Environmental and Land Use Law Curriculum

NYU School of Law’s first-year curriculum and its extensive upper-year courses, colloquia, and seminars in environmental and land use law provide Law School students with an indepth grounding in the theory and practice of environmental and land use law. The program’s clinical courses in U.S. and international environmental law and community economic development then provide a rich array of practical, hands-on opportunities for students to apply their classroom learning to the solution of important environmental and land use problems in New York City, the nation, and abroad.

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The First Year

In the first year, students are exposed to environmental and land use issues in their property and torts courses. Professors Been, Schill, and Wyman teach first-year Property, and regularly use land use and environmental problems as a springboard to discuss basic property law concepts. The modern-day property course (which is a far cry from the tortured study of the rule against perpetuities that many alumni may recall) focuses on such issues as the tragedy of the commons, and the regulatory responses to the broader problem of externalities that “tragedy” embodies; the convergence of property, contract, and tort law in the landlord/tenant revolution of the 1970s and ’80s; and the special challenges posed to property law by residential racial segregation and the need for affordable housing. Today, the Property course focuses less on the details of the estates system, and more on how the law might respond to Dr. Seuss’s classic warning, The Lorax, which illustrates the cover of this magazine. Similarly, in firstyear torts, Professor Stewart and others introduce a range of environmental examples to illustrate the basic principles of tort law.

In addition, students may elect to take a section of the Law School’s new Administrative and Regulatory State course that focuses on environmental regulation. The Administrative and Regulatory State recently was added to the first-year curriculum to give students a basic grounding in public law and regulation, and to counterbalance the long-standing dominance of private law subjects in first-year courses. The section of the course that focuses on environmental regulation, taught by Stewart, uses the Clean Air Act as an example to help students examine the interplay between the legislative process, administrative implementation of regulatory statutes, judicial review of administrative action, and statutory interpretation in the development and implementation of regulatory programs. The course equips students to understand and work with legislative and administrative procedures and materials and to analyze statutes closely. It supplies an invaluable foundation for the many upper-year courses and fields of law practice that involve statutes and administrative programs. For students with an interest in environmental law, Stewart’s section provides an invaluable introduction to many of the important themes and issues in current U.S. environmental law, including the reasons for adoption of environmental regulatory programs and their basic design; issues of federalism in environmental policy; the choice of regulatory instruments, including economic incentives and informationbasedsystems as well as traditional command regulation; and the relevance of economic analysis and other normative foundations for environmental regulation.

Upper Years

The Foundational Courses

Students interested in environmental or land use law usually begin their second years by taking one or more of several introductory survey courses.

Environmental Law offers an introduction to the legal regulation of environmental quality. The course considers the theoretical foundations of environmental regulation, including economic and non-economic perspectives on environmental degradation; the scientific predicate for environmental regulation; the objectives of environmental regulation; the valuation of environmental benefits; the distributional consequences of environmental policy; and the choice of regulatory tools, such as command-and-control regulation, taxes, marketable permit schemes, liability rules, and informational requirements. The course then analyzes the role of the various institutional actors in environmental regulation, the allocation of regulatory authority in a federal system, and public choice explanations for environmental regulation. After laying that foundation, the course analyzes the principal environmental statutes, particularly the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Endangered Species Act; and the National Environmental Policy Act.

International Environmental Law surveys the customary law and treaty-based principles, rules, and institutions whereby states cooperate to respond to transboundary and global environmental challenges. After a general overview of the legal and political landscape, the course focuses on those challenging issues currently shaping international environmental law, including global warming, declining fish stocks, loss of biological diversity, the regulation of genetically modified organisms, and the potential clashes between environmental objectives and the rules and institutions of the World Trade Organization. The course combines framing lectures with interactive sessions in which students are encouraged to test the boundaries of international environmental law by arguing opposite sides of these controversial issues.

