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“We are in danger of forgetting that a strong public desire to improve the public conditions is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change” Justice Holmes, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

On April 22, 2015 the Supreme Court heard oral arguments for the second time in Horne v. United States Department of Agriculture, Docket. No. 14-275.  This case will require the Supreme Court to further explain their recent regulatory takings jurisprudence post Lingle, and which takings test applies to the USDA marketing orders.

The Hornes, as raisin farmers, must abide by the USDA’s Raisin Marketing Order, a Depression Era regulation. Known as the “world’s most outdated” and “ridiculous” law, the Raisin Marketing Order (“RMO”) requires raisin handlers to set aside a predetermined amount of raisins (reserved) “for account of” the United States. These regulations were implemented to help stabilize the post-depression raisin market. It should be noted that 99.5% of the United States and 40% of the world’s raisins are grown in California. After nearly thirty years of operating Raisin Valley Farms in California, the Hornes created a hybrid producing and handling system, and refused to put aside part of their crop. Producers grow the raisins and then physically deliver their crops to handlers who stem, sort, clean, and set aside the reserve. The Secretary of Agriculture (USDA) fined the Hornes the equivalent market price for the raisins that they did not separate for account of the government (reserve). In defense of this fine, the Hornes claimed a governmental taking.

After years of administrative review, the Ninth Circuit was to decide whether the government’s taking of reserve raisins under the RMO resulted in a per se taking. However, the Ninth Circuit determined that the RMO cannot be analyzed under the physical per se taking analysis for the reserved raisins, but rather by the Nollan/Dolan  “essential nexus and rough proportionality” test. The Court subsequently held that the RMO did satisfy the test, and thus was not a regulatory taking under the Fifth Amendment.

In holding that Nollan/Dolan applied to the RMO, the Ninth Circuit extended this test to non-land use cases, thus creating a conflict with the Supreme Court’s takings precedence of the last forty years. In addition, the Ninth Circuit held that per se takings could only apply to real property, rather than both real and personal property, an issue not to be discussed here. The current issues presented to the Supreme Court are: (1) whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” Arkansas Game Fish Comm’n v. United States, 113 S. Ct. 511, 518 (2012) applies to only real property and not personal property; (2) whether the government may avoid the categorical duty to pay just compensation for the physical taking of property by reserving to the property owner a contingent interest in portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

What is missing entirely from this question is the most logical test, the Penn Central balancing test. It is difficult to argue a per se taking on the level of Loretto and Lucas due to their narrow construction. Loretto applies when there is a “permanent physical invasion” no matter how minor. Lucas applies when a regulation denies a property owner of all economically viable use of his or her land. Here, handlers set aside a predetermined percentage of raisins and the overage is released to the free market. The government has never required 100% of the raisins in any one year.

In finding that a per se analysis cannot be used, the Ninth Circuit used the Nollan/Dolan balancing test for land use forced exactions. However, this line of reasoning is clearly inappropriate for the Hornes case. The Supreme Court in Lingle stated both Nollan and Dolan involve Fifth Amendment takings challenges to adjudicative land use exactions, specifically, government demands that a landowner dedicate an easement to the permitting agency. This was further stated in Koontz, when the Court held that “[Nollan and Dolan] provide important protection against the misuse of the power of land use regulation.”

With three types of cases analyzed, the Penn Central balancing test remains. The Hornes intentionally did not argue Penn Central, most likely because the outcome would not be favorable to them. However, we know that when government regulations impact some strands of the “bundle of property rights”, and the owner retains important interests, the Penn Central balancing test can be used. The Penn Central balancing test requires the court to take into consideration the character of the governmental action, the economic impact of the regulation on the claimant, and the extent to which the regulation has interfered with a distinct investment backed expectation. Unfortunately for the Hornes, a ‘taking’ is more readily found when the interference with property can be characterized as a physical invasion by the government, rather than a public program that adjusts benefits and burdens to promote the common good.

