In Stop the Beach Renourishment Ruling, Conservatives Come up One Vote Short in Quest to Remake Property Rights Law

by John Echeverria | June 17, 2010

If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States.

The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” under the Fifth Amendment to the U.S. Constitution because the state and local governments acted to protect them and their neighbors from erosion (my amicus brief in the case is here). The alleged taking resulted from an extensive effort to build up the eroded shoreline with sand pumped from the ocean bottom offshore. Because the new beach was constructed atop publicly owned submerged lands, and paid for with public dollars, the public naturally enough claimed ownership of this new land.

Despite the fact that they were at serious risk of losing their homes to the ocean, plaintiffs claimed that the project impaired their property rights because it denied them direct contact with the ocean and deprived them of their common law right to expand their landownership through future accretions to their coastal property deposited by wind and waves. Most of the affected property owners thought they were getting more than a fair deal ...

Farber on NewsHour: BP Liability

by Matthew Freeman | June 16, 2010
CPR Member Scholar Dan Farber was on the PBS NewsHour on June 14 discussing the Obama Administration's plan to force BP to establish an escrow fund to compensate victims of its oil spill in the Gulf of Mexico.  You can see the entire interview with Ray Suarez, on the NewsHour site.  Here's a snip of the transcript: RAY SUAREZ: Daniel Farber, you're familiar with what's in that federal oil protection act. Is there a mechanism in there for the government to ...

BP Oil Spill: The Media, the President, and the Blame Game

by Matthew Freeman | June 15, 2010
It’s fascinating to listen to the media, with lots of encouragement from the right wing, inch its way toward blaming the BP Oil Spill on President Obama. Apparently the President’s job description includes a previously unknown provision about deep-sea plumbing expertise.  Let’s follow the media’s path for a moment here. First we heard media whining that the President was insufficiently engaged in the crisis, on the strength of no evidence whatsoever. Then the press went through a "false equivalency" phase, with a wave ...

EPA proposes general Clean Water Act permit for pesticides

by Holly Doremus | June 14, 2010
(Cross-posted from Legal Planet.) In January 2009, the Sixth Circuit in National Cotton Council v. EPA struck down a Bush-era rule declaring that pesticide application to or over waters was exempt from the Clean Water Act’s NPDES permit program, under which a permit is required for any discharge of pollutants to waters of the U.S. from a point source. The effect of that decision was later stayed until June 2011 to allow EPA time to respond. The agency has now ...

Voting Down a 'Murky' Resolution

by Daniel Farber | June 11, 2010
  Cross-posted from Legal Planet. On Thursday, the Senate voted down a resolution from Sen. Lisa Murkowski’s (R-AK) to halt EPA regulation of greenhouse gases. The vote was 53 to 47.  What are we to make of the vote? The resolution was offered under the Congressional Review Act, which provides a fast-track mechanism for Congress to override agency regulations.  (The CRA, which was part of the Contract with America in the 1990s,  is a substitute for the kinds of “legislative ...

Verchick’s ‘Facing Catastrophe’: A Roadmap to a Safer Future

by Daniel Farber | June 11, 2010
Rob Verchick’s new book, “Facing Catastrophe: Environmental Action for a Post-Katrina World,” might help avoid future disasters like the Deepsea Horizon blowout.  Verchick views wetlands, lakes, forests, and rivers as a kind of infrastructure, providing ecosystem services that are just as important as the services provided by other infrastructure, such as roads and dams. For instance, Gulf Coast wetlands provide a buffer against storm surges (protecting not only people but key oil facilities), and nurtures vast numbers of birds and sea ...

Bidding for Pollution Control Dollars in the Chesapeake: A Modest Proposal for the Amish Farmer

by Shana Campbell Jones | June 10, 2010
If I remember my Sunday School lessons correctly, “clean living” should result in a lot of good things in addition to a heavenly reward: a strong character, an orderly home, and a healthy body and environment.   Ironically for the Amish, a clean living group if there ever was one, clean living also produces dirty waters. As yesterday’s New York Times article reminds us, Amish farms in Lancaster county generate more than 61 million pounds of manure a year – much of ...

CPR Scholarship Round-up: Innovation for nonpoint source pollution and animal migrations on the one hand, and obfuscation at OIRA on the other

by Shana Campbell Jones | June 09, 2010
We’ve all seen the dramatic headlines recently concerning large-scale environmental disruptions, including a catastrophic oil spill in the Gulf and mining disasters killing workers from West Virginia to China. Meanwhile, in Congress, climate change bills are proposed, altered, weakened, and eventually shelved, and the United States still fails to take action on climate change. CPR’s Member Scholars march forward, however, proposing reforms that range from creating transparency in agency decisions to protecting animal migrations. Below is a quick overview of some of their ...

International Law Implications of the BP Oil Spill

by Yee Huang | June 08, 2010
Hundreds of offshore extraction platforms dot the world’s oceans, funneling millions of gallons each day of oil, natural gas, and other extracted resources to the surface. While these operations are regulated by the country where they’re located, they have the potential to cause international environmental disasters when located near boundary waters or near large currents. The New York Times looked at the international law implications of the ongoing BP Oil Spill and came to one conclusion: the international law governing oil pollution ...

