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On October 20th at Pace Law School, Professor John Nolon will demonstrate how local governments can preserve natural resources, maintain critical environmental functions, respond to climate change, and build sustainable communities. His presentation coincides with the launch of his new book on local environmental law, Preserving the Environment Through Land Use Law: Standing Ground, and his receipt of a prestigious award from the International City/County Management Association (ICMA). Demonstrating his commitment to involving students in his work, the luncheon ceremony is being co-sponsored by the Land Use and Sustainable Development, Real Estate, and Environmental Law Societies.

David Yassky, Dean of Pace Law School said, “John Nolon’s Land Use Law Center is known nationwide for developing practical experience for students, pursing rigorous and relevant scholarly endeavors, and serving the community and profession. We are proud to join Professor Nolon in the launch of his latest book, and we join ICMA in honoring him for his contributions to the legal and local government professions.”

Jason Czarnezki, Executive Director of Pace Environmental Law Programs, “The nationally ranked Environmental Law Program at Pace Law School has pushed the boundaries of environmental law for decades: redefining its practice and preparing the next generation of lawyers for the serious challenges ahead. Professor Nolon’s work with local governments contributes greatly to expanding the field of environmental law. He has sparked much progress by his innovative interpretations and applications of local land use authority. His new book demonstrates this in granular detail, and this award from the ICMA is a well-deserved recognition of his contributions to professionalism in municipal government nationally.”

Standing Ground looks at the legal foundations of local environmental law within the federal legal system. It establishes a comprehensive framework for understanding how local land use protects the environment, and outlines policies to make urban neighborhoods environmentally sensible and livable. Standing Ground also demonstrates the Pace Land Use Law Center’s innovative work since Professor Nolon founded it in 1993. The Center fosters the development of sustainable communities and regions by promoting innovative land use strategies and dispute resolution techniques. For the last 20 years, Professor Nolon and the Center have offered training programs, conferences, seminars, clinics, continuing education classes, and frequent publications and resources on land use, real estate, affordable housing, and environmental issues.

Robert J. O’Neill, ICMA Executive Director, said, “ICMA’s mission is to create excellence in local governance by developing and fostering professional management to build sustainable communities that improve people’s lives. ICMA Honorary Membership is awarded to recognize an individual outside of the local government management profession for his or her distinguished public service and contributions to improving and strengthening local government. For his numerous contributions to increasing local governments’ capacity to build sustainable communities, it is our great pleasure to award Professor Nolon Honorary Membership in the ICMA.”

Paul Beyer, Director of Smart Growth, New York State Department of State, “I have seen the positive influence of John Nolon’s work at the local level throughout the state, as well as on state agency programming. I call him the State’s Dean of Smart Growth and Sustainable Land Use Planning and am delighted to hear about this well-deserved award from the ICMA.”

“In the Preface and Acknowledgements to the book, Professor Nolon makes clear his appreciation for the students who worked with him in its production and the contributions of the staff attorneys of the Land Use Law Center. He mentions by name nearly two dozen students who labored with him over the past two years to create Standing Ground. We are so pleased that the ICMA is honoring his contributions to the profession of municipal government since that is precisely what the book achieves,” said Jessica A. Bacher, Executive Director of the Land Use Law Center.

The ICMA award will be presented by ICMA Member and Pace Law Student J. Justin Woods, JD/MPA Candidate, (2016). Woods and Meredith Robson, the incoming Village Manager of Ardsley, New York, collaborated to nominate Professor Nolon for this award.

Robson said, “For over 20 years, Professor Nolon and the Land Use Law Center have been training local leaders in smart growth and effective municipal planning strategies. Their resources, seminars, and publications on land use, affordable housing, and local environmental issues have provided treasured counsel to countless local officials and citizen volunteers.”

“Professor Nolon and Pace Law School have built an extraordinary Center for Pace Law students to engage in innovative land use law practice focused on sustainable development. I am so grateful to work with Professor Nolon and the Center staff, and I am proud to be part of honoring Professor Nolon for all he has given to the field of planning and local government, and more importantly, for the service he provides to Pace Law students and local communities,” said Woods.

Standing Ground is published by West, the Environmental Law Institute, and the American Planning Association. All royalties are dedicated to the Land Use Law Center, and will be used to support the work of Pace Law students engaged in the Center’s programs. Standing Ground can be ordered from the Environmental Law Institute website at www.eli.org/eli-press-books.

For more information:

Any questions about the event can be directed to J. Justin Woods, Land Use & Sustainable Development Fellow at the Pace Land Use Law Center, at jwoods@law.pace.edu.

Media inquiries can be to Pace Law School through Joan Gaylord, Manager of Pace Law External Affairs, at (914) 422-4389 or jgaylord@law.pace.edu.