The Hornes will have difficulty proving the RMO is so severe, if the program is meant to stabilize prices and help handlers receive a profit. The RMO mitigates the economic fluctuations on all involved, benefiting the Hornes and other handlers. As for the investment-backed expectations, the finding of a taking relies on the purchaser’s notice and awareness of the regulation. Although the notice is not an automatic bar, it plays a significant role in the analysis. Here, not only did the Hornes know about the RMO, they intentionally took it upon themselves to change the system and wait for a reaction while they were making a substantial profit over other handlers. Finally, when weighing the final Penn Central factor, the RMO has stabilized the market for the past seventy years. The RMO keeps the raisin handlers at a competitive, but fair level. Even if the Hornes were upset with this system, they could have sought out other administrative remedies.

It will be interesting to see what the Court decides. On one hand, the Justices will have to decide the issues on appeal, such as the application of per se takings on personal properties and whether Nollan/Dolan can apply to cases outside of land use exactions. On the other hand, the Court is making this decision on bad facts. The Hornes were not acting as a traditional handler, instead they created their own system. Should an almost eighty year old marketing order be rewritten just because of this family? It is not for the Court to determine, but rather Congress, who has the power to rewrite the statute.

On Wednesday April 1, 2015, Pace University Law School had the honor of hosting Robin Kundis Craig as the keynote speaker of the 21th Annual Lloyd K. Garrison Lecture on Environmental Law. Ms. Craig is a leading environmental law scholar and author of The Clean Water Act and the Constitution (Environmental Law Institute 2004), Environmental Law in Context (West 2005), and over fifty law review articles on water and coastal issues. After graduating with a Ph.D in English Literature from U.C. Santa Barbara, Ms. Craig attended Lewis & Clark School of Law, where she graduated summa cum laude and first in her class. She taught previously at Lewis & Clark School of Law; Western New England College School of Law; Indiana University-Indianapolis School of Law; and the Florida State University College of Law and is currently the William H. Leary professor of law at University of Utah S.J. Quinney College of Law where her teaching focuses on Property, Environmental Law, Ocean & Coastal Law, Administrative Law, Water Law, Toxic Torts, and Civil Procedure. Ms. Craig is also very active with the American Bar Association’s Section on Environment, Energy, and Resources, where she recently completed a three-year term on the Executive Council and where she currently serves as Co-Chair of the Water Resource Committee, on the Planning Committee for the 43rd Annual Spring Conference on Environmental Law, as Vice Chair for the 2014 Water Law Conference, and as the designated Chair of the 2015 Water Law Conference.

 

 

While her credentials are exceptional, her lecture was similarly impressive. Titled “Learning to Live with the Trickster: Narrating Climate Change and the Value of Resilience Thinking,” the lecture focused on how humans think and cope with change (in this case climate change) through the use of different narratives. Ms. Craig used the tale of the trickster, a mythological creature who is known for its intelligence as well as its ability to bring chaos through its mischievous and “trickster” ways. By using the trickster as the model, she explained that the current narratives about combating climate change need to change from ones in which humans try to control that which is uncertain, to narratives about learning to live with chaos—as many societies in ancient stories and folklore learned to do while living with the trickster.

 

Ms. Craig offered an informative historical look at U.S. Environmental Policy, which she called the “Humans as Controlling Engineers” narrative. This narrative focused on human’ desire to try and conquer nature or, as she so eloquently put it, humans’ belief that if we created the environmental problems, then we can just as easily fix them through technology and other controls. Yet, as Ms. Craig explained, this belief in the “Humans as Controlling Engineers” does not fit into the reality of how nature works, and many times the consequences of our actions are hard to predict due to complex feed back loops. Nature is not a system that tries to stabilize itself after change, but rather one that is continually in a state of motion and evolution.

 

The second half of the lecture focused on examining what she described as the four narratives that people currently fall into when it comes to discussing climate change. The first narrative that people fall into is denying that climate change is happening. The second narrative maintains that if climate change does exist, it’s not because of us. The third narrative involves people who believe that technology will be the solution to our problems, and the fourth concerns those who have overly accepted climate change and believe that it’s going to lead to the end of the world as we know it. All four narratives have their own drawbacks, but this is where the trickster model comes in. It gives us a way of dealing with and living with long-term climate change. Once humans can get to the point of accepting the unexpected and incorporating it into our lives, we can step outside our current narrative as “controlling engineers.”

