<h4><em>Under review</em></h4>
<p>Regulating how land is used and what activities may be conducted on land have a significant impact on human health and the environment. <a href="http://en.wikipedia.org/wiki/Land-use_planning&quot; target="_blank">Land use planning</a> can reduce urban sprawl, preserve green spaces, and limit soil erosion and contaminated surface water runoff. At the same time, placing restrictions on people’s use of their property is <a href="#" title="See Pacific Legal Foundation at pacificlegal.org/page.aspx?pid=269 and Federalist Society at fed-soc.org/publications/pgdetail/environmental-law-property-rights.">highly controversial</a>. As a result, <a href="http://www.eli.org/land-biodiversity/sustainable-use-land">land use law</a> is complex and contentious.</p>
<p>For a primer on land use law, watch or download materials from the ELI Summer School program <a href="http://www.eli.org/events/summer-school-land-use-and-law">Land Use and the Law</a>.</p>
<p>For example, in Oregon towns and metropolitan areas must implement <a href="http://www.oregonmetro.gov/index.cfm/go/by.web/id=33630&quot; target="_blank">urban growth boundaries</a> limiting sprawl and preserving rural lands. Some embrace land use planning as a central element in “<a href="http://www.smartgrowthamerica.org/what-is-smart-growth&quot; target="_blank">smart growth</a>,” which envisions efficient land use and building to minimize environmental impact and maximize social and economic benefit. For one approach to smart growth, see Chad Emerson,&nbsp;<a href="http://www.eli.org/eli-press-books/smartcode-solution-to-sprawl%252C-th… SmartCode Solution to Sprawl</a>. Jim McElfish explains the problems caused by urban sprawl in <a href="http://www.eli.org/research-report/ten-things-wrong-sprawl">The Ten Things Wrong with Sprawl</a>.</p>
<p>Land use is largely regulated by states and municipalities through <a href="#zoning">zoning</a> with very little role for the federal government, with the significant exceptions, perhaps, of managing <a href="http://www.eli.org/keywords/natural-resources">federal lands</a> and the impacts of the <a href="http://www.eli.org/keywords/wildlife">Endangered Species Act</a>. Courts are involved in land use, in part, through deciding cases on the <a href="#regulatory-takings">constitutional</a> reach of state and local land use regulation and through <a href="#private-nuisance-law">private nuisance</a> lawsuits.</p>
<p>One of the seminal books on the intersection of land use and environmental issues is Haar &amp; Wolf, <a href="http://www.eli.org/eli-press-books/land-use-planning-and-the-environmen… Use Planning and the Environment</a>. For a discussion of how land use planning can dramatically shape landscapes large and small, see James McElfish &amp; Rebecca Kihslinger, <a href="http://www.eli.org/eli-press-books/nature-friendly-land-use-practices-a… Friendly Land Use Practices at Multiple Scales</a>. For a discussion of encouraging smart growth through land use planning, see John Nolon, <a href="http://www.eli.org/eli-press-books/well-grounded%253A-using-local-land-… Grounded: Using Local Land Use Authority to Achieve Smart Growth</a>. For a discussion of how land use, among other tools, can protect biodiversity, see Robert McKinstry, <a href="http://www.eli.org/eli-press-books/biodiversity-conservation-handbook%2… Conservation Handbook</a>.</p>
<p>To see how ELI approaches land use, visit our <a href="http://www.eli.org/land-biodiversity/sustainable-use-land">Sustainable Use of Land</a> program page.</p>
<h3><a name="zoning"></a>Public Tools to Govern Land Use: Zoning</h3>
<p>In the United States, local governments primarily regulate land use. Most state legislatures have allocated land use authority to municipalities through <a href="http://en.wikipedia.org/wiki/Home_rule&quot; target="_blank">home rule</a> provisions or state <a href="http://www.law.cornell.edu/wex/zoning&quot; target="_blank">zoning</a> and enabling acts.</p>
<p>In the early twentieth century, local governments began systematically controlling local land use in the face of unregulated urbanization contaminating drinking water, blocking sunlight, and congesting urban centers. New York City adopted the nation’s first comprehensive ordinance in <a href="http://www.nyc.gov/html/dcp/html/zone/zonehis.shtml&quot; target="_blank">1916</a>, following the recommendation from its newly established planning commission. Local governments elsewhere caught on and by the mid-1920s, roughly <a href="#" title="Jay Wickersham, Legal Framework: The Laws of Sprawl and the Laws of Smart Growth, in URBAN SPRAWL: A COMPREHENSIVE REFERENCE GUIDE 26, 27 (David C. Soule ed., 2006).">400</a> local governments had adopted comprehensive zoning laws. However, land use controls were controversial because they limited the freedom of private landowners to utilize their land. The Supreme Court put an end to this debate in its landmark decision <em><a href="http://supreme.justia.com/us/272/365/case.html&quot; target="_blank">Village of Euclid v. Ambler Realty Co.</a></em> by holding land use controls can be constitutional.</p>
