Longstanding Martins Beach Controversy May Well Capture Justices’ Attention
The U.S. Supreme Court’s 2018-19 Term is already shaping up as a big one for environmental law in general and the longstanding tension between private property rights and environmental regulation in particular. The Court has already agreed to hear and decide two cases next Term raising the latter set of issues: one involves the question …CONTINUE READING
Areas such as torts and property will face significant challenges
I’ve posted about how the Anthropocene will see major changes in how humans affect our planet, and how those changes will have major impacts on human society, triggering substantially larger interventions by the legal system in a wide range of individual behavior. In this post, I want to spin out some of the implications of …CONTINUE READING
Hardly anyone noticed a decision last June limiting the rights of property owners against regulators.
Murr v. Wisconsin was a sleeper case decided by the Supreme Court last June. But it deserves a lot more attention than it has gotten. As I discuss in a new paper, Murr was a major defeat for property rights advocates and a big win for land use planners and environmentalists. Murr has escaped much …CONTINUE READING
The Supreme Court rules on how to define a parcel of property under the Constitution
The Supreme Court ruled today on Murr v. Wisconsin, a takings case that could have potentially had a major effect on land use regulation. The Supreme Court has ruled that a “taking” of private property exists if the state prohibits all economically beneficial use of property. Naturally, lawyers have gleefully litigated the question of how …CONTINUE READING
Justices to Hear Oral Arguments in Three Major Environmental Cases This Week
The California Supreme Court currently has approximately twenty pending environmental cases on its docket. This week, the Court’s justices will hear oral arguments in three of the most important of those cases. Taken together, these looming decisions raise important issues concerning the California Environmental Quality Act (CEQA), federal preemption, climate change mitigation and adaptation, private …CONTINUE READING
Docket so far limited to a significant takings case, Murr v. Wisconsin
So far, the docket for the U.S. Supreme Court’s term beginning in October includes no significant statutory environmental case. It does include an important takings case that could limit or expand the land use powers of all levels of government to protect wetlands, endangered species habitat, and other ecologically sensitive parcels. Whether the Court ultimately …CONTINUE READING
Justices Deny Review of California Supreme Court Decision Upholding San Jose Measure
Advocates of the City of San Jose’s controversial inclusionary housing ordinance, which was upheld in a 2015 California Supreme Court decision, are breathing a sigh of relief this week. That’s because the U.S. Supreme Court has denied the California Building Industry Association’s petition for certiorari in the case. But the available evidence suggests that the High Court …CONTINUE READING
Litigation rates dropped by only a little even when the real estate market collapsed.
Takings litigation is a bit of a puzzle. You would expect the amount of litigation to go up and down depending on the situation in the real estate market. If there’s a lot of new construction, there are more opportunities for conflict between developers and regulators. And if prices are high, so are the economic stakes, …CONTINUE READING
“Who Are Those Guys?”
I don’t care what the law says. I want to know who the judge is. — Roy M. Cohn I basically agree with Jim’s and Dan’s assessments of the substantive provisions of the TPP when it comes to environmental issues. (I have real problems with the Intellectual Property provisions, but that is another matter). For …CONTINUE READING
Guess who invented the idea that property rights evolve with changing social values?
Today, evangelical Christians tend to be aligned with conservatives in defense of private property. But that was not always true. In the 19th and early 20th Centuries, evangelicals launched a major attack on property rights. As historian John Compton documents in a recent book, they also adopted the idea of the “living Constitution” to justify …CONTINUE READING