 

The lecture concluded with a short question and answer session.  Many of the questions asked by professors concerned how Ms. Craig thought they should be talking about climate change with their students and how the students should seek to tackle this issue in the legal framework.  While such questions do not have easy answers, Ms. Craig stressed the importance of having a strong precautionary principle and the need for strengthening current laws that reduce stresses on our eco-systems. Most importantly, Ms. Craig pointed to the need for positivity that encourages people to understand that while we may not be able to control the impact of climate change the way we want, there are things we can do to help make our lives living with climate change better.

“A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole.”

-Matter of Wallach v. Town of Dryden

 

This blog post is a preview of the upcoming student case note, “Frack Attack: the Post-Dryden Battleground and How Local Governments Can Join the Anti-Fracking Fray.” The note examines the June 30, 2014 Court of Appeals of New York case Matter of Wallach v. Town of Dryden, which upheld a municipality’s home rule authority to use zoning to ban the controversial natural gas extraction process known as hydrofracking. This decision has far-reaching impacts for New York municipalities. In addition, the decision has been echoed by Governor Cuomo’s administration announcement that fracking is now banned in New York State as of December 17, 2014 because of the rampant concerns over possible health risks, ending the many years of debate over the previous moratorium.

 

A highly contentious process, fracking is essentially gas exploration that uses pressure, sand, and chemically infused water to create fissures in deep underground shale formations that allow oil and natural gas to flow. While conventional fracking—i.e. vertical drilling—is a relatively old technology that has been used for at least 60 years in the United States, horizontal fracking is a much newer technology. It relies on the ability to turn a downward-plodding drill bit as much as 90 degrees to continue drilling parallel to the Earth’s surface for thousands of feet. This added capacity has led to the recent explosion of natural gas production in the United States, in addition to numerous reports about fracking—and the estimated 827 trillion cubic feet of gas available—being the answer to our energy prayers.

 

However, there are numerous concerns surrounding the safety of this drilling technique, as many in the environmental community have jumpstarted the issue by accusing fracking of threatening our drinking water supplies. These trepidations more specifically include: massive water depletion and pollution; air pollution and dust; visual blight and noise; habit fragmentation; increased soil erosion and sedimentation; surges in truck traffic; overwhelming of local services and infrastructure such as waste treatment and disposal; and decreased property values. In addition, while less certain to occur, other situations may result from fracking, including possible natural gas leaks and escaped methane and volatile organic compounds, and increased ground-level ozone, which may exacerbate the effects of the climate change phenomenon. Arguably the most contested effect, drilling companies dispose of the massive amounts of wastewater (i.e. “flowback”) needed to frack via deep well injection: the deposit of toxic brine waste under extreme pressure in wells thousands of feet below the Earth’s surface. At best, underground deep well injection pollutes groundwater aquifers; at worst, science has currently linked the process to an increased risk of earthquakes, especially if the geology of the area is not conducive to fracking in general. As can be expected, there are also numerous positive impacts of fracking, including increased domestic revenue, employment opportunities, and other local short-term economic benefits.

 

While the process certainly has the potential to endanger our entire nation’s human health and environment, municipalities are at the forefront of the battle lines. Because geographical access to shale formations is mainly a local, rather than national or even state-wide issue, drilling companies naturally seek out individual municipalities—as well as individual landowners in said municipalities—in order to create drilling contracts.  Municipalities are the ones who will have to deal with any potential adverse effects of fracking. Moreover, municipalities themselves have to weigh these numerous deleterious effects with the potential short-term economic boom that will benefit their communities—a decision that has added implication for municipalities in need of economic revitalization. Balancing these concerns, it is clear that it is municipalities that have the ability to use their police power to mitigate adverse impacts to protect local health, safety, and welfare interests. Local governments can accomplish this through comprehensive planning, zoning, subdivision and site plan regulations, and negotiations as well as non-regulatory agreements with the private sector.

 

This is why the Dryden decision has far-reaching future impacts for the state of New York—even in the face of the statewide ban. If the trend of municipalities zoning out fracking, or at least regulating its effects on a local level, accelerates, local governments will possess the majority of power in the anti-fracking fight. Part of the battle for municipalities who attempt to regulate fracking is overcoming the presumption that the process must already be regulated at the federal level. One would assume that the numerous federal laws enacted to safeguard our environment would deal with such an obtrusive drilling process with myriad known adverse environmental and public health impacts. However, this presumption is entirely inaccurate. Fracking is only regulated marginally through six of the federal environmental laws: the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Resources and Conservation Recovery Act (RCRA), the Clean Air Act (CAA), the Comprehensive Environmental Response Compensation Act (CERCLA), the Toxic Substances Control Act (TSCA), and the Endangered Species Act (ESA).None of these acts put significant regulations on the fracking process. State regulation fares little better. States mainly focus on regulations at the drilling stage itself, such as requiring casing of the wells and blowout prevention equipment. This missing link in federal and statewide regulation represents an opportunity for municipalities to mitigate the fracking risks they find most bothersome, while still allowing for oil and gas drilling within their jurisdictions.