<p>Sara Bronin provides an interesting exploration of the need for state involvement with land use regulation in&nbsp;<a href="http://elr.info/news-analysis/40/10733/quiet-revolution-revived-sustain… Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States</a>.</p>
<h5>Land Use Planning and Commissions</h5>
<p>Ideally, local governments regulate land use decisions based upon a <a href="http://en.wikipedia.org/wiki/Comprehensive_planning&quot; target="_blank">comprehensive land use plan</a>--a vision for future land use. Professional planners design comprehensive plans and are heavily influenced by community participants. While designing the comprehensive plan, professional planners take into consideration numerous factors, including existing land uses, land use compatibility, environmental opportunities and constraints, agricultural use, neighborhoods, historic areas, downtown development, mixed uses, etc. Based on the comprehensive plan, the planning commission establishes a land use plan that maps zones to specify particular land uses permitted for specific areas.</p>
<p>For an example of a comprehensive land use plan, see the National Capital Region’s plan <a href="http://www.ncpc.gov/ncpc/Main%28T2%29/Planning%28Tr2%29/ComprehensivePl…; target="_blank">here</a>. For an overview of comprehensive plans, see <a href="http://landuse.osu.edu/PDF%20files/Comland.pdf&quot; target="_blank">here</a>. For an example of a planning commission and an explanation of its functions, see the <a href="http://www.theplanningcommission.org/aboutus&quot; target="_blank">Hillsborough County-City Planning Commission</a>.</p>
<p>In reality, planning commissions may undermine land use controls. Planning commissions often must allow the land use controls to be flexible to meet changing markets and demand for particular land uses. A developer seeking to build in particular zone must apply for a permit. If a developer seeks to construct a building for a use that is outside the intended zoning ordinance, the developer can seek a variance, special permit, or an amendment to the land use plan. Hence, local government may deviate from land use plans and the environmental controls and protections they may provide.</p>
<h5>Role of Courts</h5>
<p>In addition, a state judicial branch may limit local government’s ability to manage growth under the state constitution’s <a href="#" title="For a more detailed discussion of what substantive due process means, see www.law.cornell.edu/wex/due_process.">substantive due process clause</a>. Both federal and state substantive due process clauses, within each constitution, protect persons from overreaching state action, particularly from infringing upon protected rights including life, liberty, property, privacy, and family. Federal courts do not view zoning decisions as related to a protected right. Consequently, federal courts are generally more <a href="#" title="Brian W. Blaesser, Substantive Due Process Protection at the Outer Margins of Municipal Behavior, 3 WASH. U.J.L. &amp; POL’Y 583, 585 (2000), available at law.wustl.edu/journal/3/pg583to601.pdf.">deferential</a> to government bodies and refrain from reviewing land use cases.</p>
<p>Some state judicial branches, however, have taken a more active role in zoning decisions. For example, an Illinois court in <em><a href="http://www.leagle.com/xmlResult.aspx?xmldoc=19941369627NE2d742_11277.xm…; target="_blank">Twigg v. County of Will</a></em> held a zoning ordinance unconstitutional. In <em>Twigg</em>, the property owner wanted to house his extended family in multiple homes on his twenty-five acres of land; however, an agricultural zoning ordinance allowed only one house to be built on every ten acres. The Illinois court struck down the zoning ordinance as economically inefficient and because it created a hardship for the landowner without a distinct rationale. Other courts, including those in <a href="#" title="See Cormier v. County of San Luis Obispo, 161 Cal. App. 3d 850 (Cal. App.2d Dist. 1984).">California</a>, give substantial deference to local government zoning decisions.</p>
<h3><a name="regulatory-takings"></a>Regulatory Battlefield: Regulatory Takings</h3>
