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Sept. 28, 2018 by John Echeverria

Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred.

The Knick case presents the opportunity for the Court to decide whether or not to embrace a longstanding goal of property advocates: to overturn the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, which channels most takings lawsuits arising from local zoning and other similar land use disputes into state court. In my view, Williamson County was correctly decided, its essential premises have been repeatedly affirmed by subsequent Supreme Court decisions, and the Court should reject the invitation in Knick to overturn its precedent.

The present case arose when Rose Mary Knick objected to an ordinance adopted by her Pennsylvania community requiring property owners to maintain and allow public access to private cemeteries located on rural properties. While …

Sept. 28, 2018 by Lisa Heinzerling
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Editor's note: You can read Professor Heinzerling's follow-up post, which analyzes the oral arguments in this case, on SCOTUSblog.

A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the Mobile River delta in Alabama. The frog breeds in ephemeral ponds – ponds that are wet for brief periods and then dry out completely – and spends the rest of its life in upland, open-canopy forests, living in burrows created by other animals. Today, the only known remaining population of the dusky gopher frog lives on a single pond in Mississippi.

In 2001, the U.S. Fish …

Sept. 27, 2018 by Daniel Farber
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Cross-posted from LegalPlanet.

The Trump administration is moving toward the view, long popular in industry, that when it regulates a pollutant, EPA can consider only the health impacts of that particular pollutant – even when the regulation will also reduce other harmful pollutants. This idea is especially important in climate change regulation because cutting carbon emissions almost always results in reductions of other pollutants like particulates that are dangerous to health. This may seem like a minor technical issue. But by ignoring the "co-benefits" of cutting carbon, the administration wants to justify drastic weakening of existing regulations. The administration's laser-like focus on the regulated pollutant is not consistent with the Clean Air Act, the legal basis for regulating carbon, or with general principles of law.

The courts have interpreted the Clean Air Act and other environmental statutes to require broad consideration of environmental impacts almost from the beginning …

Sept. 26, 2018 by Alice Kaswan
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Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission.

A recent study tells us that Hurricane Maria, which struck Puerto Rico in September 2017, may have caused as many as 4,600 deaths, far exceeding the initial official death toll of 64. In contrast, contemporaneous hurricanes in Texas and Florida appear to have caused far fewer deaths: 88 in Texas and 75 in Florida.

The differing outcomes bring home the importance of Sidney A. Shapiro and Robert R. M. Verchick’s recent article, which explores the way that underlying social vulnerability determines the impacts of major environmental transitions.

Just as a hurricane’s consequences differ dramatically depending on many socioeconomic factors—including infrastructure, access to medical care, and financial resources—the consequences of a shift to a green economy will differ based on the impacted …

Sept. 26, 2018 by Karen Sokol
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

The 450 Inupiat residents of Kivalina, a small village on the frozen tundra of Alaska at the edge of the Arctic Ocean, are among the first communities in the world to lose their ability to survive because of climate change. With temperature increases that double the global average, Alaska is one of the canaries in the coal mine of climate change. As a result, the Arctic’s ice has diminished by half over the last three decades, triggering a series of reactions that are transforming the environment. The people of Kivalina risk plunging into frigid waters whenever they use their snowmobiles — the only viable motorized means of transportation in the region. That, along with the fact that their principal source of food is wildlife whose habitats are being destroyed …

Sept. 26, 2018 by James Goodwin
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The confirmation hearing for Brett Kavanaugh offered Americans a contemporary reminder of what the Framers of the Constitution had in mind when it comes to protecting many of our fundamental rights and liberties. When it came to individual access to civil courts, a right guaranteed in the Seventh Amendment, they couldn't have been clearer. No less than James Madison put the value of that guarantee in stark terms: "Trial by jury in civil cases," he said, "is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." 

A CPR report out today, Civil Justice in the United States: How Citizen Access to the Courts Is Essential to a Fair Economy, details just how vital civil courts remain to promoting individual freedom, especially in the context of our modern economy, while also laying bare the effects of a …

Sept. 25, 2018 by Katie Tracy
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September 26 is Mesothelioma Awareness Day. The day is intended to share information about mesothelioma, an incurable cancer that forms on the linings of vital organs, typically the lungs, following asbestos exposure. While the prognosis for individuals diagnosed with the illness is grim, preventing it is very much possible. 

Scientific studies of asbestos conclude there is no safe level of exposure. Accordingly, the clear solution to preventing mesothelioma is to ensure people are never exposed to asbestos in any amount. Safer alternatives to asbestos exist, so banning it is not beyond reach. Despite this, the U.S. is not among roughly 50 nations that have done so. Although asbestos is no longer manufactured in the United States, it persists in previously installed insulation and is still being imported every year. 

According to the U.S. Geological Survey, nearly 100 percent of the asbestos imported into …

Sept. 25, 2018 by John Echeverria
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

On October 29, 2012, Hurricane Sandy made landfall on the New Jersey shore, claiming dozens of lives and destroying or damaging more than 300,000 homes. Properties along the shore were especially hard hit, with many oceanfront homes lifted off their foundations and tossed inland. All told, business losses were estimated at more than $30 billion. While no single storm event can be entirely attributed to climate change, Hurricane Sandy is precisely the kind of severe storm event that scientists predict will become more frequent in the era of climate change.

One issue raised by Hurricane Sandy — and the prospect of other, potentially even more severe storms in the future — is how to keep residents and businesses (and their occupants) out of harm’s way. This question in turn implicates …

Sept. 25, 2018 by Daniel Farber
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Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission.

Despite noisy political claims to the contrary, the weight of the evidence suggests that regulation has a small impact on the total number of jobs. Still, regulation is bound to have some effect on who has jobs, what kinds of jobs they have, and where those jobs can be found. How much should we care about that?

In a new article, Sidney A. Shapiro and Robert R. M. Verchick argue that environmentalists should devote far more attention to job loss. Their concern about job loss is well taken. Before responding to the issue, however, we need a better understanding of the extent of job loss due to regulation and a clearer map of the resulting types of harms.

To begin, we need to consider three kinds …

Sept. 24, 2018 by Sidney Shapiro, Robert Verchick
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Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission.

A green economy will generate thousands of new jobs — many more than will be lost to regulations on carbon pollution. But a green economy may also increase wealth inequality in some parts of the United States because people who lose jobs to carbon controls are not the same as those who will get them when the green economy blooms. For example, the kiln operator laid off from a cement plant in Virginia will probably not end up installing rooftop solar panels New Mexico. And based on the demographics of today's fossil fuel industry, job losses due to environmental regulations will likely affect whites, Hispanics, and African-Americans in significant numbers.

Nevertheless, when regulatory advocates have responded in the past to critics who thunder against "job-killing" regulation, they …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Sept. 28, 2018

Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

Sept. 28, 2018

Argument Preview: Justices to Consider Critical-Habitat Designation for Endangered Frog

Sept. 27, 2018

The Case for Co-Benefits

Sept. 26, 2018

Expanding Environmental Justice to Achieve a Just Transition

Sept. 26, 2018

New Report: A Fair Economy Requires Access to the Courts

Sept. 26, 2018

From Surviving to Thriving: Seeking Climate Justice in the Common Law

Sept. 25, 2018

From Surviving to Thriving: Coastal Storms, Private Property, and the Takings Issue