Sackett wetlands

Could the Supreme Court decision regarding Sackett v. EPA leave Louisiana's wetlands unprotected? NOLA.com explains their concerns.

The road ahead for nondelegation

Supreme Court watchers are keeping an eye on an interesting case that is under consideration from the US Supreme Court. The case, WV v EPA, is a challenge of greenhouse gas regulations under the unmbrella of the Clean Air Act. The case being considered is actually looking at 4 different lawsuits that have been cosolidated into a single SCOTUS decision, so it could get complicated as it accounts for subtle diffrences in the cases. Or, the court could decide not to decide, since the original Obama-era regulations are no longer in play. But, some are waiting ot see whether the court uses this as a time to make sweeping changes in the how governmental regulations function. 

Some of the analyses (and guesses) about what will happen are pretty complicated, technical, and tough to follow for readers who don't already know about Chevron deference and nondelegation. Add to it some rhetoric (from either side) and the reading can be fraught. Even the WV v EPA Wikipedia page is getting lengthy, and the case hasn't been heard yet. But I thought Leslie Kaufman's recent update did a good job of introducing some of the pieces:

“There is a possibility that the court can write an opinion,” says Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, “that really reflects a core challenge to the fundamental basis of the regulatory state — for the ways in which our federal bureaucracy or federal agencies have evolved and operate.” In other words, if the Supreme Court applies the most conservative interpretation of the constitutional challenge, it could entirely knock out the system by which we protect air and water in the U.S. — not to mention scores of other federal laws.

Assuming that the oral arguments really happen, the news will be interesting to read the next day. Watchers will keep a particularly close eye on the comments and questions from Justice Gorsuch whose mother had a difficult time as EPA Administrator.

Oyez

In class we mentioned Oyez as a helpful resource on Supreme Court cases about takings. Among the details it provides about cases are the recordings of the oral arguments, which are relatively short. For instance, you can listen to the attorneys for both sides of Dolan v. City of Tigard spar with the justices. They ask a few practical questions about the proposed bike path, but they also ask big questions about the implications of the precedent they might be about to set.

SCOTUS on tape

As Supreme Court cases are argued, the oral arguments bring a little personality into the process. Oyez let's you listen to recordings of the oral arguments and hear those moments when the personalities come through. Like this moment from Kelo v New London when we were left wondering what those four words were.

"And just -- I would say that in this case, the essence of federalism is to let various courts make various decisions about what they consider an important public purpose. It may be different in Utah from the way it is in Connecticut, and it's different in Florida, and I don't think this Court should be having a new jurisprudence for this area and having two separate tests, and maybe having a test that even approaches the Nollan Dolan test where you certainly want to discourage people from taking these actions. And so it seems to me the four words I think that this Court should consider -- and I'm not going to tell you the four words since my red light is on. Thank you, Your Honor."

 Justive Kennedy asked the opposing attorney if he knew those four words, but he did not.

Development moratorium

The Wall Street Journal writes about a Southern boomtown, Lake Wylie, South Carolina, which recently issued a 16-month moratorium on new development. Is that legal? Seems like this is in line with the 2002 Supreme Court decision about the moratoria used by the Tahoe Regional Planning Agency.

How rapidly is development happening?

It isn’t clear whether a moratorium will have the intended effect. There are more than 3,000 homes and apartments approved for Lake Wylie that are in various stages of construction.

And the water/sewer bills are reportedly skyrocketing as they struggle to accommodate the rapid increase in demand.

Presumably the WSJ thinks this case is a harbinger of things to come. But which parts?

Property rights

Keeping an eye on Knick v. Scott this year. The Inquirer inquired. One analyst warns it might revive debate over Williamson County.

Top 25 Supreme Court cases for planners

Wisconsin APA posted a list of the Top 25 Supreme Court cases for planners (as suggested by one person).  As a fun twist, they marked the 6 cases on that list in which the American Planning Association filed amicus curiae (friend of the court) briefs.