<p>In addition to local politics and state judicial concerns, several other challenges may obstruct a local government’s ability to implement its goals, including the Fifth Amendment’s <a href="#" title="For a general overview of takings clause jurisprudence, see law2.umkc.edu/faculty/projects/ftrials/conlaw/takings.htm.">takings clause</a>. The <a href="#" title="“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.“ From caselaw.lp.findlaw.com/data/constitution/amendment05/.">Fifth Amendment</a> of the U.S. Constitution prohibits the government from taking property without giving the owner fair compensation. Case law distinguishes between two types of takings law: (1) a physical taking in which the government literally takes or permanently occupies property for public use; and (2) a regulatory taking in which the government regulates the property to such an extent that it constitutes a taking.</p>
<p>The regulatory takings analysis in particular has troubled environmental law. What is found to constitute a regulatory taking depends on the particular facts and how they relate to the two tests developed by the United States Supreme Court: (1) <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0438_0104_ZO.ht…; target="_blank"><em>Penn Central</em></a> ad hoc balancing test and (2) the <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0505_1003_ZO.ht…; target="_blank"><em>Lucas</em></a> categorical taking test. The <a href="#" title="For an overview and interpretation of the Penn Central case, see John Echeverria, “Making Sense of Penn Central.”"><em>Penn Central</em> ad hoc balancing test</a> weighs three factors: the character of government action, the extent of economic impact, and the interference with investment-backed expectations. Case outcomes based on a <em>Penn Central</em> analysis, however as with any balancing test, are inherently unpredictable. In contrast, the <a href="#" title="For a discussion of the Lucas test, see J. David Breemer, “Of Nominal Value: The Impact of Tahoe-Sierra on Lucas and the Fundamental Right to Use Private Property.”"><em>Lucas</em> categorical taking test</a> is predictable. It states that if a regulation causes total economic loss for an entire property, the regulation constitutes a taking. The courts, however, predominantly follow the <em>Penn Central</em>ad hoc balancing test over the predictable categorical rule.</p>
<p>For a discussion of takings law in general, listen to and download materials from the ELI seminar <a href="http://www.eli.org/events/drawing-line-sand-florida-beach-case-asks-us-… a Line in the Sand? Florida Beach Case Asks U.S. Supreme Court to Recognize Novel Category of Property Takings</a>.</p>
<p>For in-depth analysis of the politically-charged regulatory takings area, see Ken Miller, <a href="http://elr.info/news-analysis/39/10457/penn-central-tomorrow-making-reg… Central for Tomorrow: Making Regulatory Takings Predictable</a>, and Alex Potapov, <a href="http://elr.info/news-analysis/39/10516/making-regulatory-takings-reform… Regulatory Takings Reform Work: The Lessons of Oregon’s Measure 37</a>.</p>
<p>The takings clause directly impacts a local government’s ability to include environmental initiatives into its land use planning. Local governments often do not have sufficient funding to implement environmental and sustainable development on private lands. Consequently, many local governments impose environmental conditions on permit applicants. For example, municipalities may require a particular amount of space be left between a proposed development and a nearby watershed. Courts may find this to be a taking. In <em><a href="http://www.law.cornell.edu/supct/html/93-518.ZO.html&quot; target="_blank">Dolan v. City of Tigard</a></em>, the Court struck down the City of Tigard’s attempt to require Dolan to dedicate a portion of his land to a public greenway. This may impact local governments’ ability to allocate water, plan for growth, and respond to environmental emergencies.</p>
<p>For a thorough discussion of <em>Dolan</em> and its impacts, see Philip Warburg and James McElfish, <a href="http://elr.info/news-analysis/24/10520/property-rights-and-responsibili… Rights and Responsibilities: Nuisance, Land Use Regulation, and Sustainable Use</a>.</p>
<h3><a name="environmental-justice-inclusionary-zoning"></a>Environmental Justice and Inclusionary Zoning</h3>
<p>Another challenge for local governments is the siting of locally unwanted land uses (LULUs), such as landfills, power plants, factories, highways, and prisons. As society depends upon each land use, LULUs must be sited somewhere. Many communities, however, generally oppose the siting of the LULUs in their neighborhood, a phenomenon often referred to as NIMBYism, “Not in My Backyard.” LULUs are often located in communities with low-income and minority populations.</p>
