From Top-down Environmental Law To Bottom-up Land Use Strategies

The advent, beginning roughly in 1992, of local environmental law is adding expansive bottom-up land use strategies to top-down environmental law: local strategies that now constitute an accepted area of practice and scholarship.[1]

Critics of any attempt to solve the problems of sea level rise and climate change at the local level have a point: this is a global matter with national implications and should be addressed through top-down national strategies, not left to the vagaries of local initiatives. The last two decades, nonetheless, demonstrate the wisdom of enabling, encouraging, and guiding local governments to solve environmental problems at the ground level, through their delegated zoning, land use, home rule, and police power authority.

This issue is further explored in my article, In Praise of Parochialism: The Advent of Local Environmental Law, as well as in Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development.

National environmental policy emphasizes the central role of the federal government as the standard-setter and steward of a healthy environment. This focus on the responsibility of the national government and its various and uneven collaborations with the states all but obscured the role of local governments in environmental protection during much of the past two decades. While federal agencies have successfully reduced pollution that emanates from point sources, such as smoke stacks and water pipes, most environmental damage today is caused by nonpoint source pollution resulting from land uses that are the legal responsibility of municipal governments to regulate. Federal attempts to influence local regulatory prerogatives have been thwarted by a variety of legal, political, and practical obstacles.

Meanwhile, there has been a remarkable trend among local governments to adopt laws that protect natural resources and environmental functions. These local environmental laws take on a number of forms. They include local comprehensive plans expressing environmental values, zoning districts created to protect watershed areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural resources such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. The Land Use Law Center’s database, Gaining Ground, contains over 2000 local ordinances, many of which are adopted to protect local environmental resources.[2] The purposes of these laws are to preserve natural resources from the adverse impacts of land development and to control nonpoint source pollution. In creating these controls, local governments have used a variety of traditional and modern powers that their state legislatures have delegated to them.

This powerful trend at the grassroots level of environmental policymaking and regulation presents an opportunity to revisit the national approach to environmental protection and to create a more integrated system that incorporates the ability of local governments to protect the public from the perils of pollution and environmental degradation. This has become even more evident as we learn how the shape and function of human settlements relates to mitigating, adapting to, and managing climate change. Immediate changes in land use laws and settlement patterns can achieve significant results.  Many urban communities are responding positively by adopting higher density, mixed-use zoning, implementing transit-oriented development plans and ordinances, and using many other techniques to accommodate these changing market forces in a way that will reduce vehicle miles travelled and per capita GHG emissions.  As further evidence of the importance of these changes to managing climate change, the Intergovernmental Panel on Climate Change (IPCC) is adding a chapter to its Fifth Assessment Report on Human Settlement, Infrastructure, and Spatial Planning.

Books and articles on climate change routinely move from the top toward the bottom, seldom settling on the local level. Local governments are largely irrelevant when the topic is cap-and-trade or carbon taxation: initiatives that are desperately needed to solve the problem of a rapidly changing climate and require action at the federal or state level. Local governments are anything but irrelevant, however, when the subject is land use and the goal is to reduce vehicle use, the source of much of the Greenhouse Gas (GHG) emissions that cap-and-trade and carbon taxes aim to limit. With the atmosphere now polluted with 400 parts per million of carbon dioxide, the role local governments can play in reducing carbon dioxide emissions is becoming more distinct.[3] A recent study, in fact, predicts 40% less driving in LEED-ND neighborhoods.[4] The Land Use Law Center recently completed a Technical Guidance Manual that allows local governments to translate LEED-ND credits and prerequisites into local planning, zoning, and land use regulations, which will enable them to create more sustainable neighborhoods with less driving and more energy conservation as well.[5] In fact, without understanding and utilizing the power of local governments to control land use, to engage with regional and national transportation planning, and to create energy-efficient buildings and environments, reducing vehicle miles travelled, energy consumption, and carbon emissions will be difficult to achieve.

The same can be said for creating resilient communities and preparing for natural disasters, particularly the flooding that caused most of the devastation when Sandy shattered neighborhoods along the east coast and Katrina flattened development in the Gulf Coast. Disaster management involves local governments, aided by FEMA maps and funding, preparing comprehensive plans for development that can withstand and recover from catastrophic events. Those plans can identify special hazard zones by incorporating revised FEMA maps and control development in those areas using a variety of traditional local land use tools. These include flood control, storm water management, wetlands and watershed protection, transfer of development rights, conservation easements, and other techniques developed over the past two decades in response to increasing threats to local environmental resources. It is hard to imagine, in fact, how the federal government could orchestrate disaster preparedness and recovery without engaging these critical local land use strategies.