NONPROFIT & PHILANTHROPY LAW eJOURNAL

"Preservation Is a Flawed Mitigation Strategy" Free Download
41 Ecology Law Currents, 2014, Forthcoming
SUNY Buffalo Legal Studies Research Paper No. 2015-008

JESSICA OWLEY, State University of New York (SUNY) at Buffalo - Law School
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The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps?) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges wetland destruction will occur. Instead of preventing wetland conversion, developers compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. This essay urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas, concerns of accountability and democracy arise. Although I focus on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well.

"Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches" Free Download

SAMUEL D. BRUNSON, Loyola University Chicago School of Law
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In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the I.R.S. was to revoke its exemption.

While simple in theory, in practice, the I.R.S. rarely penalizes churches that violate the campaigning prohibition, and virtually never revokes a church’s tax exemption. And, because no taxpayer has standing to challenge the I.R.S.’s inaction, the I.R.S. has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.

This argument makes the normative case that, notwithstanding the I.R.S.’s administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the I.R.S. to begin enforcing the campaigning prohibition. Failing to do so harms the Rule of Law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as Pulpit Freedom Sunday has virtually eliminated the I.R.S.’s search costs, people are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court’s Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.

Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular, and could provoke a backlash against the I.R.S. After making the normative case for enforcement, then, this Article provides a strategy for enforcement that will allow the I.R.S. to explain what it is doing and why to the general taxpaying public, and will further permit the I.R.S. to avoid the appearance of partisanship. Ultimately, enforcement will allow the I.R.S. to responsibly administer the tax law, will permit the question of the prohibition’s constitutionality to get in front of the judiciary, and will demonstrate dedication to the Rule of Law.

"Whistleblower Protection for Missouri Nonprofit Organizations" Free Download

PATRICK WALKER, Lindenwood University
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Nonprofit organizations exist primarily to further the interests of individuals, businesses, and communities who believe and trust in the organization’s mission. At the heart of every nonprofit’s mission is governance: creating systems, structure, and solutions to guide expectations and decision-making that promotes and protects good citizenship in business. Whistleblower policies represent “good governance? for public employees who report illegal or fraudulent activity by an employer, government, or organization, with a set of duties defined by law for employees and employers. While most states have whistleblower laws and policies protecting government and/or private sector employees, Missouri whistleblower protection only extends to public employees. This article will critique the notion of whistleblower protection in general and for Missouri nonprofit organizations, discuss implications of a recent Eighth Circuit Court of Appeals decision in Chavez-Lavagnino v. Motivation Education Training, Inc., and outline a governance conceptual framework for developing whistleblower protection policies in nonprofit organizations.

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About this eJournal

This eJournal distributes working and accepted paper abstracts in the fields of nonprofit law and policy, philanthropy law and policy and related areas of scholarship. Thus, drafts and articles that concern nonprofit corporations, charities, charitable corporations, charitable organizations, charitable donations, charitable foundations, charitable fundraising, charitable solicitation, charitable trusts, philanthropy, private foundations, nongovernmental organizations, tax-exempt organizations, tax-exempt corporations, private clubs, membership clubs and similar topics are appropriate for this journal.

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Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Nonprofit & Philanthropy Law eJournal

ELLEN P. APRILL
John E. Anderson Professor of Tax Law, Associate Dean for Academic Programs, Loyola Law School Los Angeles

EVELYN BRODY
Professor of Law, Chicago-Kent College of Law

JOHN DAVID COLOMBO
Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law

HARVEY P. DALE
University Professor of Philanthropy and the Law, Director - National Center on Philanthropy and the Law, New York University School of Law

DARRYLL K. JONES
Professor of Law, Stetson University College of Law

BEVERLY I. MORAN
Professor of Law and Sociology, Vanderbilt University - Law School

STEPHEN SCHWARZ
Professor of Law Emeritus, University of California, Hastings College of the Law

STEVEN J. WILLIS
Professor of Law, University of Florida - Fredric G. Levin College of Law