<p>ELI provides resources for environmental justice communities through its <a href="http://www.eli.org/environmental-governance/community-resource-center">… Resources Center</a>. Listen to and download materials from ELI seminars on environmental justice issues: <a href="http://www.eli.org/events/second-look-epas-new-ej-priorities">A Second Look at EPA’s New EJ Priorities</a> and <a href="http://www.eli.org/events/ej-epa-impacts-new-priorities">EJ at the EPA: Impact of the New Priorities</a>.</p>
<p>For a discussion of LULUs, see this <a href="http://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PREL100…; target="_blank">article</a> on a municipal perspective on dealing with LULUs.</p>
<p><a href="http://www.epa.gov/environmentaljustice/&quot; target="_blank">Environmental justice</a> advocates have envisioned land use controls as a mechanism to fairly and equitably distribute LULUs. They seek to achieve the equitable treatment and democratic participation of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws. However, advocates have limited avenues, let alone effective avenues, to advance environmental justice within the legal system. Efforts to use the <a href="#" title="No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. caselaw.lp.findlaw.com/data/constitution/amendment05/.">Due Process Clause</a>, the <a href="#" title="Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. caselaw.lp.findlaw.com/data/constitution/amendment14/.">Equal Protection Clause</a>, and <a href="#" title="See generally www.justice.gov/crt/about/cor/coord/titlevi.php.">Title VI of the 1964 Civil Rights Act</a> have borne little fruit. Agency hearings are similarly inadequate. While over 150 cases have been filed with the EPA <a href="http://www.epa.gov/ocr/&quot; target="_blank">Office of the Civil Rights</a>, most have been dismissed and none have been decided in favor of the complainant.</p>
<p>The law and policy around environmental justice is expertly discussed in Barry Hill, <a href="http://www.eli.org/eli-press-books/environmental-justice:-legal-theory-… Justice: Legal Theory and Practice, 3d ed</a>. The intersection of land use policy and environment justice is explored in Tony Arnold, <a href="http://elr.info/news-analysis/30/10395/land-use-regulation-and-environm… Use Regulation and Environmental Justice</a>.</p>
<p>Some state legislatures, such as Georgia, have promulgated <a href="http://www.lexisnexis.com/hottopics/gacode/&quot; target="_blank">“fair share” legislation</a> that requires locally unwanted land uses to be spread out, limiting the number of LULUs within a specified radius. Other states impose greater procedural requirements for an environmental impact statement, requiring the developer to disclose the specific location of the LULU, who lives there, and to assess the potential effects on the quality of life of those who will live there.&nbsp; New York City currently implements a <a href="http://www.nyc.gov/html/dcp/html/pub/fair.shtml&quot; target="_blank">hybrid fair share/impact statement approach</a> requiring the mayor to publish a list of new proposed LULUs and specify where they are to be located. Finally, the state may identify certain communities for which any or any further LULU siting would trigger special scrutiny by the planning commission.</p>
<h3><a name="private-nuisance-law"></a>Private Controls: Private Nuisance Law</h3>
<p>Private persons directly participate in advancing sustainable land use practices through several mechanisms, including <a href="#" title="A promise requiring or restricting land use by original landowners and their successors. A court may demand a breaching party to stop the activities causing the breach.">equitable servitudes</a>, <a href="#" title="A promise requiring or restricting land use by a landowner or by both the original landowners and their successors. A court may grant monetary relief for a breach of a covenant.">covenants</a>, and most importantly, <a href="#" title="A private nuisance is a civil wrong that affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public. From nuisances.uslegal.com/types-of-nuisances/private-nuisances/.">private nuisance law</a>. Private nuisance law is essentially when a property owner constrains his or her neighbor’s freedom to use their land in a particular manner. For example, a property owner may decide to construct a laboratory in the backyard of his home. If the property owner permits lab waste to enter the local watershed, however, his neighbors may bring an action against him to either prohibit the property owner from allowing waste to enter the watershed or for damages. While private nuisance law provides an environmental protection mechanism, its effectiveness is limited for two reasons: (1) courts do not uniformly apply nuisance law and (2) it is focused on pollution control rather than preventing pollution and advancing environmental restoration.</p>