 

For example, New York municipalities wishing to regulate fracking can take note of best practice examples from around the country. This case note focuses on fracking ordinances from: Sante Fe County, New Mexico; Flower Mound, Texas; and Oklahoma City, Oklahoma. Comparisons among these regulatory ordinances are important for municipalities who may not wish to enact “mini-moratoria,” or when local governments attempt to entirely ban fracking within their jurisdiction. Dryden itself utilized an incompatible uses argument to achieve an overarching, blanket ban on fracking: the Town believed that this heavy industrial activity merely was not compatible with its rural nature. Other municipalities may wish to allow fracking, but mitigate specific risks within the area, such as concerns about groundwater contamination or potential nuisance claims. Therefore, looking at other examples from around the country will aid a municipality to choose what regulations are most important to its citizens to produce the safest drilling possible.

 

It is clear that New York’s current fracking ban could eventually be overturned with a regime change. Therefore, it is important that statewide local governments be proactive, take inventory of local thoughts on fracking, and institute any regulations they deem appropriate. Local governments in New York are fortunate to possess home rule authority—some other states are not as lucky. Following Dryden’s example and banning fracking entirely based upon this authority may not be the correct path for every local government, but having the ability to do so showcases how much power New York municipalities have in the fracking arena. By handcrafting their regulations to account for local concerns about the environment and the public health, safety, and general welfare of their inhabitants, New York municipalities can effectively choose what side of the post-Dryden fracking war they fall upon. It is merely up to these local governments to draw battle lines within their borders.

And just like that, the Competition is over!  The Semifinal Round began at nine o’clock, with nine teams competing to advance to the Competition’s Final Round.  Three teams argued in three rooms, and the winning team from each room advanced to the afternoon’s finals.  Semifinal Round attorney-judges had difficulty determining the winners in each room – the competition was fierce!  Nevertheless, three teams were chosen.

The University of Mississippi School of Law, Vermont Law School, and the University of Montana School of Law, listed in no particular order, each advanced to NELMCC 2015’s final round.  The announcement was made to the competitors midday, after each of the nine Semifinal Round teams sat for a catered three-course lunch.  The three finalists made an hour to prepare their final arguments.

On behalf of the NELMCC Board, we would, again, like to thank the three Final Round judges for dedicating their time to the Competition and joining us and the competitors in this experience.  We were fortunate to have the following judges:

  • The Honorable Patricia Wald, Retired Chief Judge of the U.S. Court of Appeals for the D.C. Circuit,
  • The Honorable Barbara Gunning, United States Environmental Protection Agency Administrative Law Judge, and
  • The Honorable Malachy E. Mannion, Judge for the United States District Court, Middle District of Pennsylvania (Pace Law alum!)

The final round began just after 1:30pm, in front of an audience of students, professors, and alumni, among others.  The Judicial Institute Lecture Hall provided a regal setting for the main event.  The problem, which was written by Pace’s own Professor Karl Coplan, involved primarily issues related to the Clean Water Act and the Resource and Conservation Recovery Act, although the Public Trust Doctrine, Fourth Amendment Searches and Seizures, and common law torts were also discussed.  Lead by the Honorable Patricia Wald, the bench was hot.  Competitors were confronted with complex questions, innovative hypotheticals, and almost no softballs.  After deliberating in the “robing room,” the Final Round Judges returned to the Lecture Hall and offered each of the competitors a combination of constructive criticism and great praise.

And without further ado…

The winner of the 2015 Jeffrey G. Miller Pace National Environmental Law Moot Court Competition is The University of Mississippi School of Law, John Juricich and Mary Margaret Roark.