Any questions about the ICMA or the ICMA award can be directed to Michele Frisby, ICMA Director, Communications & Public Information, at mfrisby@icma.org.

Vacant properties are a persistent land use issue in the most financially distressed regions, as thousands of properties currently sit empty throughout nation. “Zombie” properties result when a bank begins foreclosure proceedings on a property, and the owner abandons the property before the process can be completed. Existing in limbo until the foreclosure paperwork is finally finished, the properties sit rotting for years, attracting unsavory activities and decreasing neighborhood property values. In Newburgh, N.Y., alone, ten percent of all homes are in some state of abandonment, and many of these properties are zombie properties based on the Center’s study of confirmed vacant properties in Newburgh. Other cities that have experienced an industry exodus, such as Poughkeepsie (for which the Center has conducted a similar study), Niagara Falls, Buffalo, and even Westchester County localities face a similar plight and are eager to begin taking substantive steps to resolve them.

Jessica Bacher, Executive Director of Pace Land Use Law Center, has been a key player in the process of property remediation in localities struggling with vacant properties. She serves as Chair of the ABA State and Local Government Section’s Distressed Properties Sub-Committee of the Land Use Planning & Zoning Committee, and her forthcoming article in the Urban Lawyer, A Local Government’s Strategic Approach to Distressed Property Remediation, co-authored with Meg Byerly Williams, discusses this issue in detail. In Newburgh specifically, Jessica has worked closely with city staff and local non-profits on code enforcement best practices, the development of one of the first land banks in New York State, and creation and amendment of local laws to better address the concerns posed by vacant properties.

Vacant properties also have caught the attention of the New York Attorney General’s Office. The Attorney General strongly advocates legislation that directly addresses the vacancy issues faced by localities, and the legislature will consider this legislation again in January 2015 during the new legislative session. The legislation will require banks to register vacant properties in a central database and pay for their upkeep. Jessica believes this is a crucial step to effectively address the vacancy issue: “a statewide registry would alleviate a significant local burden and shed light on an issue that until now has gone almost unnoticed. The registry would help to clarify the extent of the problem, so appropriate strategies and enforcement techniques can be developed and deployed.” The bill also creates a standardized definition of the term “abandonment,” provides guidelines for determining abandonment, requires banks to provide notice to those residing in foreclosed properties that they have a right to remain in the property until the conclusion of the foreclosure proceedings, and imposes penalties on banks that do not wrap up their foreclosure proceedings in a timely manner (up to $1,000 per day). If passed in the upcoming legislative season, the bill will ease the uphill battle localities face when addressing vacant property issues.

Professor Ann Powers:

Two Pace students, Ann Bermont (’14) and Anthony Papetti (’14), were among those responding to a request by the International Union for the Conservation of Nature (IUCN) for assistance  preparing briefing materials for IUCN’s oral presentation in a case before the International Tribunal on the Law of the Sea (ITLOS). Case #21 Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) involves the rights and obligations of coastal states in managing fisheries and preventing illegal fishing. It will be heard by the Tribunal in September in Hamburg.

Professor Ann Powers:

For those of you interested in the UN’s process for establishing Sustainable Development Goals as mandated by Rio+20, the Open Working Group approved its  “Outcome Document” on Saturday after a final week-long session.   It will be taken up by the General Assembly in the fall.


There are separate goals on water, energy, climate, oceans and terrestrial ecosystems.   The document was drafted by the co-chairs of the Working Group, with input from states, NGOs, IGOs and other stakeholders through many meetings and iterations.   Scores of states were active participants throughout the process and the galleries were often packed with civil society representatives.  If you have ever tried to draft a document in a committee, then imagine it multiplied by orders of magnitude.  It was often painful to watch, often boring, but the final document reflects a global general consensus of what must be done post 2015.  There are still contentious items, such as climate and some of the implementation issues, and the General Assembly may make changes, but just getting this far should be counted as an achievement.

Ann Powers

Associate Professor of Law

Pace Law School


Professor Ann Powers from the IUCN Academy of Environmental Law Colloquium in Tarragona:

Although an extensive range of energy topics are being covered, the Colloquium has focused primarily on terrestrial activities and has provided only limited discussion opportunities for those whose primary interests are the health and protection of our oceans and coastal waters.  The first occasion came Wednesday in a workshop which dealt with the well-recognized impacts, actual and threatened, of oil production in and transportation on water.  Highlighted were the issues raised by potential oil production in major new fields off the coast of Brazil. Also of special relevance was an examination of offshore oil and gas exploration in the Arctic, with a proposal by the speaker for specific actions by the European Union.  A workshop scheduled for Thursday on the issues faced by developing countries, particularly small island developing states, was cancelled when speakers were unable to attend the conference, but resulted in a small group discussion of the role of SIDS in the climate debate, and a case study of a developed island state, Singapore.