Kelo video

This video visits Suzette Kelo 10 years after the original court case. It is interesting to hear her say that she has not returned to the Fort Trumbull neighborhood since she (and her house) left. That is remarkable considering how small New London is. Clearly the emotions are still strong. Note: the video is an advocacy video, so filter accordingly.



Duke's Law School presents a more explanatory video. It still interviews some key players. It also has a more academic discussion. The video incorporates some graphics I could not get for class.

The story behind Kelo

When we talk about Supreme Court cases in planning, it often seems like they are truly an unique local conflict that was so fiercely fought that the Supreme Court's involvement seemed inevitable. Afterwards, many decisions seem accepted as inevitable and unquestionable.

But reading about Kelo v. New London, we see that the way the case bubbled up and how the decision was received are not like that at all.

Ilya Somin is a Professor of Law at George Mason who blogs for the Washington Post on this topic. He wrote a series of posts last year when his new book on the case was released. One of the posts provides insight into how such an obscure case became a foundational decision on eminent domain and property rights. He followed up with a detailed post about the public and political response to the decision.

He also has blogged responses to comments by Donald Trump on eminent domain. First, when Trump told an interviewer that eminent domain "is not taking property." And a second time when, during a primary debate, Trump said that the property owner "gets a fortune."   Finally, you can watch a short news video about the Trump case.

Eminent Domain

Some quick links on eminent domain:

A new decision about the use of eminent domain at Margate.

A Stake in the Sand from the NY Times Sunday Magazine about 8-0 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection, written before the decision.

Eminent Domain in Atlantic City  (No comment)

An anti-eminent domain organization.

Eminent domain today

The “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.”

— Justice John Paul Stevens, Kelo v. City of New London (2005)

Think eminent domain disputes are a thing of the past?

In North Carolina a small town is using eminent domain to move ahead with a greenway project. One of the acquisitions will cost just $250.

In Iowa, a reservoir project has stirred up opposition with it eminent domain plans, but the courts say it is OK. Meanwhile the Iowa legislature is voting on whether to allow eminent domain for energy projects.

In family in Virginia Beach is suing their state DOT over land condemned for highway ramps: "I think they're bullies," Jim said. "They're out of control."

Nearby, when the City of Norfolk tried to take a building, the owners hung a banner protesting the condemnation. They thought it was free speech but the City thought it was a violation of local sign ordinances and ordered the sign taken down. Critics hope the sign case makes it to the Supreme Court.

ED in AC

The Piano Man of Atlantic City made a lot of news regarding his eminent domain case. We'll talk a little more about the Supreme Court's perspective today in class.

Stake in the Sand

Shortly before the Supreme Court issued its decision in Stop the Beach Renourishment v. Florida DEP, the NYTimes Sunday Magazine sent Andrew Rice down to Destin to talk to some of the impacted residents. Stake in the Sand is his look at the conflict without the knowledge of the resolution.

More SCOTUS news

While our only required reading on the Supreme Court cases is the Sunday Magazine story on the Florida case, you may want to peek at old news coverage of the case like this NY Times article. Plus, New Jersey has had its own version of this conflict with a recent case that made it to the New Jersey Supreme Court.


Finally, a few years ago I made a list of links to detailed information about most of the major takings cases.

Class reading

In 2010, the NY Times' Sunday magazine ran a piece by Andrew Rice called a Stake in the Sand.  It is a closer look at the Supreme Court case that was named, STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ET AL. 

We will be re-reading this NY Times magazine article for class.  


But you might also enjoy this old photo and news clip from Pruned blog.

Big day at SCOTUS for Rails to Rails?

Today is a big day at the Supreme Court for those who are tired of seeing underutilized railroad corridors converted in popular, public trail systems that encourage physical activity and connections with the environment.

The argument calendar says that today the Court will hear arguments in Marvin M. Brandt Revocable Trust v. United States. Acording to the SCOTUS Blog, the issue at hand will be "Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the underlying lands were patented into private ownership."

