Changes spark interest in sustainable urban places: but how do we identify and support them?

• Author: Nolon, John R.
• Position: 40th Anniversary Symposium

Introduction I. The Steady Evolution of Urban Law A. From Public Housing and Urban Renewal to Sustainable Development B. Why Sustainable Communities Are Important 1. Climate Change Mitigation 2. Demographic and Market Shifts II. State and Federal Sustainable Development Strategies A. New York State Programs B. The Federal Sustainable Communities Initiative III. Toward a Certification Program A. Why Is Certification Needed? B. Progress on Certification to Date: Nine Programs 1. New Jersey: Sustainable Jersey 2. Massachusetts: Commonwealth Green Communities 3. Florida: Green Local Government Standard 4. Virginia: "Go Green," Virginia's Green Government Challenge 5. Georgia: Atlanta's Certified Green Communities 6. Connecticut: Menu of Municipal Climate Actions and Resources 7. Minnesota: GreenStep Cities 8. ICLEI STAR Community Index 9. New York Climate Smart Communities Certification System: A Work in Progress IV. Moving Certification Beyond Municipal Behavior Conclusion: Toward Implementation INTRODUCTION

Changes in climatic and demographic trends are sparking renewed interest in cities generally and sustainable communities particularly. On the one hand, residents and workers in denser, mixed-use neighborhoods served by transit have half the carbon footprint of those in spread-out suburban areas. On the other hand, many of the smaller households that characterize the nation's growing population prefer to live in precisely those compact, mixed-use neighborhoods. In New York, these changes align with several new state policies that encourage cities and towns to reduce carbon emissions, reduce vehicle travel, create sustainable buildings and neighborhoods, and preserve the landscapes that sequester nearly twenty percent of the nation's carbon emissions. These three shifts--climatic, demographic, and political--create opportunities for older cities and towns to revitalize themselves, while creating new roles for smaller, rural communities. After describing these trends, this Article reviews the nascent movement to certify sustainable communities, noting that existing programs measure mainly the behavior of municipalities as building and vehicle fleet owners and educators of the public. These certification systems need to expand to measure how well local governments use their legal authority to control private sector development so that the millions of new homes and billions of square feet of commercial buildings needed to serve the growing population are sustainable. This Article describes the creation of a certification system and policy initiative that measure and reward municipal planning, regulation, and incentives that ensure the sustainability of future development in areas that should host much of the expanding population as well as those areas where conservation should predominate.

1. THE STEADY EVOLUTION OF URBAN LAW

   1. From Public Housing and Urban Renewal to Sustainable Development

      New York's urban policy arguably began in 1926 with the passage of the State Housing Law. (1) At the federal level, the beginning can be pegged to the adoption of the National Housing Act of 1934. (2) Thus began nine decades of experimenting with programs to create viable human settlements in the United States. (3) Congress launched urban renewal under the Housing Act of 1954. (4) The next year, the New York state legislature adopted the Mitchell-Lama Program offering privately organized development companies subsidies to provide middle-income housing. (5) About the time that the first issue of the Fordham Urban Law Journal was published, (6) New York was creating a large-scale regional planning organization with the passage of the Adirondack Park Act of 1972. (7) Two years later, Congress consolidated numerous urban programs that had enjoyed limited success into the Community Development Block Grant program, allocating funds on a formula basis to large cities and channeling funds to small cities through state agencies or inter-municipal consortia. (8)

      Tracking the ebb and flow of federal and state policy regarding housing, urban redevelopment and planning, mortgage finance, and infrastructure funding would require volumes, the study of which would reveal constant attempts to stay current with shifts in demographic patterns, economic trends, environmental challenges, and public opinion. Today, government officials at the federal and state level are working to adapt to new challenges. (9) Notable initiatives include the cooperative efforts of the United States Department of Housing and Urban Development (HUD), Environmental Protection Agency (EPA), and Department of Transportation (DOT) to create sustainable regions through the Sustainable Communities Initiative (10) and New York State's recently adopted Cleaner, Greener Communities program which is funding the creation of sustainability plans for ten newly established regions that will guide the expenditure of state funds obtained from the auction of emission allowances under the Regional Greenhouse Gas Initiative. (11)

