Environmental law

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The Natural Resources Section of the Hawaii State Bar Association has kindly asked me to speak to its members at their monthly lunch meeting, next Tuesday, November 1, 2011, from noon to 1:00 p.m. at the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street.

I’ll be discussing the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

The issue now before the Court is whether the Ninth Circuit correctly concluded that property owners who contested the EPA’s Clean Water Act jurisdiction could do so only in the course of an EPA enforcement action, and could not seek immediate judicial review of whether their property was even subject to the EPA’s authority. Sackett v. EPA, 622…

Continue Reading Upcoming Hawaii State Bar Association Presentation: Sackett v. EPA – Immediate Judicial Review Or Death By A Thousand Days?

Yosemite_conference Here are the links to the cases and other items discussed today at the session Regulatory Takings – Looking Back and Looking Forward at the Cal State Bar’s Environmental Law Section’s Environmental Law Conference at Yosemite.

These cases are also in your written materials.

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Continue Reading Links From “Regulatory Takings: Looking Back And Looking Forward” (Cal. State Bar Yosemite Conference)

Yosemite_conference One conference down, one to go.

We’re on the way back from the Brigham-Kanner Property Rights Conference in Beijing, and on our way to the California State Bar Environmental Law Section’s annual conference at Yosemite N.P., which begins later this week. More information about the conference here.

Along with U.C. Berkeley law professor Joseph Sax and Deputy California Attorney General Daniel L. Siegel, I will be speaking about “Regulatory Takings: Looking Back and Looking Forward.” E. Clement Shute will moderate the panel discussion.

We will be discussing the seminal regulatory takings cases from the past 20 years. “The panelists, who have been involved in several of the most significant takings cases since even before the founding of the annual Yosemite Environmental Law Conference twenty years ago, will highlight key decisions, offer their views on the evolution of takings law, and discuss cutting-edge issues raised by more recent…

Continue Reading California Bar’s Yosemite Conference: “Regulatory Takings: Looking Back and Looking Forward”

Climatechangemongraphpage

“There is strong consensus in the international scientific community that climate change is occurring and that greenhouse gas emissions from human activities contribute to climate change.”

So begins Climate Change and Regulatory Takings in Coastal Hawaii, a monograph by Douglas Codiga, Dennis Hwang, and Chris Delaunay, published by the University of Hawaii Sea Grant College Program’s Center for Island Climate Adaptation and Policy. 

We’re not entering into the debate about whether global warming/climate change is or isn’t happening. But the one certain thing is that every regulatory entity from the U.N. on down to your local neighborhood board believes it is real, and seems to want to do something about it. Thus, the question is how property owners may be affected by those actions, and what they can do in response. This report doesn’t really resolve anything, but it does establish the framework and makes some recommenations. From…

Continue Reading Climate Change And Regulatory Takings In Coastal Hawaii

12.WATHIWe’ve just finalized the agenda and faculty for the Hawaii Water Law conference, to be held in Honolulu on January 11, 2012. I am the planning co-chair along with Jesse Souki, Director of the State of Hawaii Office of Planning.

In addition to Jesse and me, we’ve assembled a diverse and talented faculty: UH lawprof David Callies will speak with Elijah Yip (Cades) on the latest developments in water law and public trust litigation. State Water Commissioner Lawrence Miike will update us on the latest goings-on at the Commission. My Damon Key partner Greg Kugle is speaking with Leo Asuncion, the Manager of the Coastal Zone Management Program at the State Office of Planning on coastal issues.

After lunch, we have a special guest, Ed Thomas (a lawyer and President of the National Hazard Mitigation Association, and a nationaly known expert in floodplain management and disaster…

Continue Reading Mark Your Calendars: Hawaii Water Law Conference (Jan. 11, 2012)

Yes, you read that right.

Yesterday, we posted most of the amici briefs in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the EPA’s assertion that a portion of their land are “wetlands.” But we saved one for a separate post, because it was worth noting on its own. The State of Hawaii has joined eight other states and signed onto the amici brief authored by Alaska, and this brief has a distinct property rights flavor to it.

As the Alaska Governor’s press release (“Alaska Files Brief Supporting Property Rights”) notes, the signatories are “supporting the right of property owners to have access to the courts for meaningful judicial review of arbitrary federal compliance orders.” As regular readers of this blog surely must know, the Hawaii government isn’t exactly known as being property rights friendly. And the other…

Continue Reading State Of Hawaii To SCOTUS: Protect Property Rights From “Overreaching Federal Regulation”

Last week, the petitioners filed their merits brief in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the EPA’s assertion that a portion of their land are “wetlands.”

A multitude of amicus briefs have been filed to support the Sackett’s arguments. We haven’t had the time to review each brief yet, but here they are for your review:

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Continue Reading Amicus Briefs In Sackett v. EPA: Judicial Review Of A Claim Of Regulatory Jurisdiction

What is a property owner to do when faced with a regulatory agency asserting that its permission must be obtained before the property can be used, when the property owner believes that the agency does not have authority over her land?

According to the agency, the property owner has two choices: she can either file an application under protest for a permit that she doesn’t think she needs, or she can go ahead without a permit and take the risk that she is wrong and will end up on the wrong end of an enforcement action.

How about an immediate challenge and judicial review? No dice, according to the agency, it’s premature.

This issue is now being considered by the U.S. Supreme Court in in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the EPA’s assertion that a portion…

Continue Reading Merits Brief In Sackett: Can A Property Owner Contest EPA’s Assertion Of “Wetlands” Jurisdiction?

No, it’s not a takings claim, so Williamson County ripeness isn’t a part of the opinion. In Potrero Hills Landfill, Inc. v. County of Solano, No. 10-15229 (Sep. 13, 2011), the Ninth Circuit held that the Younger abstention doctrine did not prevent the district court from considering a § 1983 claim for declaratory and injunctive relief in a land use case involving an initiative ordinance that regulated the amount of solid waste that could be imported into the county.

After the county concluded the ordinance was unconstitutional under the dormant Commerce Clause and refused to enforce it, one of the county landfills began to reach its limits and its owner sought an expansion permit. Environmental groups eventually brought suit in state court to require the county to enforce the ordinance. Shortly thereafter, the landfill and other waste and recycling businesses filed a federal court action to invalidate the ordinance…

Continue Reading 9th Cir: Federal Court May Consider A Land Use Civil Rights Claim

Geysers08

Today, we had the opportunity to take a tour of The Geysers geothermal dry steam field and one of its 16 electricity generation facilities, the McCabe 5 generation plant. The Geysers is the world’s largest energy production site fueled by geothermal.

Twelve miles up a country road from Sonoma County’s vineyards, the field was first discovered by western settlers when a hunter came across the steaming fumaroles and told his friends he had stumbled upon the gates to Hades. Soon thereafter, the site was developed as a resort, and from the 1850’s tourists would brave a treacherous stage ride to “take the waters” for health and recreation at the Geysers Resort Hotel.

The first geothermal well was tapped to generate electricity in the 1920’s, and today the plants in the field supply power to the coastal region of from San Francisco north to the Oregon border. Although output has…

Continue Reading A Visit To The “Gates To Hades” – The Geysers Geothermal Field