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Issue

Volume 43, Issue 2 — February 2013

Articles

Temporary Takings, Tahoe Sierra, and the Denominator Problem

by William W. Wade

Hundreds of briefs, decisions, and journal articles debating “how much loss is enough” should be sufficient proof that the Keystone Bituminous “taking fraction” provides poor guidance to decisionmaking in partial regulatory takings. The Penn Central court intended to measure the severity of economic impact by interference with distinct investment-backed expectations. Where lost income from use of the property is at stake, standard economics requires the denominator in the “taking fraction” to be the owner’s investment in the property. Instead, too many judicial decisions have obscured the clear economic language of Penn Central with musings about whether an owner’s expectations of regulatory prohibitions were reasonable or not. The Federal Circuit Court of Appeal’s 2007 Cienega X opinion invoked Tahoe Sierra’s temporal parcel to fatally confound the denominator problem. Cienega X proposed either real property value or earnings over the entire life of the property for the denominator. Neither is theoretically correct to evaluate severity of economic loss from proscribed use of property.

Judicial Oversight in the Comparative Context: Biodiversity Protection in the United States, Australia, and Canada

by Robert Shaffer

How effective are courts as policymaking institutions? Generally speaking, courts play a far larger role in American biodiversity law than they do in comparable Australian and Canadian statutory programs. As a result, studying endangered species protection offers a useful way to identify and isolate the policy impacts of judicial intervention. In the two cases I examine, the American system functioned at least as well as, and sometimes better than, the biodiversity programs in Australia and Canada. Contrary to most scholarship on the topic, lawsuits did not appear to slow the American policymaking process significantly; rather, litigation helped enforce important legal provisions and forced government officials to address critical shortcomings in their regulatory actions. At least in these cases, then, litigation acted as a productive and useful part of the policymaking process.

At the Confluence of the Clean Water Act and Prior Appropriation: The Challenge and Ways Forward

by Adam Schempp

In the western United States, the management of surface water quality and quantity is highly compartmentalized. This compartmentalization among and within state and federal authorities is not inherently objectionable. To the contrary, it likely is necessary. Yet, the degree of compartmentalization appears to have so divided management of this resource that damage has been done to both sides. Opportunities exist for cooperation, coordination, and a more holistic perspective on water management with little or even no change in law. Several western states have demonstrated the value of interagency coordination on general matters concerning water quality and quantity, as well as the benefits of case-specific consultations among those same parties.

Comment(s)

It’s Time to Put a Price Tag on the Environmental Impacts of Commodity Crop Agriculture

by Linda K. Breggin, Bruce Myers, and Meredith Wilensky

This Comment examines what is known about the costs associated with environmental degradation resulting from the production of commodity crops—i.e., row crops such as corn, soybeans, and wheat—that are grown on large swaths of land. Much has been written about the environmental impacts of contemporary agriculture, and the critical need for conservation practices, but far less is known about the cost of these impacts. Even less research has examined how those costs can be attributed to the various types of agricultural operations. This Comment provides a snapshot of the current state of the research and emphasizes the need for more cost data on impacts and for better public access to this information.

The Most Important Energy Developments of 2012: How Countries Are Planning for Independence Day

by Michael Cembalest

Every year, I sit down with Vaclav Smil from the University of Manitoba to discuss “the year in energy.” Vaclav is one of the world’s foremost experts on energy issues, and has written over 30 books and 300 papers on the subject. In this Comment, we walk through what Vaclav identified as the five notable energy developments of 2012: energy independence initiatives in the United States, Europe, and Japan; geopolitical implications of rising Chinese oil demand; and another rough year for the electric car.

Windmills, Tides, and Solar Besides: The European Way of Energy, Transportation, and Low-Carbon Emissions

by Steven Hill

With the world facing energy shortages, unstable prices, geopolitical struggles over energy supply, and dramatic climate changes that demand less fossil fuel consumption and reduced carbon emissions, Europeans have embarked on changes in their energy regime that over the course of the next half century will have as profound an effect on society as coal and steam power did in the 19th century. Meanwhile, the average American emits twice the carbon and uses twice the electricity of the average European, and each American generates about 45,000 pounds of carbon dioxide per year, twice as much as the average European or Japanese and many times more than someone living in China, India, or any other developing country. It is going to take a more serious and sustained effort for the United States to close the gap with Europe and other developed nations. If ever global leadership was needed, that time is now. And that leadership is being provided not by the United States, but by “old Europe.”

Why the United States Does Not Have a Renewable Energy Policy

by E. Donald Elliott

For good or ill, the United States seems more like a western European country every day, but the contrast could not be starker when it comes to renewable energy policy. Many countries in Europe get over one third—and some, over one-half—of their electricity from renewable sources such as wind and solar. Europeans across the political spectrum support government policies to promote renewal energy, but government support for renewable energy is deeply controversial in the United States. In their first presidential debate, Mitt Romney famously attacked Barack Obama for “picking losers” by spending $90 billion to promote green energy. Why doesn’t the United States have a renewable energy policy like those in Europe? The answers lie deep in our political structure and political culture, as well as our natural endowment of huge resources of fossil energy, including shale gas and unconventional oil.

Dialogue

Sustainable Cities: Harnessing Urbanization to Achieve Social and Environmental Goals

by Lynn Scarlett, Shlomo (Solly) Angel, Ken Cornelius, Colin Harrison, Julia Parzen, Carter H. Strickland Jr., Terry F. Yosie, and John Cruden

Cities have great advantages. They provide good jobs and are the most efficient form for delivery of services such as waste disposal, power, education, fire protection, and transportation, when compared with rural areas. City dwellers also use less energy than their counterparts in the countryside. Many experts envision that cities of the future will utilize more sustainable water, waste, energy, and transportation infrastructures. But what will drive the innovation needed to create these cities? And what role will government, industry, and NGOs play in bringing about this change? On November 8, 2012, the ELI—Miriam Hamilton Keare Policy Forum hosted a panel of experts to discuss the future of sustainable cities.