SECTION NEWS  

Condemnation Committee  

At the end of its 2005–06 Term, the U.S. Supreme Court decided a number of cases touching on inverse condemnation. Three cases involved the scope of the Clean Water Act (CWA) and one involved local government’s obligation to notify a property owner of an impending tax foreclosure sale.

Rapanos v. United States , 126 S. Ct. 2208 (2006), considered whether placing clean fill material on wetlands violated the CWA where the parcel was linked to traditional navigable waters only through several miles of drains and ditches, some of them possibly intermittent. The Court’s 4–1–4 plurality opinion by Justice Scalia found “navigable waters” to include only relatively permanent, standing or flowing bodies of water, which could not be intermittent, together with only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right. Justice Stevens, in dissent, argued that both proper deference to the agency administering the statute and prior judicial interpretation weighted for upholding the Corps of Engineers’ broader definition. Justice Kennedy, concurring in the decision to vacate and remand the case, argued against both the plurality and dissenting approach. He proposed as a standard a “significant nexus” between activities on the property at issue and protecting water quality of traditional navigable waters. Chief Justice Roberts’s concurring opinion decried the failure of the Corps of Engineers to revise its regulations after the Court ruled that there were limitations on the Corps’s expansive view of its authority in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). Rapanos was a joint decision with Carabell v. United States, a similar case having the additional element of an impervious berm between the wetland and traditionally navigable waters.

In a third Clean Water Act case, S.D. Warren Co. v. Maine Bd. of Envtl. Protection, 126 S. Ct. 1843 (2006), the Court held that water reintroduced into a river after being removed and run through a hydroelectric turbine was a “discharge” under the CWA, even with no new material introduced. This case has significance for the licensing of a dam used for power production under CWA § 401. Most uses of wetlands to which liability under the CWA attach are governed by section 402, which imposes permit requirements for a “discharge of any pollutant” into navigable waters. Courts adjudicating section 402 liability may have to make independent findings of “pollution” as well as “discharge.”

Jones v. Flowers, 126 S. Ct. 1708 (2006), holds that the Fourteenth Amendment’s Due Process Clause requires local government, if practicable, to take additional reasonable steps to attempt to provide notice to a property owner before selling the property at a tax sale when mailed notice of the sale is returned unclaimed. This decision hints that the Court might be disposed to insist on other procedural protections in the future for landowners subjected to condemnation.

Finally, the Supreme Court of Ohio recently added to state constitutional case law following the decision last summer in Kelo v. City of New London, 125 S. Ct. 2655 (2005). Kelo held that the condemnation of sound residential property for retransfer for private economic redevelopment did not violate the Public Use Clause of the Fifth Amendment of the U.S. Constitution, but the Court indicated that nothing in its ruling deterred states from formulating stricter requirements.

Ohio responded with a strong opinion, striking down a similar condemnation in Norwood v. Horney, Nos. 2005-0227 et al., 2006 WL 2096001 ( Ohio July 26, 2006). The court applied a standard of heightened scrutiny of statutes regulating eminent domain, holding that financial or economic benefit alone is insufficient to constitute a taking for the “public use” required for takings under the state constitution. Thus, condemnation based on “blight” in the form of “deteriorating” property was void for vagueness. Norwood also overturned the condemnation statute’s blanket prohibition on issuance of stays or injunctions against condemnation pending appellate review. The court found this to be an unconstitutional encroachment on the judiciary’s constitutional and inherent authority, violating separation of powers.

In other news, a number of citizen initiatives on the subject of condemnation await the November general election. In many cases those initiatives make other changes to a state’s rules of civil procedure or evidence code, or both, under the guise of “reforming” the result in the Supreme Court’s Kelo decision. Readers may check the National Conference of State Legislature’s Internet site at www.ncsl.org for an updated inventory of state legislative activity. The Condemnation Committee will offer a comparative analysis of those initiatives enacted and similar legislative enactments of interest at the Section’s Spring Meeting in San Juan, Puerto Rico (May 17–21, 2007). In Puerto Rico, the Committee plans to present a topic of interest (to be announced) to the local condemnation bar.

Darius Dynkowski of Troy, Michigan, is the Condemnation Committee’s Vice-Chair for Programs this year. Darius successfully argued the property owner’s cause in the Michigan Supreme Court’s Wayne County decision, striking down condemnation for private economic development. Mary-Lynn Pickel of the National Association of Home Builders in Washington, D.C., continues as Vice-Chair for Publications.

On August 4, the Section held its eighth successful joint program with the Section of Real Property, Probate and Trust Law at the ABA Annual Meeting in Honolulu. The program, “Federalism, Land Use, and the Environment Under the Roberts Court,” featured a panel presentation by Professor David Callies of the William S. Richardson School of Law of the University of Hawaii, Honolulu, Robert H. Freilich of Paul, Hastings, Janofsky & Walker LLP, Los Angeles, Reed Hopper of the Pacific Legal Foundation, Sacramento (who argued Rapanos v. United States in the Supreme Court for the landowner), and Professor Steven J. Eagle of George Mason University School of Law, Arlington, Virginia. The panelists discussed recent cases involving environmental regulations and zoning and the uncertain, but perhaps pragmatic, nature of the role of federalism likely to come from the Roberts Supreme Court.