[SIDEBAR: Administrative and Regulatory State]

Land Use Regulation examines how land use is shaped and controlled through government regulation. It begins by discussing the circumstances under which regulation might be needed to temper the private market ordering of land use patterns. It develops a typology of the kinds of regulatory and market-based tools that are available to control land use, and provides a framework for evaluating the appropriateness of alternative tools. It also explores the rights an owner of land has if a particular regulation of land is inefficient, unfairly burdensome, or unfairly disruptive of the owner’s settled expectations, or an infringement on the owner’s civil liberties. The course then switches sides to examine the rights those who oppose the landowner’s plans may have to stop, or require modifications to, those plans. Finally, the course focuses on particular problems that plague the land use regulatory system, such as the financing of development, exclusionary zoning, the fair distribution of undesirable land uses, and “smart growth.”

Other areas of the law. In addition to the introductory environmental and land use courses, students interested in these areas usually take related foundational courses, such as Administrative Law, Constitutional Law, Corporations, International Law, Local Government Law, Real Estate Transactions, Remedies, and Taxation.

Seminars and Colloquia

To build on the foundational courses, students take a wide variety of more specialized seminars and colloquia.

Advanced Environmental Law Seminar

Advanced Environmental Law, which will be taught in 2003-04 by Professor Wyman, concerns prominent issues in environmental and natural resources law and policy in the United States and abroad. Topics covered include the ongoing debates about the use of analytical tools such as cost-benefit analysis and the precautionary principle in establishing environmental objectives, and current concerns about the factors now influencing the choice of instrument in environmental regulation, especially the obstacles to greater use of economic instruments such as tradeable permits. The seminar also considers interjurisdictional disputes over the allocation of water, current controversies in the regulation of fisheries and marine mammals, and environmental issues specific to densely populated urban areas. The interaction between international trade and the environment also is discussed, and in this context the seminar considers the ongoing conflict between the United States and Europe about the regulation of genetically modified organisms.

[SIDEBAR: Globalization and Its Discontents Colloquium]

Colloquium on Globalization and Its Discontents

The Globalization and Its Discontents Colloquium provides a weekly forum in which leading scholars from diverse fields present papers on legal and institutional responses to the consequences of globalization, and discuss those papers with students and faculty in a lively roundtable format. The colloquium is one of a number of curricular innovations resulting from the Law School’s recent recruitment of five outstanding new faculty in international law—Professor Kingsbury and Professors Philip Alston, David Golove, Mattias Kumm, and Joseph Weiler— joining the Law School’s extraordinary senior international law faculty. In Spring 2003, the colloquium was convened by Professors Kingsbury and Stewart.

Over the semester, students use class discussion and written work to consider core theoretical issues about globalization. They consider, for example: the meanings and usages of concepts such as “governance,” “civil society,” “democracy,” and “accountability” in the context of increasing international interdependence; the significance of global inequalities; relations between international and national law; arguments for and against international regulation by formal institutions; the need for and prospects of international administrative law; and unmet demands for justice and fairness at the global level.

These theoretical issues are then applied and developed in the concrete setting of current global problems and controversies, including many involving environmental and land use law. In Spring 2003, sessions tackled the following issues:

> Governance of Plant Genetic Resources: A Regime Complex (paper presented by Professor Kal Raustiala, UCLA Law School, co-authored with David G. Victor, Stanford University)

> Taking Embedded Liberalism Global: The Corporate Connection (paper presented by Professor John Gerard Ruggie, John F. Kennedy School of Government, Harvard University, formerly U.N. assistant secretary-general and senior adviser for strategic planning to Secretary-General Kofi Annan)

> Regulating Genetically Modified Organisms (paper presented by Professor Stewart)

> The Jurisprudential Achievement of the WTO Appellate Body (paper presented by Professor Robert Howse, University of Michigan Law School)

> The New Transformation of Europe (paper presented by Professor Charles Sabel, Columbia Law School)

> The Constitutional Challenge of New Governance in the European Union (paper presented by Grainne de Burca, European University Institute, with comment by Professor Francesca Bignami, Duke University Law School, and Emile Noël Visiting Fellow, Jean Monnet Center, NYU School of Law)

> Competition Law and Policy: Global Governance Issues (paper presented by Professor Frédéric Jenny, ESSEC, Paris, and vice-chair, Conseil de la concurrence; chair, OECD Competition Law and Policy Committee; and chair, WTO Working Group on Trade and Competition Policy; with comment by NYU School of Law Professors Harry First and Eleanor Fox)

