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Volume 39, Issue 6 — June 2009


Annual Review of Chinese Environmental Law Developments: 2008

by Mingqing You

Editors' Summary

In 2008, China continued its environmental development goals outlined in the Eleventh Five-Year Plan passed in 2006. This annual review surveys the major developments in Chinese environmental law and policy in the past year. The Article covers developments in international environmental law, energy conservation, enforcement mechanisms, and the environmental impacts of major events and incidents in China in the past year.

Making Regulatory Takings Reform Work: The Lessons of Oregon's Measure 37

by Alex Potapov

Editors' Summary

Oregon's Measure 37 was an audacious attempt to create an expansive regulatory takings regime. Contrary to the hopes of its supporters and the fears of its opponents, however, it ultimately failed to provide any significant relief to property owners. The difficulties the Measure encountered can be traced to two primary causes: poor drafting and the hostile attitude of government officials. While these problems are likely to cause difficulties for any regulatory takings initiative, they are not necessarily insurmountable. It is also possible for a regulatory takings initiative to succeed in another way--by forcing the state government to take the problem of excessive regulation seriously. In this respect, Measure 37 has arguably been a success.

The Sustainable Farm Bill: A Proposal for Permanent Environmental Change

by William S. Eubanks II

Editors' Summary

A thorough analysis of the U.S. Farm Bill highlights the grave implications of buttressing our nation's industrial agricultural system with ever-larger subsidies. By encouraging large-scale, monoculture megafarms, a subsidized industrial agricultural system leads to severe environmental consequences such as water pollution from fertilizer and pesticide runoff, soil erosion, and effects on wildlife and biodiversity, such as fragmented habitats and species decline. To combat these trends and slow or reverse environmental degradation caused by industrial farming, Farm Bill reform discussions should be recentered on subsidies to scale up sustainable farming.

Tractors Versus Bulldozers: Integrating Growth Management and Ecosystem Services to Conserve Agriculture

by Jacob T. Cremer

Editors' Summary

Many policies aimed at conserving agriculture have failed because they are not comprehensive enough. A successful program should seek to maintain agricultural viability, preserve ecosystem services, and manage development into desired areas. Growth management, the interdisciplinary expansion of land use planning, provides an institutional structure for this comprehensive solution. With its unparalleled natural resources, a strong agricultural industry, and one of the strongest growth management systems in the nation, Florida provides a perfect laboratory for integrating these concepts. The Rural Lands Stewardship Act and the Florida Ranchlands Environmental Services Project, used as case studies, show how progress is being made to integrate growth management and ecosystem services to conserve agriculture.


Putting the Green in Green Card: An Immigration Policy for an Ailing Economy and a Sustainable Planet

by David S. Rugendorf

I. A "Green Magnet" to Incubate Solutions for a Green Planet

In almost every policy statement made on the subject while a candidate, president-elect and now President Barack Obama has paired the idea of long-term economic recovery with an ambitious, concerted effort toward national development of a new green-tech infrastructure. This theme was present in the recent debate on his economic stimulus plan; it has also entered the discussion on his budget, on tax policy, and as a part of the ongoing debate on the future of the domestic automobile industry. The new Administration and its allies envision a future where the seemingly ever-expanding and deepening crater that is the rampant unemployment crisis is filled in with bulldozer loads of new green jobs, new tech jobs, and new green tech jobs, in the most startling transformation of the national work force in generations. It is in many ways a big, bold gamble--one that the new Administration can take right now because of the president's currently high popularity level, his party's control of the U.S. Congress, and the demands of an electorate increasingly nervous about making it to the next paycheck. In this Article, I make the case that if this is the way out of the bleak present, to get from here to there our leaders will have to act not only fast but perhaps also counterintuitively and in a way not likely to be popular: that is, in order to create more American jobs, we will have to open up our job markets to foreign talent.


Penn Central for Tomorrow: Making Regulatory Takings Predictable

by Kenneth Miller

In 1978, after more than 50 years of silence on regulatory takings, the U.S. Supreme Court decided Penn Central Transportation Co. v. City of New York. Penn Central has since been referred to as the "polestar" of regulatory takings jurisprudence;2 however, no clear method of applying the multi-part ad hoc factual analysis of Penn Central has emerged. The Penn Central analysis has instead created confusion in the field with case law being anything but "unified."

In the years following Penn Central, the Supreme Court adopted a number of per se rules and bright-line tests in an attempt to clarify the field of regulatory takings. Toward the end of the era of Chief Justice William H. Rehnquist, however, the Supreme Court began to stray from these rules, abrogating and confusing some and entirely doing away with others. Confusion became so marked that commentators described regulatory takings as "muddled," and "one of the most doctrinally confused areas of constitutional law."

In 2005, the Supreme Court decided Lingle v. Chevron U.S.A., Inc. The decision clarified which per se rules the Court recognized, and reiterated that the Penn Central ad hoc factual inquiry was the controlling test for regulatory takings. Although Lingle shed light on regulatory takings' per se rules, the case did not clarify the basic Penn Central test. Thus, although Lingle clarified which test applies, the actual application remains clouded.

Making Sense of Penn Central

by John D. Echeverria

"[W]e have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely upon the particular circumstances [in that] case." --Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978).

"[A] 'totality of the circumstances' analysis masks intellectual bankruptcy." --Thomas Merrill, "The Economics of Public Use," 72 Cornell L. Rev. 61, 92 (1986).


In Penn Central Transportation Co. v. City of New York, the U.S. Supreme Court famously observed that it had been "unable to develop any 'set formula' for determining when 'justice and fairness' require" payment under the Takings Clause, and that it was therefore compelled to rely on "essentially ad hoc, factual inquiries." In an apparent effort to begin to give some content to regulatory takings analysis, the Court identified three factors with "particular significance" in a takings case: (1) the "economic impact" of the government action, (2) the extent to which the action "interferes with distinct investment-backed expectations," and (3) the "character" of the action. Yet, over the following twenty-five years, the Court has provided little guidance on the meaning and proper application of these three factors, perpetuating the essentially ad hoc approach to takings analysis and contributing to the widespread view that regulatory takings is an especially confused field of law. The Court's failure to come to grips with the meaning of Penn Central is especially striking in view of the substantial progress the Court has made recently in resolving other questions about regulatory takings doctrine. The next "big thing"--perhaps the last big thing --in regulatory takings law will be resolving the meaning of the Penn Central factors.