      Urban law has consistently tackled tough issues. Today, however, the stakes are as high as they have ever been as local, state, and federal governments face the sobering reality of climate change; they are struggling to lighten their carbon footprints, create safe and resilient settlements, and use diminished finances as wisely as possible. Changes in climatic and demographic trends are sparking renewed interest in cities generally and sustainable communities particularly. (12) On the one hand, residents and workers in denser, mixed-use neighborhoods served by transit have half the carbon footprint of those in spread-out suburban areas. (13) On the other hand, many of the smaller households that characterize the nation's growing population prefer to live in precisely those compact, mixed-use neighborhoods. (14)

      In New York, these changes align with several new state policies that encourage cities and towns to lower carbon emissions, reduce vehicle travel, create sustainable buildings and neighborhoods, and preserve the landscapes that sequester nearly twenty percent of the nation's carbon emissions. (15) These three shifts--climatic, demographic, and political--create opportunities for older cities and towns to revitalize themselves, while creating new roles for smaller, rural communities.

      After describing these trends, this Article reviews the nascent movement to certify sustainable communities, noting that existing programs measure mainly the behavior of municipalities as building and vehicle fleet owners and educators of the public. These certification systems need to expand to measure how well local governments use their legal authority to control private sector development so that the millions of new homes and billions of square feet of commercial buildings needed to serve the growing population are sustainable. The Article begins with an examination of what such a certification system would measure and how it would be implemented. The objective is to outline the general contours of a program that measures and rewards municipal planning, regulation, and incentives that ensure the sustainability of future development in areas that should host the expanding population and the conservation of areas where development should not occur.

   2. Why Sustainable Communities Are Important (16)

      1. Climate Change Mitigation

         About eighty-five percent of U.S. greenhouse gas (GHG) emissions are carbon dioxide, much of which is caused by the buildings and land use patterns that local land use plans and regulations shape and create. (17) Vehicle trips and miles travelled have increased dramatically in the past three decades as development patterns have spread out, consuming land at much greater rates than the rate of population growth. (18) Today, buildings emit thirty-nine percent of the total amount of C[O.sub.2] released in the United States. (19) Personal vehicles are responsible for seventeen percent of total emissions. (20) Current undeveloped landscapes sequester fifteen percent of C[O.sub.2] emissions. (21)

         The Census Bureau reports that the nation's population will increase by 100 million by mid-century, which will require millions of new homes and billions of square feet of non-residential development. (22) "Two-thirds of the buildings in use in 2050 will be built between now and then. How buildings are constructed, how they are arranged on the land, and how human settlement patterns are shaped is critical to our success in curbing the causes of climate change and creating a livable human environment." (23) Because local governments control land development through legally adopted land use plans and regulations, they are integral players in the process of ensuring the sustainability of buildings and communities generally.

         The addition of 100 million people translates into forty million new households, whose members will travel to live, work, and shop in new buildings provided for them, consuming energy on site and en route, and emitting C[O.sub.2] if they travel by car. (24) The construction and operation of new buildings, as well as the vehicle miles travelled by car for daily work, errands, and pleasure, will therefore account for a significant percentage increase in annual energy consumption and C[O.sub.2] emissions by mid-century. If this prospective building and traveling takes place in the spread-out settlement pattern that predominated twenty years ago, these new people will consume huge amounts of energy and emit enormous amounts of C[O.sub.2]. The importance of understanding the human settlement dimension of climate change mitigation could not be greater. The international community has agreed that atmospheric concentrations of carbon should be kept between 350 to 385 parts per million (ppm) to limit increases of global temperatures to no more than 1.5 to 2 degrees Centigrade. (25) In the spring of 2013, carbon dioxide levels passed the...