrecognized truth about environmental policy: environmental pollution and degradation, sooner or later, harms humans. Both sustainable development and environmental justice respond to this problem, though in somewhat different ways. Sustainable development, however, suggests a broader set of tools to address this problem than are often employed for environmental justice. The article shows how four broad approaches — more and better sustainability options, law for sustainability, visionary …

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

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This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

Honey, It’S All The Buzz: Regulating Neighborhood Beehives, Patricia E. Salkin

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Beekeeping’s popularity has surged in recent years, perhaps culminating in the introduction of the first ever White House bee hive. Local Apiaries provide a wide variety of benefits to communities, ranging from pollination services for gardens to producing honey that can be used in a wide array of foods and products. Apiaries are not always welcome in a community, however, perhaps because of their potential to cause a nuisance, or to harm crops or people. Although beekeeping regulation implicates both state and federal concerns a number of localities have developed unique and practical regulations that promote backyard beekeeping, while maximizing …

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

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New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the …

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

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Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.