Regulatory Takings Conference Highlights New Challenges Posed by Climate Change
November 17, 2009
Vermont Law School 1L Erica Lewis talking with Cornell University Law School's Professor Gregory Alexander during a break.
Carbon sequestration was not on the minds of regulatory takings experts a decade ago, but as the world now searches for innovative ways to curb greenhouse gas emissions, the method of underground carbon storage presents a new and complex realm of property rights issues.
Who owns the deep geological subsurface where CO2 would be stored? Does the government have the right to take such property by eminent domain by claiming carbon sequestration as a "public use"? What would constitute just compensation? What restrictions could be placed on the private land above the sequestration sites, given the delicate nature of the storage operation-and the fact that millions of acres will be affected?
These questions, posed by Professor Alexandra Klass of the University of Minnesota School of Law, demonstrate just some of the legal challenges that climate change presents when private property rights conflict with public interest.
"These issues are the same issues that we deal with. Many of our cases involve beachfront development worth millions of dollars."Tom Ojienda
Member of Visiting Kenyan Environmental Tribunal
Klass was one of nearly 200 legal scholars, lawyers, judges and students who gathered at Vermont Law School on November 6 for the 12th annual conference, "Litigating Regulatory Takings Challenges to Land Use and Environmental Regulations."
The daylong session also explored beach erosion issues related to climate change, with a luncheon discussion that focused on an upcoming U.S. Supreme Court case, Stop the Beach Renourishment vs. Florida Department of Environmental Protection, scheduled for argument December 2, 2009. That case pits private property owners against the state's efforts to restore beaches that have been subject to erosion.
"It's a new and interesting area. Climate change promises to bring about major changes in the physical landscape, and those changes are bound to produce property conflicts," says VLS Professor John Echeverria, a takings expert who was responsible for bringing this year's conference to VLS. "Climate change will almost certainly be an important topic of discussion at this conference in future years."
And the legal challenges related to climate change and beachfront development rights aren't limited to the U.S.
VLS students and Professor John Echeverria discussed the differences between U.S. and Kenyan legal approaches to land use issues with Jane Akinyi and Donald Kaniaru of the Kenya Environmental Tribunal.
"These issues are the same issues that we deal with," notes Tom Ojienda, one of three members of the Kenyan Environmental Tribunal who traveled to VLS to attend the conference. "Many of our cases involve beachfront development worth millions of dollars."
In one high-profile property rights case, the five-member tribunal has put a temporary stop on a developer's plan to build a hotel in prime cheetah breeding grounds, according to Ojienda, who also attended last year's takings conference, held at Stanford.
The Kenyan delegation has found that the day of discussion provides very useful lessons to be applied back home. The key difference between the U.S. and Kenyan legal approaches? The Kenyan tribunal includes two scientists in addition to three judges, which Ojienda sees as strength of his nation's system.
This year's conference, cosponsored by the VLS Land Use Institute, Georgetown University Law Center, Columbia Law School, and the Vermont Journal of Environmental Law (VJEL), also delved into issues of bilateral property rights; critical issues related to the landmark Lucas decision; temporary versus permanent takings questions and water regulation. It marked the first time the prestigious conference was hosted at VLS.
"These conferences provide a forum for scholars and practitioners to share insights about how takings law is developing and offer ideas about how different cases might be argued," says Echeverria, who organized the first annual takings conference in 1998 while on faculty at Georgetown Law, and has been keeping the tradition going ever since.
Kristin Hines, a third-year VLS student and editor-in-chief of VJEL, says she was impressed by the draw of top takings scholars and leading practitioners from around the country, which she sees as a great benefit to the VLS community.
"Many of them knew about our reputation for environmental law but hadn't physically been here to interact with faculty and students," says Hines, noting that in addition to such recognizable scholars as Joseph Sax from UC Berkeley School of Law, the conference drew leading lawyers, such as those from the U.S. Department of Justice and the California Attorney General's office, as speakers.
"I thought the mix was very interesting. You had professors and other people who are working on the theoretical parts, and the practitioners who agree with those approaches but who are working on the ground, with how the courts work with the doctrine," she says, adding, "It was a great honor to host it."
For more on the speakers' biographies and papers, visit VJEL online. 
Download the full conference schedule.
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