Congratulations to the winner as well as the Final Round Teams! Congratulations, also, to each of the sixty-two teams that competed in this year’s competition! It truly was a success; the competitors impress us year after year!

For more information about this year’s competition, including the names of all the teams that competed, advanced to the Quarter and Semifinal rounds, as well as the best brief and best oralist awards, visit http://law.pace.edu/jeffrey-g-miller-pace-national-environmental-law-moot-court-competition.

 

–Diana Neeves, NELMCC Chair 2015

The excitement continued on day two of the Jeffrey G. Miller Pace National Environmental Law Moot Court Competition!  Each of the sixty-two teams competed in the third preliminary round Friday morning.  After the rounds, while the competitors and attorney-judges waited patiently, scores from each of the three preliminary rounds were compiled, and added to each of the team’s brief score to reach a final preliminary score for each of the sixty-two teams.  The teams with the top twenty-seven scores were selected to advance to the Quarter Final round.  At two o’clock, competitors and coaches gathered anxiously in the Tudor Room to hear if they would advance.  Following the announcements, the quarter-finalists immediately began preparations for the afternoon’s round.

 

The Quarter Final round went off without a hitch!  The twenty-seven teams were split into nine rooms, and one winning team emerged from each room.  By the end of the night, only nine semi-final teams remained!  On Saturday morning, three rooms of semi-finalists will argue in hopes of moving on to the Final Round of the Competition.

 

During Friday’s lunch hour, Professor-Emeritus Ann Powers hosted a Professor’s Workshop in the Faculty Lounge.  Lead by the esteemed Bob Perciasepe, the workshop was entitled “How Do We Get Back to a Rational National Debate on Climate Change?”  Over thirty professors from across the nation (one as far away as Hawaii) attended to discuss how to move past the political polarization in climate change conversations across the nation.

 

Also during the lunch hour, the American Bar Association Section of Environment, Energy, and Resources hosted a panel discussion for students interested in environmental law.  Entitled “So You Want to Be An Environmental Lawyer – How to Get There From Here,” five panelists explained various ways to get involved in the environmental legal community.  Alexandra Dapolito Dunn, the Executive Director and General Counsel of the Environmental Council of the States (ECOS) spoke of her experience in both the private and public sector.  Steve Miano, a partner and head of the environmental practice at Hangley Aronchick, Segal, Pudlin & Schiller in Philadelphia, discussed environmental law in private practice, while Sean Dixon, a staff attorney for the Hudson Riverkeeper, shared his experiences as a non-profit environmental attorney.  Lauren Fischer represented the governmental perspective, as assistant regional counsel in EPA Region 2.  The panel’s moderator, Seth Davis, is an adjunct professor for the Pace University School of Law and a partner at the Elias Group in Rye, New York.  Attorneys, student bailiffs, and student competitors attended the panel, making it an overwhelming success!  We are thankful to ABA SEER for their continued support of the Competition, and hope that we can make this panel a tradition in years to come.

 

At the evening’s award ceremony, each of the nine semi-final teams were awarded certificates and books, donated by the Environmental Law Institute.  Awards were also given to the two oralists with the best composite scores from the preliminary rounds.

 

Please check back tomorrow for the results of the final round, and the names of the best brief writers, quarterfinalists, and semifinalists!

- Diana Neeves, NELMCC Chair 2015

 

Yesterday marked the beginning of the 27th annual Jeffrey G. Miller Pace National Environmental Law Moot Competition.  Hosted by Pace Law School every February, the Competition is comprised of three preliminary rounds, one quarterfinal round, one semifinal round, and one final round.  After a cheerful Welcoming Ceremony conducted by Dean Yassky, Professor Czarnezki, and myself, sixty-two teams went on to compete in the first two preliminary rounds of the competition.  Despite the commotion, the rounds began on time and the competition flowed smoothly.  Over two hundred competitors showcased five months’ preparation, and attorney-judges from across the region were properly impressed!

 

The day concluded with a reception and awards ceremony.  Brief writers with the highest scores for each party were recognized (although the school names must remain anonymous until the competition is completed on Saturday afternoon).  After the ceremony many attorneys stuck around for the CLE Presentation on the future of water law, while the competitors returned to their hotels to prepare for the coming arguments.  It was an exciting day, and spirits are high as the competition continues!

 

Stay tuned for more updates!