Deepwater Horizon: Day 48

by Rebecca Bratspies | June 07, 2010
Cross-posted from IntLawGrrls Ever since the Deepwater Horizon began gushing oil into the Gulf of Mexico, BP has been dazzling the American people with a series of colorfully named “solutions:” the dome; top hat, junk shot, top kill. However, as the days turned into week, and the weeks turned into months, one thing has become crystal clear. None of these fanciful solutions had ever been tried in deep water, and BP was making things up as it went along. It ...

Texas' Clean Air Act Alamo May Win the Environmental War for us All

by Victor Flatt | June 04, 2010
In the little-followed but hugely important “joint federalism” system through which our environmental laws are implemented, a seismic change may be afoot that could vastly improve environmental compliance and environmental quality in the future. Last week, Al Armendariz, the head of the Environmental Protection Agency’s Region VI, indicated that unless significant changes are made by July 1, 2010, the EPA will take over Texas’s Clean Air Act program because of failures to follow the requirements of the Clean Air Act. The ...

Spotlight on CAFOs: EPA Settlement Requires More Info on CAFOs

by Yee Huang | June 03, 2010
EPA and a coalition of environmental groups recently settled ongoing litigation related to the regulation of concentrated animal feeding operations (CAFOs). The litigation dates back to 2003, when EPA finally proposed comprehensive regulation of CAFOs, and it centers on what actually constitutes a CAFO. The original Clean Water Act labeled CAFOs as point sources that require a permit to discharge pollution into water, but EPA dragged its feet not just on regulating CAFOs, but on deciding what was and wasn’t a CAFO. In ...

New Drywall Revelations, Courtesy of the Tort System

by Ben Somberg | June 03, 2010
ProPublica teamed with the Sarasota Herald-Tribune to put out an important investigative piece on drywall a few days ago -- "Tainted Chinese Drywall Concerns Went Unreported for Two Years." The article, by Joaquin Sapien and Aaron Kessler, reports that: A leading East Coast homebuilder learned four years ago that the Chinese-manufactured drywall it had installed in several Florida homes was emitting foul odors, according to documents obtained by ProPublica and the Sarasota Herald-Tribune. The company, WCI Communities, was so concerned ...

Looking Beyond Deepwater to the Horizon: Government-on-Demand Doesn't Work (Surprise!)

by Alyson Flournoy | June 02, 2010
In following the oil spill disaster, it can be hard to think beyond the control effort du jour to the bigger picture. I was riveted by the latest of BP’s seven failed efforts to stop the flow of oil, hoping it would succeed and that the underwater tornado of oil devastating the Gulf, the coast, and the people whose livelihoods depend on these natural resources, would be contained, at least. And now that the top kill has failed, we’re all ...

We've Known the Risks in the Gulf for Forty Years

by Daniel Farber | June 01, 2010
Cross-posted from Legal Planet. We’ve known all along that offshore drilling in the Gulf placed at risk exceptionally valuable and sensitive coastal areas.  We need look no further than a forty-year-old court decision on Gulf oil drilling, which made the dangers abundantly clear. In 1971, President Nixon announced a new energy plan involving greatly expanded offshore drilling.  In a landmark early NEPA decision, the D.C. Circuit held that the environmental impact statement gave insufficient consideration to alternative energy strategies.  The ...

NY Governor Paterson Holding up Mercury Reduction Initiative; Who Pays the Price?

by Ben Somberg | May 28, 2010
The Albany Times Union had a nifty, if depressing, scoop over the weekend in "Paterson bottling up mercury ban at plant": Efforts by the state Department of Environmental Conservation to ban mercury-tainted coal fly ash used by a Ravena cement plant have been bottled up for more than 19 months in a special regulations review office of Gov. David Paterson. The DEC request to yank permission from Lafarge North America for ash use at its Route 9W plant has been ...

EPA Announces New Policy on CBI in Health and Safety Studies

by Matt Shudtz | May 27, 2010
EPA today announced (pdf) that it will begin a general practice of reviewing – and likely rejecting – confidentiality claims regarding chemical identities and supporting data in health and safety studies submitted to the agency under TSCA.  The news is long overdue, but very welcome. One of Congress’s primary goals in drafting TSCA was to create regulatory mechanisms through which EPA would gather information about the human health and environmental effects of toxic chemicals. Recognizing the societal benefits of broad disclosure of ...

Why Federal Climate Change Legislation Shouldn't Stop States From Innovating in Adaptation Efforts

by Alejandro Camacho | May 27, 2010
Even if a climate change bill like Kerry-Lieberman were to become law, the effects of climate change will still be dramatic, making adaptation a crucial complement to mitigation activities for addressing climate change. As specialists on local conditions with the capacity to innovate at a smaller scale, state and local authorities need to retain the authority to adopt adaptation strategies that prevent, reduce, and manage the effects that climate change will have on vulnerable natural resources under their jurisdiction. Though a federal ...

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