—Steven J. Eagle, Committee Co-Chair, George Mason University, and
William J. Scheiderich, Committee Co-Chair, City of Beaverton, Oregon, Law Department  

Note

The article, The Role of the Board, Administration, Audit Committee, and Legal Counsel in Light of Post-Enron Culture and Sarbanes-Oxley Governance Standards, by Edgar H. Bittle and Martin Semple, which appeared in 29 St. & Loc. L. News 1 (Summer 2006), was reprinted from the December 2005 issue of Inquiry and Analysis, published by the National Association of School Boards, Council of School Attorneys. Reprinted with permission.

2005-06 Student Excellence Awards

Each year the Section of State and Local Government Law recognizes outstanding students working in the areas of land use law and local government law at the nation’s law schools. Each honoree is nominated by the dean of his or her law school for this recognition. The student honored receives a special award that includes a current Section publication and a certificate of recognition. The 2005–06 award recipients with their law schools are:

Seth Mosebey , Penn State, The Dickinson School of Law;
Mr. Shariq Siddiqui and Michael Montagano , Indiana University School of Law–Indianapolis;
Leopold Wetula , Cleveland State University, Cleveland-Marshall College of Law;
Jared Taylor , Tulane University, Tulane Law School;
April H. Hocutt , The University of Alabama School of Law;
Erica Lynne Holzman , Georgia State University College of Law;
Betsy Haws, Brigham Young University, J. Reuben Clark Law School;
Melanie Karkos , Quinnipiac University School of Law;
Adam H. Van Buskirk, Jon P. Thayer, and Natasha E. Phillip, Albany Law School;
Mary Pat O’Connor , Ohio Northern University, Pettit College of Law;
Ron Evan Peck , Rutgers Law School;
John Carter Grant , Wake Forest University School of Law; and
Juan C. Gonzalez and Allison Raggo, University of Connecticut School of Law.

Environmental Law Committee

The Environmental Law Committee recently formed an “Air Resources” Subcommittee. And the moment is fitting, as there have been exciting legal developments lately with respect to global warming, an issue on which state and local governments have been in the forefront in the United States. Almost weekly, new studies are publicized verifying that global warming is both real and really problematic.

In June, the Supreme Court agreed to review the D.C. Circuit’s decision in a case filed by several states and environmental groups against the U.S. Environmental Protection Agency (EPA) challenging the EPA’s refusal to regulate carbon dioxide under the Clean Air Act (Massachusetts v. EPA, Docket No. 05-1120). The D.C. Circuit sided with the EPA, with one judge finding that the plaintiffs lacked standing to challenge the EPA and another judge finding that the EPA had not abused its discretion in deciding not to regulate carbon dioxide. The third judge strongly dissented, memorably stating that “if global warming is not a matter of exceptional importance, then those words have no meaning.” The legal environmental community is of course anxious to see how the Court handles this one—it may provide a good indication of where the Court’s environmental jurisprudence is headed in the years to come. If nothing else, the Court’s willingness to hear the case implies recognition of the importance of the problem of global warming.

Perhaps, the most difficult aspect of regulating greenhouse gases in the United States is that it is likely to require a reassessment of our lifestyle habits and personal consumption levels. Towards this end, the EPA has an online calculator to help you figure out your individual greenhouse gas emissions at http://yosemite.epa.gov/oar/globalwarming.nsf/ content/ResourceCenterToolsGHGCalculator.html. In a similar vein, be sure to calculate your personal ecological “footprint” sometime at www.myfootprint.org.

Another key issue in air law concerns the vitality of the New Source Review (NSR) program under the Clean Air Act. The NSR program dates from 1977 and requires facilities to modernize air pollution controls when they modify equipment in a manner that increases emissions. While the NSR program has clearly prolonged the life of many old polluting plants, its enforcement has also been the source of many pollution control upgrades that have made the air cleaner. In May, the Supreme Court granted cert to review a Fourth Circuit case, Environmental Defense v. Duke Energy Corp. ( Docket No. 05-848), which limited the application of NSR to facility modifications that increase the maximum hourly emissions rate. This case will have important ramifications for several other large government enforcement cases against power companies alleging NSR violations.

One local government agency that has worked long and hard at the forefront of air pollution law is the South Coast Air Quality Management District (SCAQMD), which governs air quality in the Los Angeles area. Since the 1970s, the Los Angeles area has been and remains the only “extreme non-attainment area” in the country for ground-level ozone. I am conducting research on a “cap-and-trade” program that was established there in the early 1990s to reduce ozone levels, the Regional Clean Air Markets (RECLAIM) program. Along with a few other cap-and-trade programs in the country, RECLAIM offers valuable lessons about how to design future cap-and-trade programs to reduce greenhouse gas emissions.

Indeed, California and the Northeastern states are moving ahead with plans for such cap-and-trade programs. In August 2006, the California legislature passed the Global Warming Solutions Act (AB 32), which caps greenhouse gas emissions at 1990 levels by 2020 and allows the development of a cap-and-trade program. In the Northeast, seven states ( Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont) are moving forward to implement the Regional Greenhouse Gas Initiative (RGGI), a multi-state cap-and-trade program that regulates carbon dioxide emissions from power plants. The Final Model Rule was issued in August 2006. Kudos to these state and local air resource protection pioneers!

—Dr. Lesley K. McAllister, Chair, Air Resources Subcommittee,
Assistant Professor, University of San Diego School of Law