- Diana Neeves, NELMCC Chair 2015

Keystone XL Update

Since the beginning of the New Year, and the months leading up to it, there were significant discussions surrounding the infamous Keystone Pipeline XL. The United States Congress has already approved a bill allowing the pipeline to be built for the transportation of heavy crude oil from the tar sands of Alberta to American oil refineries near the Gulf of Mexico. The heavily debated pipeline symbolizes the environmental movement and all that is bad about the extraction of oil. Many environmental groups have used the Keystone pipeline to stimulate the global climate change discussion. The pipeline places direct pressure on the White House to take a stance on American environmental and energy policy.

The debate over Keystone pipeline began in 2011. The proposed pipeline will be 1,179 miles long connecting the Alberta, Canada oil sands to Houston, Texas. There will be approximately 800,000 barrels of oil per day transported and sold on the world market. The pipeline will have minimal economic impact on America. Similarly, the pipeline will only create 42,000 temporary construction jobs and only a few dozen full-time jobs once completed. However, on a global scale, the sands extraction will have minimal effect on climate change.

Comments on the pipeline from the Obama administration were delayed until the final ruling of a recent case held in the Nebraska Supreme Court. In Thompson v. Heineman (January 9, 2015), the Nebraska Supreme Court reversed the lower court’s ruling that the governors’ decision to allow the Keystone XL pipeline to pass through the state was unconstitutional. Specifically, the lower court ruled the Nebraska legislature’s law, which allowed the governor to rule of the pipeline route instead of the Public Service Commission was unconstitutional. President Obama’s chief reason for stalling the six-year choice is now over.

How America responds to our energy policy and climate change will be top priorities for the next president. If the business continues as usual, the United States is on track to become the world’s largest oil and gas producer. Ironically, the pipeline debated comes to the forefront of political debate when oil futures are down to the lowest since 2009 ($50 per barrel). The lower price of oil futures offers less practical return on investments for TransCanada Corporation (the company who applied for the international pipeline construction permit) because tar sand extraction is expensive. To be profitable, oil futures need to be traded at $85 per barrel. As long as the price per barrel of oil remains low, the more unlikely the pipeline will actually undergo construction.

Regardless, people want more than to stop the pipeline. It’s a symbol of the twenty-first-century environmental vision because the Keystone Pipeline services notable unfriendly environmental oil extraction processes. The main argument is to stop Canada from mining the sands and without Keystone Canada would be unable to export the oil. The pipeline represents nineteenth-century energy policy that has led us to the current debate surrounding climate change. Although there is limited environmental and economic impact, the decisions embody our energy policy future. Our energy policy must be revamped and revised to embrace a clean energy focus. We need to build on an American energy infrastructure leaving global warming behind.

On December 5th, 2014, Pace Law School’s Land Use Law Center held its thirteenth annual Land Use and Sustainable Development Conference in the Judicial Institute on the Pace Law School campus in White Plains, New York. This conference gathers professionals and academics from throughout New York and the nation to discuss topics, trends, and issues in the field of land use law and sustainable development. Over 250 attorneys and planners attend this daylong event featuring speeches and panels. The topic of this year’s conference is Transitioning Communities, concentrating on how communities and municipalities can effectively begin and continue to transition into a more sustainable and green community. Transitioning a community requires planning for and providing adequate green-space and parks for residents and community members. To offer guidance on this topic, Pace’s Land Use Law Center arranged for the Commissioner of New York City’s Department of Parks and Recreation, Mitchell J. Silver, FAICP to present a keynote speech on the planning for parks.

 

Recently named Commissioner by Mayor de Blasio in May of 2014, Commissioner Silver, a New York City native, has immense knowledge and passion of planning for parks resulting from his long, successful history in planning. Prior to his position with New York City, Commissioner Silver was the President of the American Planning Association (APA) and has nearly 30 years and various awards in city planning. He also worked as the Chief Planning & Development Director and Planning Director for Raleigh, North Carolina; Planning Director for New York City’s Department of Planning; a principal of a New York City based Planning Firm; Town Manager in New Jersey; and Deputy Planning Director in Washington, DC. In his new position as Commissioner for NYC’s Department of Parks and Recreation, Commissioner Silver manages nearly 30,000 acres of New York City parks, playgrounds, beaches, marinas, recreation centers, wilderness areas, and various other lands.

