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Volume 2016, Number 1


Articles

The Neoliberal Turn in Environmental Regulation
Jason J. Czarnezki and Katherine Fiedler

Regulation has taken a neoliberal turn, using market-based mechanisms to achieve social benefits, especially in the context of environmental protection, and promoting information dissemination, labeling, and advertising to influence consumer preferences. Although this turn to neoliberal environmental regulation is well under way, there have been few attempts to manage this new reality. Instead, most commentators simply applaud or criticize the turn. If relying on neoliberal environmental reform (i.e., facing this reality regardless of one’s view of this turn), regulation and checks on these reforms are required. This Article argues that in light of the shift from traditional to neoliberal “substantive” environmental regulation, “procedural” checks are required through regulation and legislation to improve the quality of the market-based and informational neoliberal approaches, including oversight via regulation that ensures accuracy in valuation of natural resources, increases and improves the quality of the information provided by consumers, and requires greater accountability and accuracy from institutions making green claims to consumers.

2016 Utah L. Rev. 1 | (Download PDF)

RLUIPA and the Limits of Religious Institutionalism
Zachary Bray

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about religious institutionalism. But as this Article will show, there are many good reasons to reject an institutional interpretation of RLUIPA. An institutional interpretation of the statute is inconsistent with RLUIPA’s stated purpose, and will create two tiers of religious claimants, thereby providing unnecessary advantages to existing religious institutions while denying those advantages to new religious institutions. Moreover, reading and applying RLUIPA through the lens of religious institutionalism threatens to exacerbate existing problems that surround what is already a very difficult statute. In short, an institutional interpretation of RLUIPA would not fix the statute’s many flaws; rather, it would make a bad statute much worse. 

2016 Utah L. Rev. 41 | (Download PDF)

When Local Governments Misbehave
Shelley Ross Saxer

This Article addresses one of the lingering questions following the Supreme Court’s decision in Koontz  v.  St.  Johns  River  Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. The Article argues that “in-lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regard to a specific project. Accordingly, Koontz’s application should be limited to “the special context of land-use exactions” during a permitting process rather than be extended to all regulatory monetary obligations. 

The Article begins by identifying the various levels of scrutiny applied to land use decisions and shows how these levels are designed to prevent the abuse of power, particularly when actions are exercised at the individualized level. It concludes by suggesting that exactions that result in a permanent physical occupation of real property should be subject to heightened scrutiny. However, only administrative, individualized, monetary exactions, designed to replace a physical exaction, such as the kind involved in Koontz, should be subject to heightened scrutiny to control the potential for abuse. Legislatively determined monetary conditions such as impact fees, but not taxes, should be subject to review under state statutory or judicial standards, which range from a rational basis test to more stringent tests, such as the dual rational nexus test or the Nollan/Dolan test. In the absence of a state standard of review, legislatively enacted impact fees challenged in federal court should be analyzed under the deferential rational basis test for land use regulation. 

2016 Utah L. Rev. 105 | (Download PDF)

Public Participation in Risk Regulation: The Flaws of Formality
Emily Hammond

Dread risks draw significant public attention in both the administrative process and the courts. Yet there are a number of dysfunctions at the intersection of procedures, participation, and agency decision-making regarding such risks. This Article elaborates the participatory dysfunctions for dread risk regulation, considering formal APA procedures as well as casting complexity as a variety of formality. Inspired by recent executive actions for improving participation and incorporating social science insights into the regulatory process, this Article sets a research agenda that spans the fields of risk perception, procedural justice, and administrative law.

2016 Utah L. Rev. 169 | (Download PDF)

 



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