The Rails-to-Trails Conservancy says that the stakes are high. An adverse decision "could also threaten existing rail-trails across America that utilize federally-granted rights-of-way."

Old SCOTUS case in Florida

In a case of reliving past glories, I am encouraging our studio students to go back to this old NY Times Sunday Magazine piece on a case known as Stop the Beach Renourishment v. Florida. Since it was published before the decision was issued, it focused on the issues rather than the outcome. And you can see how it is going to come up again.

Building more dunes ain't easy

A privileged class of Shore homeowners, a NJ Supreme Court case and Governor Christie's policies are all contributing to ongoing conflicts over sand dune reconstruction at the Jersey Shore, just months after hurricane Sandy's devastation. NJ Spotlightgives a brief overview in a new article called, "What's the Going Price for a Dune on the Jersey Shore?"

NewsWorksNJ says it pits neighbor against neighbor.  Long Beach has posted a list of the names of homeowners fighting against dunes.

But these issues aren't terribly new. The NY Times had a piece on a fairly similar disagreement in Destin, Florida a few years ago. That unneighborly dispute required a US Supreme Court decision to resolve things. (It is worth noting that the details appear different on a few substantive points, so attorneys can probably fairly claim that the law is not completely clear on these disputes. Of course, the law is never completely clear, or the judicial system could downsize.)

UPDATE: The Star-Ledger has an update on the NJ Supreme Court's hearing.

Public safety vs. Private property rights

After Hurricane Sandy, there was a period of time during which New Jerseyans set aside political and personal differences to better their battered communities. But a story in the Star-Ledger suggests that is waning down in Toms River.

Shortly after the storm (11/18/12), the Star-Ledger's MaryAnn Spoto reported on a fairly clear correlation: areas with healthy coastal dune systems suffered limited damage while those with weak dunes experienced greater damage. Both scientists and politicians acknowledged this relationship, with Spoto offering this notable piece of evidence:

"If you look at the towns that have had engineered beaches, up and down the state, those are the towns whose damage was minimal," Gov. Chris Christie said during a visit to Monmouth County last week. "Other towns that didn’t, the damage was much greater. I think that’s a lesson for us as we move forward." 

 She also singled out one spot as being among the clearest for these issues:

By contrast, the Ortley Beach section of Toms River had the lowest and thinnest dunes — 10 to 12 feet high and less than 50 feet wide — and it sustained the most damage on the coast, Farrell said.

But now (1/5/12) Spoto reports that some Toms River property owners are keeping the municipality from building new post-storm dunes. With just 2 or 3 exceptions, the owners are refusing to sign over an easement along the shorefront, preventing the town from building the protective dunes. Not only does a delay leave open the possibility of new damage from a Nor'Easter, but it might also cause the town to miss its chance at Federal clean up funds.

The complaint, according to the article, isn't that this is an out-of control government taking their private property without justification. Instead, it seems focused on concerns about turning private beach into public. Spoto got this explanation:

Patricia Suriani, a member of one of the homeowners association boards that hasn’t signed, says a majority of the residents voted against giving the easement because they don’t want the private beach open to the public. She said the easement request, seeking the strip of property "in perpetuity," is vague and doesn’t give residents any assurance that they won’t be required to build public bathrooms or a boardwalk.

This isn't the first such case. A few years ago the NY Times Magazine ran a feature on the US Supreme Court case, STOP THE BEACH RENOURISHMENT, INC. v . FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. The story weighed the State's concerns about beach erosion and storm damage against the hypothetical potential for the public beach being used for hot dog carts and spring break parties.

Barry Chalofsky recently suggested that we start evaluating whether some beach communities should be very gradually depopulated. The next few months should bring more conflicts, but it will be especially interesting to see which way the public sentiment goes.

SCOTUS Reading

In 2010, the NY Times' Sunday magazine ran a piece by Andrew Rice called a Stake in the Sand.  It is a closer look at the Supreme Court case that was named, STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ET AL. 

We will be re-reading it for class.