Space Objects a Real Hazard to People, Property
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue

An environmental threat of very real proportions concerns celestial objects such as asteroids that hit the Earth—as everyone knows, one did in the dinosaurs. The same applies in a less dangerous but more frequent manner to unwanted “de-orbiting” of artificial satellites, and to the careless discarding of the boosters used to get them aloft.

As to the first, debris left over from the formation of the solar system pummels our planet on a constant basis—we call these asteroid or comet fragments meteors when they burn up in the atmosphere and meteorites if they hit the ground. As to human-made space debris that can fall to our planet’s surface, “More than 1,000 rocket bodies are estimated to have uncontrollably re-entered the atmosphere in the past 30 years,” according to New Scientist.

Last April, a piece of such artificial space debris, reportedly from a Chinese Long March rocket, hit near a village in India. Two years earlier a part of another Chinese rocket landed in a village in Ivory Coast. No one was harmed in either incident. And readers of a certain age will remember Skylab, the first space station, which fell from orbit in 1979, scattering debris over Western Australia and the Indian Ocean.

Skylab weighed 100 tons and would have caused real damage if it had landed in a populated area. The last few weeks of its existence were met with a worldwide response finding humor in the event—painting rooftop targets, for instance—as technicians desperately succeeded in using the huge satellite’s fuel reserves to wrest it to a safe demise.

But in fact had Skylab landed in Mombasa or Mumbai or Quito, the death toll would have been unimaginable. Because most satellites orbit near the equator and not high up, their debris when atmospheric drag forces them down can land on the largely poor countries of the tropical zone, raising a real environmental justice issue.

So far there have been no casualties from falling artificial space objects, but there are bound to be. Rocket launches have, well, skyrocketed, escalating to well over one hundred per year, and many loft multiple satellites. Scientists at University of British Columbia, New Scientist reports, calculate that the odds are one in ten of “casualties being caused by falling debris over the next decade.”

How can at-risk societies fight back? According to Ram Jakhu of McGill University in Montreal, the United Nations Liability Convention of 1972 comes into play here. The convention has only been used once in this manner, when Ottawa won $2.3 million from the Soviet Union after one of its satellites crashed in Canada in 1978. “I have no doubt there is going to be another serious incident,” according to Jakhu. “There’s a strong probability of hurting somebody or damage to property.”

There is a solution: an international agreement or arrangement such that rocket boosters and satellites contain sufficient surplus fuel—a rounding error in their total mission costs—so they can be brought down safely or be put into a benign orbit. These sort of “best practices” would be easy to put into place on a voluntary basis or by making the liability convention’s provisions dissuade slackers—sort of an astronomic Superfund. It’s not rocket science.

Chances are you won’t have a satellite fall on your head. But humans have in fact been injured by pieces of meteors entering Earth’s atmosphere or by the flash and shock waves they produce. There was the 2013 event in Siberia, mirroring a much more destructive meteorite that hit an uninhabited region in that wilderness in 1908. The recent event did hospitalize people and cause property damage. And it was caught on video by numerous observers.

According to an account on Space.com, the “meteor was a small asteroid—about the size of a six-story building—that broke up over the city of Chelyabinsk, Russia. . . . The blast was stronger than a nuclear explosion. . . . The shock wave it generated shattered glass and injured about 1,200 people.” But, as the Daily Beast reports, “Perhaps the most disconcerting thing about it aside from the damage and injuries it caused to the city was that it went largely undetected by astronomers and asteroid surveyors on the ground.”

In 2002 a small asteroid large enough to cause mass casualties should it hit Earth was given “about a 1 in 9,300 chance of an impact in 2049,” Wikipedia relates. Compare such a risk estimate, in which large swaths of humanity are seemingly at stake, with the response we give to the excess cancers expected at Superfund sites. The asteroid was later found to be benign, but it was a wakeup call to events that are low probability but high impact.

Three years later, Congress mandated that NASA monitor all Near Earth Objects of a dangerous size. In 2016, the Daily Beast notes, “NASA launched the Planetary Defense Coordination Office to identify and respond to any potential comet or asteroid impact endangering Earth.” But, “The task remains undone.”

Just in case, in September NASA impacted a refrigerator-size satellite into an asteroid as big as the Great Pyramid at Giza in an attempt to alter its path. “The target was Dimorphos, a rock orbiting another, much larger asteroid called Didymos,” according to the Washington Post. Scientists picked such a pair because it would be easy to evaluate the effect on the smaller space rock’s trajectory. And Dimorphos was not in danger of hitting Earth, nor could the collision produce a dangerous orbit.

