Category: Environmental Law


Rurality and “Government Retreat”

The New York Times ran a story yesterday, dateline Roseburg, Oregon (population 21,000), headlined “Where Anti-Tax Fervor Means All Government Will Cease.”  This is not exactly breaking “news.”  This story has been around in some form, with varying degrees of urgency, for about five years.  See earlier installments here, here and here.  The gist of it is that many rural counties in the West which rely on federal funding streams (e.g., PILT, Secure Rural Schools and Community Self Determination Act monies, covered by stories herehere and here), have seen those monies taper off and in some cases dry up.

I want to be clear before going further that the federal funding streams these counties rely on are not giveaways, at least by my assessment.  They are intended to replace, in some small measure, tax dollars the counties cannot generate because property taxes cannot be levied on federal lands, which comprise vast portions of the West.  (The existence of such extensive public lands is also associated with other controversies, of course; read more here and here).  The existence of public lands may also have an impact on other ways local governments might choose to plump up their public coffers (read more here and here), and the existence of these lands limits the ways in which locals can earn a living, as in the timber industry or in ranching.

As a result of these funding cuts, many nonmetropolitan counties–those least likely to have other funding sources (taxes on robust business enterprises, for example)–are  cutting critical services.  Most news reports to date have focused on cuts to law enforcement, which has cultivated some “informal justice”/citizens “militias” type activity.  But this NYTimes story focuses on cuts to other services.  Highlighted in the story and illustrated by a photo is the fact that Douglas County–at 5,134 square miles, more than 2.5 times the size of Delaware and nearly as large as Connecticut–is about to close the last of the 11 library branches it previously boasted.  The one in Roseburg, the county seat, will be the last to go.  Kirk Johnson, NY Times reporter based out west, reports that Douglas County residents recently voted down a ballot measure that “would have added about $6/month to the tax bill on a median-priced home,” a measure that would have saved the libraries from crisis and closure.

I could digress here into a long discussion about how critically important libraries are for all sorts of reasons, not least these days that–in my suburb and many other California locales–they accommodate many homeless people during the day, providing them a lifeline (the Internet) to identifying and getting services.  I know that my family and I use our neighborhood library on a weekly basis, even though I have ready access to a fabulous academic library.  A 2013 story about the particular benefits of libraries in rural communities is here, and broadband is a big part of the story.   A more recent library story out of rural northern California about the power of books in children’s lives is here.

But Johnson makes the point that libraries are not the only thing on the chopping block in Douglas County.  The failed library initiative is like many others in Douglas and neighboring counties (e.g., Curry and Josephine) that voters have rejected in the last decade.  Another very sobering illustration of the southwest Oregon situation is the fact that Curry County has only one full-time employee in the elections division of its clerk’s office and therefore may have difficulty holding an election this fall.  (I’ve documented here and here similar phenomena in my home county in Arkansas, another place heavily reliant on PILT because of the presence of public lands set aside as Ozark National Forest and Buffalo National River).

There is so much I could say about this particular rural trend to shrink government, sometimes to an extreme degree.  But I just want to make a few points in regard to theoretical legal geography regarding how spatiality and law are co-constitutive.   I have argued as a related matter that rural society and rural spatiality are co-constituting, as reflected in a less robust presence of law, legal actors, and other institutions and agents of the state in rural places.  I framed it as “space tames law tames space” in a frustrating feedback loop:  it is expensive for the state to do its work when the area to be governed is vast and when residents emotionally and intellectually resist vesting power (including via tax dollars)  in the state.  I would characterize this feedback loop as disabling, though I understand some rural residents of a more libertarian bent would see it as enabling–enabling the individual, that is, fostering self-sufficiency.