On Friday then, the workshop on the Marine Environment, Renewable Energy and Governance, drew and appreciative audience of oceans and coasts professors, who applauded excellent presentations on building the blue economy, international law and governance related to energy, and marine spatial planning.   While we are unlikely to see renewable energy development in areas beyond national jurisdiction anytime in the near future, there are already numerous wind, wave, and tidal projects in national waters around the globe which present potential environmental concerns.

Following the workshop, the IUCN/WCEL Specialists Group on Oceans, Coasts and Coral Reefs met to consider projects and activities for the next year.  It was decided to focus on renewable energy in the marine environment, with the intention or raising the profile of the issue both in the work of IUCN and in general.

Pictured: Professor David Cassuto discussing water allocation law.


After two days of workshops and side events focused on teaching and research, the 12th IUCNAEL Colloquium opened officially Wednesday with remarks and greetings from a number of IUCN officials, academic hosts, and local and international dignitaries.  Participants then moved on to the individual breakout sessions that will fill much of the rest of the week.  With energy as the overall organizing theme, and sustainable development as a subtext, attendees are offered a rich array of panels and presentations, covering important aspects of energy production, use and control. 

Pace is well-represented at the conference by faculty, students and alumni.  In  addition to Professors Cassuto, Ottinger, Powers and Rabago, the Pace delegation includes John Bowie, JD’14, and Cayleigh Eckhart, JD’15.  Also in attendance are alums Elaine Hsiao, LLM’10, who gave a presentation in the session on Universal Energy Access, Environmental Governance, and Democratic Participation;  and Widener Professor Jim May, LLM’91, and University of Witwatersrand Professor Tumai Murombo, LLM’06, who joined research panels on hydraulic fracking.  Other Pace representatives, including NYU (Abu Dhabi) Professor Shakeel Kazmi, SJD’12, are scheduled in the next two days.

We are also happy to have time to connect with  former Environmental Program Director Lee Paddock, now at George Washington, and former Energy and Climate Center Director Jamie Van Nostrand, LLM’11, currently at West Virginia University.

Read the abstracts, papers, and presentations from the IUCNAEL Colloquium.

Pictured: Dean Emeritus Richard Ottinger and John Bowie presented a paper on “Innovative Financing for Renewable Energy.”


Submitted by John R. Nolon, Professor of Law, Pace Law School, Counsel to the Land Use Law Center, and Adjunct Professor of Land Use Law and Policy at the Yale School of Forestry and Environmental Studies.

In February, I posted a blog on Pace Law School’s GreenLaw site defining a land use climate change bubble. I noted that real estate prices in many parts of the country are beginning to fall due to the real and perceived effects of climate change on land use. What is happening, I posited, is an indication that a variety of climate bubbles are forming in vulnerable areas and that the evidence is visible on the land; let’s call this a nation-wide profusion of “reverse land use climate change bubbles.”

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By Daniel E. Estrin
Adjunct Professor of Law, Pace Law School
Supervising Attorney, Pace Environmental Litigation Clinic

A very important public trust decision was issued yesterday by the New York State Court of Appeals in a case brought by the Pace Environmental Litigation Clinic’s good friends and allies at the Super Law Group. New York State’s highest court ruled in Capruso v. Village of Kings Point that legislatively unauthorized “non-park” uses of public parkland by municipalities are continuing wrongs that can be challenged at any time by the public or the state, and that statute of limitations and laches defenses may not be asserted by municipalities to block efforts to enjoin such violations of the Public Trust Doctrine.  This ruling applies even where the municipal misuse of parkland has been ongoing for decades.

Why is this decision so significant?  Because decisions by municipalities to misuse public parkland (i.e., to use parkland for purposes other than public recreation without state legislative approval) are often made in secret between municipal agencies, with no notice to the public.  Moreover, even where such misuses of parkland may be deemed evident to park users, as the Court of Appeals noted, it is “unreasonable to expect ordinary citizens who use . . . parks to know whether a particular use by a municipality has received approval by the State Legislature and whether municipal infrastructure located on parkland is intended to serve the park or public areas outside of the park.” This critical ruling will likely cause New York municipalities to think more deliberately before they decide to invest public funds in projects that could much later be found not to constitute park uses.

Our Clinic regularly utilizes the Public Trust Doctrine to protect parkland and other natural resources.  Most recently, we blocked a proposal by the City of New York to use 20 acres of Spring Creek Park in Brooklyn as a solid waste management facility and stopped the City of Poughkeepsie from leasing all of the public dock space in Waryas Park to a for-profit tour boat company.  We salute the efforts of the Petitioners and their counsel in this case to protect nonrenewable natural and public resources, with an extra tip of our hats to Attorney General Eric Schneiderman and Assistant Solicitor General Bethany Davis Noll for their public interest advocacy and excellent work on the companion appeal.