 

In his keynote address at the Land Use Conference titled What’s Next, Commissioner Silver discussed and explained his plan to help improve and increase New York City’s parks and provide better park access for all of New York City’s residents and visitors. His plan includes three overarching goals: equity, resiliency, and technology.
Commissioner Silver’s first goal as Parks Commissioner is based on one of the Three E’s of Sustainability: equitability. His goal not only focuses on increasing the quantity of parks in New York City; but also focuses on increasing the quality of those parks. He strives to determine which areas need more parks and which parks need more improvement and funding. He believes that everyone should have fair and equal access to quality parks near their homes and work, but he understands the reality that some lower income areas may not be receiving the park access or funding to provide adequate parks.

 

In his first move towards improving the quality of NYC’s parks, Commissioner Silver looked at the previous funding of each park and found about 250 parks that received less than $250,000 in funding over the past 20 years. This helped indicate which parks were in the highest need of assistance and approval. So he concentrated on and visited each of those parks to determine which ones need the most improvement and assistance. Through this research, he was able to determine which parks were in need of simple, quick fixes as well as determine thirty-five park that’s were in the greatest need of funding and assistance. This hands-on, individualized approach allows for parks to get specific attention and improvements they need, making them more suitable and enjoyable for the communities they serve. But he doesn’t anticipate this being a one step process; he plans on continuous monitoring of New York City’s parks and the funding they receive in order to ensure equitable distribution of funds and services to ensure equal access to high-quality parks for all New York City residents.

 

His second goal for the New York City parks comes in the wake of Hurricane Sandy in the form of resiliency and sustainability. After Sandy, Commission Silver and the Parks Department now understand that there must be other factors considered in planning for and designing parks; one factor in particular is the discovery of surprise flood zones. These are areas that were not considered at-risk areas until the tragic storm hit. Commissioner Silver plans to prevent such disasters to parks by planning according to flood zones when designing parks. The Department of Parks and Recreation is now more conscious of potential risks that flooding may have on parks, which lead to the Department developing a manual for designing and planning parks in flood zones. This new manual, set to be released in 2015, will offer guidelines for various site types and recommend types of plants and structures that at-risk parks should include to withstand or prevent flooding in the event of similar storms.

 

In the address’ final section, Commissioner Silver discussed plans for improving and innovating the technological programs used to maintain and restore healthy NYC parks. These new technologies are aimed towards analyzing each of the NYC parks and determining everyone parks health. These new technologies will provide the department with information about which aspects of specific parks are in need of improvement and funding to better allocate time and money to parks to ensure healthy, sufficient parks throughout the city.

 

The department also plans to utilize technology that better engages the public in what Commissioner Silver deemed to be park “caretaking.” Community engagement in caretaking will increase the public’s participation in increasing and maintaining park beauty and health which will help the department determine aspects of specific parks that the public would like to see more time and money spent to protect. Input from the community on how parks are used and enjoyed will help create a more efficient and productive system of managing parks.

 

Through these three overarching goals, Commissioner Silver strives to improve the approach taken in planning, designing, and managing public spaces; also known as “placemaking.” Commissioner Silver thinks placemaking is a two-dimensional approach. This two-dimensions of the approach should provide park-goers with an experience of place and memory of place which will allow park-goers to sit back and enjoy the surroundings inside the park as well as take with them memorable experiences that will keep them coming back and appreciating the parks. Commissioner Silver strongly believes that all of these goals and strategies will lead New York City and its residents into a bright green future for generations to enjoy.

Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country is blessed.  It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans.”

            - President Richard Nixon’s Statement on Signing the Endangered Species Act

This blog is a preview of Reexamining What We Stand to Lose: A Look at Reinitiated Consultation Under the Endangered Species Act, one of the articles featured in PELR’s upcoming winter edition. As the title suggests, reinitiated consultation is a critical feature of the Endangered Species Act (ESA) and one that has been highly contested in recent years. Authors Catherine E. Kanatas and Maxwell C. Smith provide an in-depth look at the history of the ESA and potential impacts ongoing litigation could have on the legal basis, power, limits, and consequences of reinitiated consultation.