—Stephen R. Dujack

Counting Sheep

A longstanding problem for solar farms has a surprisingly cute solution. “Sheep are the solar industry’s lawn mowers of choice,” writes Amrith Ramkumar in the Wall Street Journal. Farmers maintaining thousands of acres of panels need to contend with tall grasses, which, unabated, can obstruct sunlight. Enter the star of nursery rhymes and an unexpected hero of renewables. Hard-working flocks are now generating millions of dollars in annual revenue by helping to chomp on pesky weeds.

Many grazing animals were initially considered for the role. But some, like cows and horses, were too tall to tidy up grass underneath low-hanging panels. Others, like goats, strayed from the assignment—“chewing on wiring and climbing on equipment,” Ramkumar writes. “Sheep—docile, ravenous, and just the right height—easily smoked the field.”

The recent boom in solar has unexpectedly shot up demand for shepherds, “centuries after [their] breakout roles in the Bible,” Ramkumar writes. He reports that in just four short years, an estimated five thousand acres of solar fields employing sheep in the United States has now grown to tens of thousands, though there doesn’t appear to be an official head count yet.

Finding enough sheep has posed challenges. The Journal notes that while some advanced courses for solar grazing are offered through North Carolina State University and Cornell University, entry-level classes are scarce. Meanwhile, shepherds are already taking out loans to buy more sheep. One shepherd interviewed by Ramkumar spent $500,000 to purchase additional ewes to secure a contract with an energy farm.

The American Solar Grazing Association, a society that this editor is delighted to find exists, touts many other perks for the practice beyond clearing grass. “Solar grazing contributes dairy, meat, and wool to regional markets,” the group’s website notes. “Farm incomes are down, and solar grazing allows farmers to increase and diversify revenues without taking land out of food production.”

The sheep reap benefits too. “The vegetation at solar sites becomes a source of nutrition and a pasture” for these “resourceful foragers,” who “enjoy the shade of the solar panels on hot days, napping and grazing where humans would struggle to reach,” the association notes. “Some of the animals like being petted while they graze,” notes the Journal—adding up to a seemingly ideal workday for these high-in-demand flocks.

The phenomenon brings full circle the use of once arable farmland now occupied by solar panels. From up above, grazing sheep look like fluffy white clouds slowly moving under huge, sleek mirrors. Just like old times, shepherds use dogs to fend off predators and herd the sheep when necessary. They haul in food, pump water, and even set up enclosures for the sheep to sleep in. For those in the business of renewable energy and sheep, “It’s changing all of our lives,” says farmer Ely Valdez.

—Akielly Hu

Notice & Comment is the editors’ column and represents each writer’s views.

Greenhouse Carbon Dioxide Now Legally an “Air Pollutant”

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month [August], is language written specifically to address the Supreme Court’s justification for reining in the EPA, a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

That language, according to legal experts as well as the Democrats who worked it into the legislation, explicitly gives the EPA the authority to regulate greenhouse gases and to use its power to push the adoption of wind, solar, and other renewable energy sources.

—New York Times

In 2020 and 2021 alone, the world added 464 gigawatts of wind and solar power-generation capacity, which is more power than can be generated by all the nuclear plants operating in the world today.

—Farhad Manjoo in
the New York Times

Dodging Falling Rockets and Errant Minor Asteroids.

ELI Report
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue

Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.

“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”

The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.

“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.

Awardees were recognized for their individual achievements in six categories:

Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.

Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.

Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.

State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.

Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.

Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.

Ramsar Convention event presages 13th conference of parties

Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.

The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”

The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.

Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.

Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.

After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.

The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.

As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.

The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.

Aiding China in coming to grips with country’s excessive pollution

In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.

ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.

Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.

ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.

Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.

Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.

Field Notes: ELI on the scene in flooded Ohio, polluted Gulf

In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.

Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.

In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.

On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.

Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.

A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.

After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.

Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.

To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.

Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.

Latest flock of National Wetlands Awards winners.

In-Lieu Fee Mitigation Resources

ELI is a leader in research and capacity building in the area of in-lieu fee mitigation. This page contains resources from past ELI reports, webinars, and workshops on in-lieu fee mitigation. Check back for updates on upcoming webinars and reports. Click here to return to the Wetland's Program homepage.



Improving In-Lieu Fee Program Implementation Guides

Bernard Goldstein, M.D. - University of Cologne
University of Cologne
Current Issue

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