My argument about the relative “lawlessness” of rural and remote places has not been uncontroversial.  Lots of folks see small towns as the epitome of order and law-abiding-ness and have pushed back against my argument.  Yet it seems that my point is very well illustrated by this detail from Johnson’s article, which he offers as an illustration of “government retreat”:

It looks like the house on Hubbard Creek Road in Curry County, where owners went for more than 10 years without paying any property taxes at all because the county assessor’s office couldn’t field enough workers to go out and inspect. The house, nestled in the woods with a tidy blue roof and skylights, dodged more than $8,500 in property taxes that would have gone to support the schools, fire district and sheriff, because government had gotten too small to even ask. So things fall even further, with cuts to agencies that actually bring in revenue prompting further cuts down the line.

So there you have it:  a community envisages itself as not needing law, regulation and the state, so it underfunds government to such an extent that the state can no longer support itself and perform (m)any government functions.  This, in turn, further fuels the imaginary–and reality–of an anemic and unhelpful state.  The state is thus discredited, thereby further undermining the state’s ability to justify the raising of revenue or to do, well, much of anything.

Which came first, the chicken or the egg?  the state’s inability to be effective?  or the perception that it would necessarily be ineffective and a consequent decision not to fund it, thereby rendering it (more?) ineffective, unhelpful, and inefficient?

As for when a community goes too far in its retreat from public institutions…well, the defeat of the library tax crossed that line for some.  Johnson quotes a Douglas County resident, 54-year-old Terry Bean, a construction manager who supported the library tax, though he had opposed other local taxes.  In explaining his position he invoked another concept associated with rural livelihoods:  community.

There is conservative, said Bean, flicking a cigarette butt into the bed of his pickup truck, and then there is community. And people got them confused.

The library, he said, was something a person could use — for computers, if not for books — even if that person didn’t have a dime, and he still respects that.

And that, in turn, brings me back to my earlier point:  doesn’t everyone reap communitarian benefits from the public library?  even the richest of folks who may never darken its doors.


Ideological Blindspots and More

Here are two recent posts from Max Stearns’s The Blindspot:

Ideological Blindspots (part 2): The Grandchildren

Max Stearns

Liberals and conservatives tend to take sharply divergent views of two major issues: global climate change and the looming national debt. But they share one attribute in common. Both sides believe that by focusing on the issue that most concerns them, they, unlike their opponents, are protecting the interests of their children, grandchildren, and great grandchildren. Caring about our progeny demands attending to both issues, and also to understanding how they interrelate.

Conservatives point out the looming national debt, which, as I write, is hovering at just shy of $20 trillion dollars. See The federal deficit is hovering at $591 billion. To understand what this means, we need to clarify some terminology.   Read More


UCLA Law Review Vol. 63, Issue 6

Volume 63, Issue 6 (August 2016)

President Nixon’s Indian Law Legacy: A Counterstory Carole Goldberg 1506
Principles of International Law That Support Claims of Indian Tribes to Water Resources Reid Peyton Chambers & William F. Stephens 1530
Crime and Governance in Indian Country Angela R. Riley 1564
Recentering Tribal Criminal Jurisdiction Addie C. Rolnick 1638
The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship Rebecca Tsosie 1692



Tribal Sovereignty, Tribal Court Legitimacy, and Public Defense Lindsay Cutler 1752
The Double-Edged Sword of Sovereignty by the Barrel: How Native Nations Can Wield Environmental Justice in the Fight Against the Harms of Fracking Geneva E.B. Thompson 1818

UCLA Law Review Vol. 63, Issue 5

Volume 63, Issue 5 (June 2016)

How Governments Pay: Lawsuits, Budgets, and Police Reform Joanna C. Schwartz 1144
Second-Order Participation in Administrative Law Miriam Seifter 1300
The Freedom of Speech and Bad Purposes Eugene Volokh 1366



Evolving Jurisdiction Under the Federal Power Act: Promoting Clean Energy Policy Giovanni S. Saarman González 1422
Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble Samuel S. Sadeghi 1472