Reinitiated consultation plays a fundamental role within Congress’s statutory scheme, as the glue that holds the ESA’s protective scheme together. While the ESA generally prohibits any injury to an endangered species, Congress has authorized the U.S. Fish & Wildlife Service and Marine Fisheries Service (Service) to permit such injuries under certain circumstances. However, without reinitiated consultation, these preauthorized injuries or “takes” would create gaping leaks in Congress’s Ark, leaving little or no safety to endangered species. Despite its central role, Congress never provided for reinitiated consultation within the act itself. While the Service has acknowledged this silence, the courts generally do not raise this question of statutory authority.

In light of the ambiguities within the ESA and Congress’s clear intent for agencies to reinitiate consultation expressed within the legislative history of the act, this article concludes that the practice is legally supportable. Given the significance of reinitiated consultation, and the likelihood that it is here to stay, the article explores how courts have reviewed suits concerning reinitiated consultation. This discussion highlights potential challenges and best practices for Federal agencies and permitees.  With few exceptions, courts have taken a surprisingly deferential approach to reviewing agency decisions to reinitiate, or more commonly not reinitiate, consultation. Nonetheless, some courts have taken a much stricter approach when considering the triggers for reinitiated consultation and have frequently insisted that those triggers be as meaningful and as exact as possible.

To learn more about the Endangered Species Act and reinitiated consultation, be on the lookout for Catherine E. Kanatas and Maxwell C. Smith’s Reexamining What We Stand to Lose: A Look at Reinitiated Consultation Under the Endangered Species Act in PELR’s Winter Edition.

Pace Environmental Law Review published an article in its 2013 Online Companion Volume 3 Issue 3 titled The Missing Link: U.S. Regulation of Consumer Cosmetic Products to Protect Human Health and the Environment by Valerie J. Watnick.  This article gave light to the inadequate federal regulations regulating the toxic and potentially carcinogenic substances found in cosmetic products we use everyday.   This article made me double check my lotions and shampoos to make sure my products did not contain any of the chemical substances mentioned in the article.  One of the article’s observations was the public’s false sense of safety from buying a product that is federally regulated.  After finding one of the toxic substances in my lotion, that false sense of safety has definitely been recognized.

The main issues found within this article were the U.S. Food and Drug Administration’s (FDA) strong anti-precautionary approach policy and their lack of recall authority.  There are gaping loopholes under the Federal Food, Drug, and Cosmetic Act to allow industries to hide toxic substances under proprietary interests. Currently, companies can hide certain ingredients under general terms of fragrances to protect trade secrets. Under U.S. regulations, products are assumed safe until data provides otherwise.  Other major concerns raised in this article were the lack of regulations of endocrine disrupting chemicals found in 80,000 chemicals used in cosmetic products and the lack of regulations of nanomaterials.  Nanomaterials have been found potentially hazardous to health because of the size of the particles, which brings the risk of inhalation or movement through the skin.  Furthermore, there is a need for different regulations for products used on children because children are more susceptible to environmental harms and toxins.  The article continued to compare the United States’ regulations of cosmetics with Europe, Canada, and California.

Europe, Canada, and California take the precautionary approach dealing with toxic substances in cosmetics.  European regulations require an assessment of the safety of the product prepared through a product safety report before marketing. Endocrine disrupting chemicals and nanomaterials can be added to a list of prohibited ingredients for products as they are identified. Furthermore, regulators can recall products that do not comply with safety regulations.  Canadian regulations allow regulators to request evidence of the product’s safety. Regulators can stop the sales of the product until the information is provided.  California requires products to have warnings on them if they contain an ingredient that is on the hazardous chemical list.  A list of chemicals known or suspected to cause cancer, birth defects, or reproductive harm are available on a public database.

The article concludes with a discussion on the new legislation pending in the House of Representatives that will have stricter regulations for cosmetic products. The Safe Cosmetics and Personal Care Products Act of 2013 would abolish the loophole to hide toxic ingredients under trade secrets.  Higher safety standards would be implemented and the FDA would have authority to recall products.  However, there has been no progress or movement of the bill as of today.

This article was enlightening and informative of the lack of regulations in the U.S. for cosmetic and personal care products. Moving forward, I hope our Congress can move along the Safe Cosmetics and Personal Care Products Act to ensure the safety of the American people and to shift the paradigm to a precautionary approach when it comes to products that families and individuals use everyday.

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