The Death of the Facial Takings Claim
Last week, I reported a couple of recent appellate court opinions that grapple with the question of a "facial" takings claims -- neither of them, in my view, very satisfactorily. The problem, as I see it, is this: a regulatory takings claim turns on the impact of a government regulation on the plaintiff. But since it depends upon impacts, how can a plaintiff raise a facial claim? Well, after thinking it through a bit more, and talking to colleagues, I have come to...
CONTINUE READINGA Modest Proposal for Increasing Nuclear Safety
The N.Y. Times has a revealing, lengthy article about the NRC that raises disturbing questions about the agency's oversight of the industry. Here are three points that are especially disturbing: First, the NRC has weakened requirements for relicensing to the point where the process involves expensive red-tape but the result is a forgone conclusion. For instance, the agency abandoned a previous requirement that the reactor be in compliance with safety requirements at...
CONTINUE READINGWolf delisting rule challenged in federal court
Yesterday, Alliance for the Wild Rockies, Friends of the Clearwater and WildEarth Guardians filed a compliant in the federal district court of Montana challenging the wolf delisting rider. You can check out a press release from WildEarth Guardians here. My previous posts describe the wolf delisting rider and the past litigation on the wolf delisting. Why yesterday? Well, on May 5, the Department of Interior published the delisting rule in accordance with the rider. T...
CONTINUE READINGEvaluating the claim that future environmental regulations have already made California the nation’s worst place to do business
I'm reasonably sure that chiefexecutive.net's annual listing of "Best/Worst States for Business" isn't most people's go-to source for information comparing various states' business climates. Nonetheless, the website's annual survey just came out, and the Sacramento Bee is covering it as a story (with a promise of more coverage to come). California -- as usual -- came out last, and Texas has maintained its number-one ranking. “No one in his right mind would start ...
CONTINUE READINGWhat Is a “Facial” Takings Claim?
Interesting and frustrating new case out the 10th Circuit, Alto Eldorado Partners v. County of Santa Fe, which doesn't appear to have gotten coverage from Takings lawyers and scholars and probably should. The case involved a challenge to Santa Fe County's inclusionary zoning ordinance, and it carries potential important federalism issues; it also raises -- although then runs away from -- a question that federal courts have been skirting around the last few years: wha...
CONTINUE READINGNew Legal Planet iPhone/iPad app provides easy mobile access to blog
I know many of you wake up daily wondering whether there might ever be a way to bring Legal Planet directly to your iPhone or iPad, with features such as push notifications, easy scanning and scrolling of recent content, designation of unread and previously-read posts, saving of favorites, and easy emailing of posts to friends and colleagues. Now that the free Legal Planet app has arrived in the App Store, you need not wonder any longer! Here's the official descript...
CONTINUE READINGThe New Public Trust Climate Cases
Per the New York Times this morning, a group of environmental organizations called Our Children's Trust has filed a lawsuit against the state of California, arguing for protection of the atmosphere under the public trust doctrine (about which I blogged a couple of days ago). A few preliminary reactions after having read the complaint quickly: Not much of a surprise concerning the cause of action: public trust theories about atmospheric protection have been bouncing...
CONTINUE READINGParking, Infill, and Affordable Housing
The Infill Builders' parking bill that I blogged about this morning just passed unanimously out of the Assembly Local Government committee this afternoon, overcoming perhaps its biggest hurdle to ultimate passage. Although one would expect local governments to oppose a state bill that limits their ability to demand excessive parking for transit-oriented development, opposition to AB 710 has come from a much more unlikely source: affordable housing advocates. Testifying ...
CONTINUE READINGInfill Builders at the State Capitol
Part of my work with UC Berkeley and UCLA involves gathering business leaders to discuss opportunities presented by climate change policies. In the case of real estate development, the common refrain from sustainable developers seems to be to tell government to get out of their way and let them build more walkable, mixed-use communities around the state's major transit hubs. That was part of the message we heard back in March 2009 at our first gathering in the series...
CONTINUE READINGAnother victim of the budget deal: key US greenhouse gas data?
It was my wonderful law school professor Gary Blasi who first introduced me to the idea that "what gets measured, gets done." I'm thinking of him and reading this news in some mixture of awe (at our seeming collective ability to ignore problems) and anger (at same): The final fiscal year (FY) 2011 budget provides $95.4 million for the U.S. Energy Information Administration (EIA), a reduction of $15.2 million, or 14 percent, from the FY 2010 level. "The lower FY 201...
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