> Climate Change and the Rules vs. Standards Problem in International Governance (paper presented by Professor Daniel Bodansky, Emily and Ernest Woodruff Professor of International Law, University of Georgia, formerly climate change coordinator, U.S. Department of State, 1999-2001)

> Is There Really a “Democratic Deficit” Problem in Global Governance? (paper presented by Professor Andrew Moravcsik, Government Department, Harvard University)

In 2004, the colloquium will focus on international administrative law and the development of mechanisms for participation and accountability for international decisionmakers and institutions. This is part of a major research project convened by Kingsbury and Stewart along with Institute for International Law and Justice Hauser Research Fellow Nico Krisch, in which students are actively involved.

[SIDEBAR: Colloquium on the Law, Economics, and Politics of Urban Affairs]

Colloquium on the Law, Economics, and Politics of Urban Affairs

This colloquium, taught jointly by Professors Been and Schill from the Law School and Professor Ellen from the NYUWagner School of Public Service, allows students to explore current debates about critical urban policy issues. Leading scholars from planning, law, economics, and political science present early drafts of new research, which students then critique and discuss. The colloquium also is widely attended by faculty from the Wagner School and its Taub Urban Research Center, and from the Metropolitan Studies Program of the College of Arts and Sciences. Faculty from other area law schools and urban planning and economics programs, government officials, and policy-makers from both New York City and Washington, D.C., also frequent the colloquium. Topics addressed in Fall 2002 included:

> Local Land Use Controls and Demographic Outcomes in a Booming Economy (by John Quigley, I. Donald Terner Distinguished Professor and Professor of Economics, University of California at Berkeley)

> Housing and Political Participation (by John Mollenkopf, Distinguished Professor of Political Science and Sociology, Graduate Center, City University of New York)

> Gated Communities: Protecting Public Values in the Private City (by Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia Law School)

> Medium-term Economic Prospects for New York City in the Aftermath of the 9/11 Attacks (by Andrew Haughwout, senior economist, Federal Reserve Bank of New York)

> School Vouchers: A Critical View (by Professor Helen Ladd, Sanford Institute of Public Policy, Duke University)

> Gentrification and Displacement in New York City (by Lance Freeman, assistant professor, Urban Planning Department, Graduate School of Architecture Planning and Preservation at Columbia University, and Frank Braconi, executive director, Citizens Housing and Planning Council)

Housing and Urban Development: Law and Policy

This seminar, which will be taught in Fall 2003 by Adjunct Professor Walker, explores a broad range of issues concerning U.S. housing policy. Students study the historical development of interventions in the housing market as well as the economic justifications for these interventions, and compare and contrast various regulatory and spending programs, with special attention to the comparative advantages and disadvantages of government programs designed to stimulate supply and those geared to increasing demand. The course also addresses nonprofit, community-based housing; discrimination in the housing market; housing finance; and homelessness. Throughout the semester, students draw comparisons and contrasts between housing laws and policies in New York City and those of the nation as a whole.

Indigenous Peoples in International Law

Issues concerning indigenous peoples (including descendants of pre-colonial inhabitants in the Americas and Australasia, and groups in Asia and elsewhere) are increasingly significant in many countries and in the United Nations, World Bank, Organization of American States, and other international institutions. The Indigenous Peoples seminar, taught by Professor Kingsbury, discusses challenges to standard liberal concepts and to democratic theory posed by such issues as the meaning and problems of the concept of indigenous rights; the nature and meaning of the right to self-determination; tensions between individual rights and group rights, such as those that arise over discriminatory membership rules; minority rights regimes in international law; removal of children from indigenous communities; the activities of multinational corporations; tensions between indigenous peoples’ rights and environmental law; and indigenous peoples’ rights under international trade and intellectual property regimes.