If any readers are interested in the applicability of the Public Trust Doctrine to municipal parkland under New York law, we strongly recommend the excellent Handbook on the Alienation and Conversion of Municipal Parkland in New York, published by the New York State Office of Parks, Recreation and Historic Preservation.

By: Christopher Halfnight, MEM Candidate, Yale School of Forestry & Environmental Studies

Unconventional oil and gas development is fundamentally changing the U.S. energy landscape, bringing both new challenges and new opportunities.  Federal and state laws regulate some aspects of the shale oil and gas development life-cycle, but the pace and scale of shale plays in states from Pennsylvania to Texas to North Dakota risks a host of potential impacts at the local level – impacts that may fall through a governance gap without effective exercise of municipal land use and zoning authority.

Researchers at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School, with support from the Oscar M. Ruebhausen Fund at Yale Law School and the Yale Climate and Energy Institute, are leading an outreach, analysis, and guidance effort to help address this potential shale gas governance gap at the local level.  As outlined in the team’s White Paper, outright bans on fracking risk state preemption, while uncontrolled drilling risks negative community and environmental impacts.  The project team aims to support municipal leaders in developing sound, balanced, and effective local regulatory, non-regulatory, and planning practices to address the impacts of shale oil and gas development.  With the proper tools, local authorities can effectively govern many aspects of fracking by better interfacing with state regulators and industry, or exercising local powers to mitigate land use impacts and environmental damage, while ensuring safeguards for net economic, social, and community benefits.

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Esopus Creek at the Shandaken Tunnel Outlet

This is a post for Ad-law geeks. The Pace Environmental Litigation Clinic just won its case challenging the EPA Water Transfer Rule on behalf of Trout Unlimited, Waterkeeper Alliance and Hudson Riverkeeper. The Clinic has been representing Trout Unlimited on this issue for well over a decade, since 2000 when the Clinic commenced litigation seeking to force  New York City mitigate the impacts of warm, turbid water from the Shandaken Tunnel (part of the New York City water supply system) on the fabled Esopus Creek trout fishery.
The very thorough opinion by Judge Kenneth Karas of the Southern District of New York is here:  20140328 WTR – Order granting summary judgment & vacating EPA WTR   In the Water Transfer Rule, EPA tried to exempt transfers of polluted water between water bodies from the permitting requirements of the Clean Water Act.   EPA claimed that no “addition” under the statute took place when pollutants in water were transferred from one place to another.  Under Chevron v NRDC, a court reviewing an agency legal interpretation must first determine whether the underlying statute unambiguously resolves the question (in which case the court must enforce the statute).  If the statute does not resolve the question, the court proceeds to Chevron Step II — a determination whether the agency interpretation resolving the ambiguity is “permissible.”    Since the Clinic had already won a ruling from the Second Circuit (twice) that the plain language of the Clean Water Act unambiguously required permits for such transfers, and that any other result would be “absurd,” we argued that the Water Transfer Rule failed Chevron Step I — that the language and history of the Clean Water Act left no ambiguity that water transfers require permits. Surprisingly, Judge Karas’s of the Southern District of New York found sufficient ambiguity in the Clean Water Act to proceed to Chevron Step II — the question of whether EPA’s resolution of the ambiguity was permissible.
Judge Karas’s analysis is probably the the most thorough consideration of how to apply Chevron Step II — the question whether EPA’s resolution of ambiguity in the statute is “permissible.”  Judge Karas points out that this analysis is not pro-forma — just because the statute is ambiguous does not mean that any resolution of the ambiguity is necessarily permissible. The agency can’t act arbitrarily, and must still consider the relevant factors and provide a reasoned basis for its decision, which EPA did not do here. Judge Karas faulted EPA for failing to provide any reason for favoring the interests of water management agencies over the interests of preserving water quality. And Judge Karas also found that EPA’s resolution of perceived statutory ambiguity was impermissible because it created irreconcilable conflicts with settled understandings of other terms of the Clean Water Act — particularly the section 404 permitting requirement for discharge of dredged material and the understanding of the term “waters of the United States” to refer to bodies of water, not physical water in pipes.   Judge Karas held that water in pipes cannot be a “navigable water” under the statute.  This latter point was the one point of agreement among members of the Supreme Court in the Rapanos case.

Judge Karas vacated the Water Transfers Rule and remanded it to EPA for reconsideration.  Let us hope that EPA, at least, reconsiders the rule rather than continue its decades long fight against water quality on this particular issue.

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