Environmental law

Subscribe to Environmental law via RSS

Recently, we requested crowdsourcing of this year’s “come to the ALI-CLE Eminent Domain Conference video.” Instead of doing the video ourselves, we asked folks to “please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required.”

Our friend and colleague, St. Louis’ Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about “Everything About Eminent Domain I Need To Know I Learned From Star Trek.” Which he gave in a Starfleet captain’s uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don’t agree that Paul has now raised the video bar. …

Continue Reading Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

IMG_20190719_102348

I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

…
Continue Reading Cases And Links From Today’s Eminent Domain And Pipelines Conference (Houston)

Here’s what we’re reading this Friday:

…
Continue Reading Friday Round-Up: California Inverse Condemnation, Lawprof Epstein Litigates Public Trust, Property In Ecology, And More

If you are going to be attending the ABA Annual Meeting in San Francisco next month, here are some of the CLE and other programs of interest to property, land use, and eminent domain types, sponsored by our Section, the State and Local Govt Law Section: 

Thursday, Aug. 8

  • Knick Overrules Williamson County: What Does it Mean for Eminent Domain (in person, or webinar)

    In June 2019, the Supreme Court overruled its Williamson County precedent, which required that property owners, as a practical matter, must bring their Fifth Amendment takings claims against state or local governments in state courts. The Court’s new decision, in Knick v. Township of Scott, allows them to bring their inverse condemnation claims directly in federal court. Their insights into this important decision and its ramifications will be discussed by panelists who pled both sides of this case. Moderator: Steven J. Eagle, Professor Emeritus,

…
Continue Reading Dirt Lawyer CLE At ABA Annual Meeting (San Francisco)

Legalalertknick

We’ve already set out our general thoughts about the Supreme Court’s decision in Knick v. Township of Scott in a series of posts on the case. But we haven’t yet noted what the case might mean on the ground in Hawaii, our home turf. 

In a client alert we did: Hawaii’s property owners now have many more options for fighting back against oppressive government regulation of property than they did last week: 

  • You can go straight to federal court to claim that a county ordinance or regulation has violated your Fifth Amendment rights, if the regulation allows the public to enter your land, or severely restricts your uses of your property. You no longer need to go to state court at all. You still may choose to do so—and there may be good reasons why you may want to consider state court—but you cannot be forced to.
  • There may

…
Continue Reading What The US Supreme Court’s Property Rights Decision Means For Hawaii’s Property Owners

Here’s the recording of last week’s Federalist Society teleforum on the issue “Is ‘Possess Now, Pay Later’ Constitutional in Private Pipeline Takings?” 
 
Stream it or download it here:
 

Here’s the summary of the podcast:

The U.S. Supreme Court will soon consider the third of several petitions for certiorari asking it to review a question which has split the lower federal courts: whether district courts have the power under the Federal Rules of Civil Procedure to issue preliminary injunctions in takings under the Natural Gas Act which allow private pipeline condemnors to obtain immediate possession of property, even though Congress has withheld the federal “quick take” power in the NGA.

The Third, Fourth, Ninth, and Eleventh Circuits have concluded that simply because Congress did not delegate to private pipeline condemnors the quick take authority—the power to obtain immediate title and possession of condemned property upon a deposit…

Continue Reading Podcast Now Available: Is “Possess Now, Pay Later” Constitutional in Private Pipeline Takings?

Here’s what we’re reading today:

  • New Ruling In Maui Water Case Still Doesn’t Resolve Old Dispute (Honolulu Civil Beat) – about the Hawaii Intermediate Court of Appeals’ recent unpublished memorandum opinion in a long-ongoing water law fight on Maui. The long and the short of it is the court held that whether a short-term license from the State to use water (month-to-month, max one-year as the statute requires) is “temporary” or not (these licenses have been renewed for 18 years to allow the administrative process to be completed) is a factual question that can be resolved by summary judgment. Court held no. In our view, these things operate much like preliminary injunctions, which although they are temporary in nature, can stretch out for quite a long time while the wheels of justice grind. Cert application to the Hawaii SCT coming, for sure. Any guesses on which way this will come

…
Continue Reading Thursday Round Up: Hawaii Water Law, “New” Property, The Edge Denied!

Here’s a case that’s pending in the New York Court of Appeals that has been briefed and is awaiting argument. 

In Natural Fuel Gas Supply Corp. v. Schueckler, No. 17-02021 (Nov. 9, 2018), the Appellate Division answered this question:

This appeal therefore presents a novel question of condemnation law: can a corporation involuntarily expropriate privately-owned land when the underlying public project cannot be lawfully constructed?

Slip op. at 1. 

The court stated it clearly: “We answer that question firmly in the negative.”

Like many projects, in order to be built this natural gas pipeline had a long and complex checklist. It needed approvals of FERC — a certificate of public convenience — under the Natural Gas Act. And certain approvals under the federal Clean Water Act. Which in turn meant it needed state enviro checkoffs, here a water quality certificate from a New York agency. It also needed to…

Continue Reading NY Court of Appeals Considering Whether A Pipeline Can Take Property For A Project That Can’t Legally Be Built

The details are yet to be posted on the web, but mark your calendars now for an upcoming (two weeks from today, on Friday, June 21, 2019) Federalist Society teleforum, produced by the Environmental and Property Rights Practice Group, about an issue that we’ve been following that is the subject of at least three recent cert petitions (two denied, one on the way): whether federal courts can issue preliminary injunctions in takings under the Natural Gas Act which allow private pipeline condemnors to obtain immediate possession of property, even though Congress has withheld the federal quick take power in the NGA.

Stay tuned for the details which will be posted soon. Our speakers will be Chris Johns (Texas) who is preparing the forthcoming petition, and Jeffrey Simmons (Wisconsin), who will present the condemnors’ viewpoint.  We’ll be moderating the program. 

Details on the way. Continue Reading Mark Your Calendars: Federalist Society Teleforum On Preliminary Injunctions In Natural Gas Act Takings: Is “Take Now, Pay Later” Unconstitutional? (Friday, June 21, 2019)