Over the past two decades, some coherence in the federal environmental legal system has been achieved, but climate change now demands a stronger legal framework ensuring that federal, state, and local agencies work together to leverage available resources. Despite this imperative, recent legislation in North Carolina prohibiting the State Coastal Resources Commission from defining sea level rise for regulatory purposes is a serious setback.   In a related move, Virginia’s legislature insisted in removing all references to global warming and sea level rise from legislation that provided funds for flooding and reconstruction work in the state.

The topics covered in this blog post are based on my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, and Katrina’s Lament: Reconstructing Federalism.

The confusion in the American legal system regarding which level of government decides environmental and land use issues transcends the current battle over regulating shale gas exploration. From responding to natural disasters, managing stormwater, promoting on-site generation and renewable energy, to shaping human settlements to mitigate and adapt to climate change, local governments can play a critical role in achieving state and federal policy objectives. They can attack climate change at several strategic points, using land use planning and regulation to reduce CO2 emissions from buildings and personal vehicles, promoting renewable energy, enhancing the sequestering environment, and properly regulating coastal development and rebuilding.

Recent progress by local governments in this arena is encouraging and illustrates what can be done to harness the legal powers of cities, towns, counties, and villages to solve these problems. It also demonstrates that there is a legal system in place that can be used and expanded that is consistent with current practice, economic realities, or political sensibilities. As such, it may stand a better chance of attracting political support than strategies that impose untested burdens on previously unregulated markets. The number of local governments making meaningful progress, however, is a small fraction of the total. Why is this so? What has made some aggressive and successful, while others remain on the sidelines of this critical race with global warming? How can the positive examples of the few be used to encourage similar initiatives by the many?

These questions raise another: how can all three levels of government best be engaged in protecting their interests and using their legal authority and resources to engage these critical issues – issues that affect them all? A national framework of law is called for, one that is designed and employed as the organizing force for positive change in developing a flexible and integrated approach to climate change mitigation and adaptation and to promoting sustainable development. This is necessary to avoid wasteful duplication of effort, unhealthy competition among levels of government and sectors, and unnecessary opposition to needed reform. Such a framework is also necessary to capture and leverage the competencies and resources of federal, state, regional, and local governments and the many stakeholders whose futures depend on our legal system to effectively address the alarming consequences of climate change. The importance of creating such a framework can be illustrated clearly by drawing on several of the issues discussed in this post:

  •   What level of government is responsible for listing and researching the impacts of hydrofracking and which of these impacts should be regulated at each level?
  •   How do communities best prepare for and recover from natural disasters like Sandy using not only zoning and land use regulations, but stormwater management, wetlands and watershed protection, flood plain regulation, federal maps, state technical assistance, and federal funding?
  •    Regarding coastal development generally, how does the local land use planning and regulatory role fit with the critical role played by state and federal agencies?
  • In a nation struggling to reduce its dependence on imported fossil fuels and keen to promote energy conservation, how can the federal and state governments help localities encourage energy savings in residential and commercial buildings, which consume over 40 percent of the nation’s energy?
  • How can these higher levels of government encourage localities to reform their zoning to encourage the development of district energy systems and renewable energy facilities?
  •    How can local land use planning and regulation be harnessed to create human settlements that mitigate and adapt to climate change? How can federal transportation planning and local land use planning be integrated to create transit oriented development and walkable communities?
  •   Given the importance of capturing CO2 through biological sequestration to control GHG emissions, is there a role for the federal or state governments in helping localities protect and expand the sequestering environment?

Progress toward creating a federal framework of laws can be observed, if one looks closely enough. The Coastal Zone Management Act of 1972 created a nested hierarchy of decision-making at the federal, state, and local level regarding land use planning in coastal areas. The Disaster Mitigation Act of 2000 is a federal statute that encourages states to develop disaster preparedness and recovery plans and provides incentives if local governments are involved in planning. The Federal Emergency Management Agency (FEMA), has adopted a comprehensive National Flood Insurance Program (NFIP), which requires local governments to adopt flood plain protection zoning laws to regulate development in high risk areas designated by FEMA in order to qualify local property owners for federal flood insurance. However, much power still lies at the local and state levels in dealing with  storm surges and sea level rise in coastal areas, and not every state has been pursuing a legal framework that is particularly amenable to addressing “sea level rise.”

For example, after Columbia, N.C. was almost destroyed by Hurricane Irene, the town passed aggressive legislation elevating residences above projected flood levels.  About half of the 112 coastal communities in the state require  buildings to be at least 2 feet off the ground, but Columbia raised its requirements to 3 feet.

Columbia’s decision sparked a strong debate about the use of sea level rise projections in making regulatory decisions. An interest group emerged called NC-20, composed of economic developers and political activists representing the state’s 20 coastal counties. The NC-20 group took particular offense to what they consider the unsound science of sea level rise.

After the State Coastal Resources Commission recommended that the state legislature project a sea level rise of 39 inches by 2100, NC-20 countered that the figure should be eight inches.  The group lobbied the legislature and succeeded in the passage of the Coastal Management Policies Act in August 2012, which prohibits the Commission from defining sea level rise for regulatory purposes.   In a related move, before legislation providing state funds for coastal flooding projects could be passed in Virginia, all references to global warming and sea level rise had to be removed from the proposal.

Yet, encouraging progress is being made on other fronts. As the New York courts resolve the issue of local control over shale gas exploration, the Department of Environmental Conservation is considering a regulation that requires permit applicants to demonstrate compliance with local comprehensive plans that focus on hydrofracking. Federal transportation planning at the metropolitan area level is carried out by Metropolitan Planning Organizations, regional organizations involving local government representation that allocate federal funds to worthy projects. Through the Stormwater Management Program, EPA works with local governments that maintain separate stormwater sewer systems so that the local government controls non-point sources of pollution of surface waters, controls that are difficult for a federal agency to effect on its own. Although the basic shape of a federal legal framework is somewhat visible in these initiatives, it is not strong enough to support the level of effort now needed to respond to the environmental and land use issues facing the nation.

A more intentional policy of integrating the efforts of all levels of government is needed for the level of problem solving required. Instead of designing systems that respond to particular problems in the moment, we need an enduring commitment to integrated federal, state, and local problem solving. Such a commitment would, for example:

  •   Foster a comprehensive approach at the federal, state, and local levels to acknowledge and combat the rapid sea level rise occurring as a result of global climate change.
  • Lead to an Energy Conservation Zone Program where local governments receive technical assistance to identify district energy zones and where funding is provided to them and property owners to reduce energy use in those areas by up to 80 percent.
  •   Result in the creation of a National Biological Sequestration Program that would identify the priority areas for expanding biological sequestration of CO2, assist local governments in preserving the open space resources in those areas, and perhaps create credits for participating landowners that can be sold to high emitting industries.
  •    Employ the federal transportation planning process to promote not only transit oriented development around transit station areas, but also more walkable and sustainable neighborhoods in preparation for the fundamental changes in demographics that are underway.
  • Clearly identify the environmental and public health impacts of hydrofracking, fund research where adequate scientific information is unavailable, and be certain that each impact is effectively regulated by the appropriate governmental agency.