Modern Public Trust Principles: Recognizing Rights and Integrating Standards

The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection that relies heavily on state constitutional law and environmental statutes to give additional content and power to this ancient common law doctrine. By using this new theoretical framework based on recent judicial trends, the statutory, constitutional, and common law manifestations of public trust principles can all become mutually reinforcing rather than remain trapped in the “either-or” dichotomy engrained in prior scholarship

State Standards for Nationwide Products Revisited: Federalism, Green Building Codes, and Appliance Efficiency Standards

This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions. For decades now, states and local governments have been at the forefront of developing “green building codes” to reduce the energy use and GHG emissions associated with buildings. At the same time however, states are extremely limited in their authority to mandate more energy efficient appliances in buildings because of federal law preempting innovative state standards in this area. After providing a detailed discussion of state and local green building efforts and the history of federal preemption of appliance efficiency standards, this Article explores recent scholarly work in the area of “dynamic” or “polyphonic” federalism to argue for a new approach that allows for state innovation without disrupting the national market for appliances. This Article then suggests various options for revising the federal laws governing appliance efficiency standards that recognize and build on the expertise states have gained in reducing energy use and GHG emissions without creating an unworkable “50-state patchwork” of regulation

CERCLA, State Law, and Federalism in the 21st Century

This essay discusses the continuing role of state statutory and common law remedies for remediating contaminated property at a time where federal liability under the Comprehensive Response, Compensation, and Liability Act (“CERCLA”) has, after thirty years, become an established part of the legal and business landscape. In recent years, a growing number of courts have struggled with the extent to which CERCLA does or should preempt or displace state statutory or common law governing claims for recovering costs associated with contaminated property. This essay begins with the premise that the language of CERCLA as well as general principles of federalism argue against preemption of state law remedies when state law provides an independent, substantive statutory or common law basis for relief and does not directly interfere with CERCLA’s settlement framework. It then provides a practical example of how federal and state remedies for contaminated property can co-exist comfortably through the story of two jury trials involving CERCLA and state law claims for recovering cleanup costs and damages associated with contaminated property. These cases show that juries and courts are able to understand and apply the different standards imposed under state and federal law governing hazardous substance contamination in a manner that does not result in interference with either jurisdiction’s policies or result in duplicative recoveries for plaintiffs. Through a discussion of these cases, it becomes clear that the variations in state statutory law, state common law, and federal law can serve to complement each other without interfering with federal goals, and serve as a positive example of federalism in actio

Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control law, but the role in each field is quite different. Early natural resources law was based significantly on conveying property rights in natural resources to private parties to encourage westward expansion and economic development. By contrast, pollution control law as it developed in the 1970s and 1980s was based on placing limits on such rights and creating government permit systems to meet environmental protection goals. This Article proposes that as scholars and policymakers consider approaches to developing wind and solar energy, it will be important to not rely too heavily on a property rights-based, natural resource development approach. Instead, this Article argues that an approach that integrates resource access into state and local permitting and land use planning frameworks may better meet development and environmental protection goals without creating new entrenched and potentially problematic property rights in natural resources. Moreover, because wind development and solar development present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development should be structured based on private solar easement transactions within a hospitable local zoning framework while wind development should be based on a state-wide siting and permitting structure with much more limited local government involvement

Climate Change and Reassessing the Right Level of Government: A Response to Bronin

Climate change has caused lawmakers, policymakers, and scholars to reassess the traditional role of federal, state, and local governments to regulate a broad range of environmental, energy, and land-use issues. While the problem of climate change would appear to be best addressed at the international, or at least the federal level, it has been local governments and states that have taken the first and most important steps in recognizing the problem and experimenting with different ways to address it. While some of these experiments show how the lower levels of government can have a significant and positive impact on national-level problems, these experiments also reveal limitations of such an approach, calling out for a response by higher levels of government

The Growing Influence of Tort and Property Law on Natural Resources Law: Case Studies of Coal Bed Methane Development and Geologic Carbon Sequestration

19 pages. Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law Schoo

CERCLA, State Law, and Federalism in the 21st Century

This essay discusses the continuing role of state statutory and common law remedies for remediating contaminated property at a time where federal liability under the Comprehensive Response, Compensation, and Liability Act (“CERCLA”) has, after thirty years, become an established part of the legal and business landscape. In recent years, a growing number of courts have struggled with the extent to which CERCLA does or should preempt or displace state statutory or common law governing claims for recovering costs associated with contaminated property. This essay begins with the premise that the language of CERCLA as well as general principles of federalism argue against preemption of state law remedies when state law provides an independent, substantive statutory or common law basis for relief and does not directly interfere with CERCLA’s settlement framework. It then provides a practical example of how federal and state remedies for contaminated property can co-exist comfortably through the story of two jury trials involving CERCLA and state law claims for recovering cleanup costs and damages associated with contaminated property. These cases show that juries and courts are able to understand and apply the different standards imposed under state and federal law governing hazardous substance contamination in a manner that does not result in interference with either jurisdiction’s policies or result in duplicative recoveries for plaintiffs. Through a discussion of these cases, it becomes clear that the variations in state statutory law, state common law, and federal law can serve to complement each other without interfering with federal goals, and serve as a positive example of federalism in actio

Takings and Transmission

Ever since the Supreme Court\u27s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in Kelo. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly owned projects such as schools, post offices, and other government buildings, or “use by the public” takings that condemn land for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country\u27s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private “merchant” companies rather than by publicly regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state. This Article outlines some ways for states to accomplish this goal

Renewable Energy and the Public Trust Doctrine

This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values