[SIDEBAR: Environmental and Land Use Topics Featured in Other Law School Colloquia]

Several student papers in the Spring 2003 seminar focused on environmental issues. Kristen Genovese (’04) wrote on “Alaska Native Corporations, Oil Development, and Environmental Management”; Deborah Im (’04) analyzed “Korean Transnational Logging Companies and Indigenous Land Rights in Nicaragua”; and Nicholas Olmsted (J.D.-M.P.P. ’03) explored “The Central Kalahari Game Reserve and San Land Rights in Botswana.” Many students wrote on environmental problems facing indigenous peoples in other courses also. Aderito Soares (LL.M. ’03), a member of the East Timor Constituent Assembly, for example, drew on his firsthand experience to write on “Community Responses to the Freeport McMoRan Mine in West Papua.” Some of the students developed their seminar papers into publishable notes. Gerald P. Neugebauer III (’03) is publishing his exploration of recent attempts to use human rights to protect Latin American indigenous groups from harmful petroleum exploration, for example, as “Indigenous Peoples as ‘Stakeholders’: Influencing Resource-Management Decisions Affecting Indigenous Community Interests in Latin America,” New York University Law Review (2003). His note argues that such legal protections have failed to fully safeguard indigenous communities, and explores whether increased corporate use of the “stakeholder” theory of corporate decisionmaking would be a better approach. Kingsbury is editing a special issue of the International Journal of Minority and Group Rights that is publishing a collection of intensively revised papers by students in the seminar dealing with indigenous peoples’ issues in East and Southeast Asia. Many of these papers make available to the scholarly community source materials and commentary not otherwise available in English.

Law, New Technologies, and Risk Seminar

Professors Stewart and the late Dorothy Nelkin introduced this seminar in 2002. It explores the role of law and legal institutions in addressing the environmental risks of new technologies, focusing on the use of genetically modified organisms (GMOs) in foods and crops. The seminar examines the emerging conflicts over GMOs, including the arguments of proponents that the technology will enhance food productivity while lessening use of agricultural chemicals, and those of opponents, who emphasize the novelty of the technology and claim that it poses uncertain but potentially significant environmental and health risks. The seminar considers the role of public values and attitudes in relation to government regulation and consumer acceptance of GMO products, international trade/regulatory conflicts over GMOs between the United States and the European Union, and the potential role of GMOs in developing country efforts to meet the food needs of their growing populations. Guest speakers addressed the following issues in the seminar:

> Environments at Risk: Norms and Public Policy (by Mark Sagoff, The Institute for Philosophy and Public Policy, University of Maryland at College Park)

> Technology-Based Health Risks, Corporate Practices, and Regulation in Historical Perspective (by David Rosner, Columbia University)

> The Biotech Wars (by Susan Sechler, Rockefeller Foundation)

> Scientific Uncertainties and Conflicting Expertise (by Rebecca Goldburg, Environmental Defense)

> A Business Perspective on Biotech (by Jonathan Malkin, ATP Capital, LP)

> Consumer and Environmental Protests (by Carol Foreman, Consumer Federation of America)

> Questions of Liability and Risk Management (Gordon Stewart, Insurance Information Institute)

> Domestic Regulatory Frameworks (Emily Marden (’98), Sidley, Austin, Brown &Wood LLP)

Property Theory

The concept of private property arguably has been more central to U.S. law and legal scholarship in the past 25 years than it has been any at any point since the period from the 1880s through the 1930s — the Lochner era. Now, as then, contentious debates in society at large about the appropriate role of government often are translated into conflicts about the boundaries of private property, and the related question of the constitutional limits of government regulation of private property. The Advanced Property Law seminar, which will be taught in Fall 2003 by Professor Wyman, examines contemporary debates about property using a range of legal, historical, and philosophical materials. Among the topics students explore are the classic rightsbased and utilitarian justifications for property, and the contemporary use of these theories. Throughout the seminar, students apply such theories to current debates in areas such as environmental and land use law, as well as intellectual property law.

Seminar on Community Development Law

This seminar, taught by Adjunct Professor Tesdell, introduces students to major policy and legal issues related to housing, economic development, and development finance activities of community-based organizations. It examines such recent legislative initiatives as creating empowerment zones, altering the Community Reinvestment Act, and capitalizing community development financial institutions. In simulation exercises, students grapple with policy concerns raised in class as they negotiate community control of resources, draft restrictions on the use of housing, design and create corporate structures, deal with regulatory constraints, and debate adoption of various corporate forms. Students learn and apply the legal skills of the corporate, tax, and real estate transactional and regulatory lawyer.