Sometimes the Parties Can Work Together and Even on an Environmental Issue

Given how often we see the utter dysfunction of Congress, when I see a sign of Congress working, it merits calling out. According to the Washington Post, “The Senate has passed a much-anticipated bill proposing broad reforms to an existing chemical safety law — one which environmentalists have long argued puts the American public at unnecessary risk of exposure to toxic substances.” The law, the TSCA, is about 40 years old and requires so much proof of harm that even a substance like asbestos was difficult to regulate let alone ban. Thus “The bill, dubbed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, [and which] has been in negotiations for more than two years and finally went to a vote Thursday night, where it passed with bipartisan support” is a big step forward. The Post details that some groups dislike parts of the bill, and the House version is less broad, but it too has bipartisan support. If al goes well and the final version has teeth, that would mean both houses and the parties can fix a bill like this one, and that is a great sign.

As a general note, I am curious about the proof standard at issue. If folks who follow this area know what it is or have thoughts on what is should be, please share.

A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.

Leading the World with Free Trade

As debate heats up on the Trans-Pacific Partnership trade deal, journalists should keep a few key points in mind. First, the deal is in essence deregulatory, shifting enormous power to multinational corporations to challenge basic legal protections of consumers and citizens. Second, the US has a history of using its power in the global trading system to promote fundamentally unsafe products and services to other nations. Consider this snippet from a story on lead paint:

By the 1920s, it was known that one common cause of childhood lead poisoning was the consumption of lead paint chips. . . . In 1922, the League of Nations proposed a worldwide lead paint ban, but at the time, the US was the largest lead producer in the world, and consumed 170,000 tons of white lead paint each year. The Lead Industries Association had grown into a powerful political force, and the pro-business, America-first Harding administration vetoed the ban. Products containing lead continued to be marketed to American families well into the 1970s, and by midcentury lead was everywhere: in plumbing and lighting fixtures, painted toys and cribs, the foil on candy wrappers, and even cake decorations. . . .

Lead paint was the most insidious danger of all because it can cause brain damage even if it isn’t peeling. Lead dust drifts off walls, year after year, even if you paint over it. It’s also almost impossible to get rid of. Removal of lead paint with electric sanders and torches creates clouds of dust that may rain down on the floor for months afterward, and many children have been poisoned during the process of lead paint removal itself. Even cleaning lead-painted walls with a rag can create enough dust to poison a child.

Of course, at this stage in the development of globalization, toxic financial products are a greater concern than toxic chemicals.  We’ve also advanced toward more subtle ways of assuring their proliferation. But the core mission of “free trade” law in this, as in so many areas, is relatively clear: to open yet another venue where corporations, far from being held accountable for their actions, can instead undermine crumbling extant legal protections for consumers.


Fusion and the Firm

Lockheed Martin claims it is closing in a fusion reactor. Such claims pop up often enough to be dismissed. Yet as the Economist notes Lockheed Martin is asserting that its design could be viable in 10 years rather than previous claims by others which tended to be 30 years. One random, nice thing about being at GA Tech is that when I first read about the claim, I happened to meet a PhD student who was studying nuclear engineering on the campus tram. He confirmed that the approach is known. He was skeptical but agreed it was promising. And that is where the firm comes in. Apparently Lockheed Martin has gone public, because to get the design to production will require the help of folks outside the firm. The researcher, Dr. McGuire, “thinks his design could deliver a 100MW reactor (able to power 80,000 homes) of about 7 metres in diameter, weighing less than 1,000 tonnes. Indeed, smaller versions might fit on a large lorry.” It may be a pipe dream, and with oil on a free fall, investment in new energy sources may seem less attractive. Still, if the idea is percolating in private and public arenas and the payoff is a clean, less expensive, renewable energy source, that would be amazing. I recall just after President Clinton left office and was on Letterman, he said if he were an oil country, he’d be thinking of energy, not oil, as the industry of the the future. Rather smart insight. Seems others are paying attention, but that works too.


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


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