Seminar on Land Use, Housing, and Community Development in New York City

This seminar, co-taught by Professor Schill and Adjunct Professors Gerecke and Salama, analyzes the roots and consequences of urban distress, and assesses federal, state, local, and community responses to urban distress. It reviews initiatives to build housing and commercial projects in low-income communities and analyzes several aspects of these initiatives, including policy underpinnings, real estate financing, the role of subsidies, community participation, legal procedures for undertaking various land use actions, environmental review processes, and legal challenges to these projects. Students work together in groups to provide research and policy analysis for local community- based organizations. Last year, for example, students analyzed proposed reforms to the city’s land disposition policies for New York City Deputy Mayor Dan Doctoroff; explored how to legalize or enforce the building code against illegal residential dwellings in New York for Asian Americans for Equality; evaluated the city’s tax lien sale process for New York City’s Housing and Preservation Department; examined a new tenant cooperative initiative of the city’s Third Party Transfer Program for Neighborhood Restore; and assessed housing preservation in the financial district for New York City Councilman Alan Gerson.

Clinics

To put what is learned in foundational courses, seminars, and colloquia to the test, many students take one or more of the Law School’s clinical courses.

Environmental Law Clinic

The Environmental Law Clinic, co-taught by Adjunct Professors Chasis and Goldstein, involves students in public interest environmental litigation and policy initiatives in the New York City office of the Natural Resources Defense Council (NRDC), one of the nation’s leading public interest environmental groups. Students recently have worked, under the close supervision of NRDC attorneys, on projects involving protection of New York City’s drinking water, global fisheries, energy efficiency and conservation, new source review of proposed power plants, the Everglades National Park and Florida Bay, mercury contamination, lead abatement, and environmental justice litigation. Students attend a weekly NRDC seminar to review and discuss a range of cases and projects being undertaken by the organization.

[SIDEBAR: Environmental Law Clinic]

International Environmental Law Clinic

The International Environmental Law Clinic engages Law School students in major projects exploring international environmental issues, such as climate change, environmental law reform in developing countries, biodiversity protection, resolution of international water conflicts, public access to environmental information, and controls on genetically modified organisms. The clinic places students with public and non-profit clients, including U.N. organizations, developing countries, international and domestic environmental groups, and international development banks. Students research and prepare legal briefs, position papers, and law reform strategies for the negotiation and implementation of international and regional environmental agreements and domestic law efforts to ensure sustainable development. The clinic is linked to the International Environmental Law course, which provides students with a grounding in the basic elements of international environmental law and a forum to explore cross-cutting issues in the field. Students have an opportunity to share and discuss with other students the insights they have gained through their client work.

[SIDEBAR: International Environmental Law Clinic]

Community Economic Development Clinic

NYU School of Law is pleased to introduce a new clinic on community economic development, taught by Professor López. The clinic responds to the growing recognition that a wide variety of lawyers now find themselves dealing increasingly (some say, inescapably) with economic development work, but lack the training and tools to address the issues such work poses. The clinic will address that gap through a classroom component in which students will study theories about and actual dynamics of political economies; the degree to which many familiar and notable development initiatives characteristically reflect and respond to the needs and aspirations of low-income, of color, and immigrant communities; how lawyers and other problem solvers (and the offices, organizations, coalitions, and networks of which they are a part) might conceive of and follow through on their work to help shape future initiatives responsive to these concerns and aspirations; how the use of sophisticated empirical research might inform and make accountable public, private, and mixed ventures (particularly in terms of promoting social wealth, equality, and civic participation); and the problem-solving practices of all those (including lawyers) involved in community economic development work. Students will regularly participate in simulated exercises designed to identify and enhance those ideas, skills, and sensibilities central to community economic development practice.

The classroom component will be supplemented and enriched through fieldwork in which students will work on such projects as evaluating whether, and influencing how, empowerment zones and redevelopment proposals accountably respond to community needs; assessing how best to incorporate minority, immigrant, and exoffender populations into neighborhood, metropolitan-wide, and regional planning processes; assisting in the enforcement of laws governing access to capital; and providing advice and counsel to small and micro-businesses. The clinic will work closely with the Center for the Practice & Study of Community Problem Solving, which López recently founded at NYU School of Law.