Ashira Pelman Ostrow, Land Law Federalism

• Publication year: 2012

LAND LAW FEDERALISM

Ashira Pelman Ostrow*

ABSTRACT

Land exhibits a unique duality. Each parcel is at once absolutely fixed in location and inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways, and airports physically connect remote areas; networks of buildings, homes, offices, and factories create communities and provide the physical context in which most human interaction takes place. Despite this duality, the dominant descriptive and normative account of land-use law is premised upon local control. In a world where capital and information pass freely across increasingly porous jurisdictional boundaries, few regulatory matters can be cabined within the borders of a single state, let alone a single locality. Thus, despite the mantra of localism, modern land-use law has evolved to incorporate a significant, though undertheorized, national dimension.

This Article develops a coherent national account of land-use law. First, this Article establishes a doctrinal basis and normative justification for federal land-use law, both of which derive from the cumulative effects of local land- use decisions on interstate commerce and the national welfare. Second, this Article develops a theoretical framework through which to analyze the substantial body of existing federal land law. Finally, the Article applies principles of federalism theory to outline a “local-official-as-federal-agent” model of land-use law that harnesses the relative regulatory capacities of each level of government.

* Associate Professor of Law, Hofstra Law School. I would like to thank participants in the 2012 Harvard/Stanford/Yale Junior Faculty Forum, NYU’s Colloquium on Law, Economics and Politics of Urban Affairs, and the University of Minnesota’s Workshop on Energy and the Environment for thoughtful comments on earlier drafts. I would also like to thank Andrew McKinley, Danny Reach, and the staff of the Emory Law Journal for their professionalism and skillful editing, and my research assistants, David L. Schwed and Christopher Barbarello, for their help in preparing this Article for publication. Finally, I would like to thank Yashodra Ramotar, Dr. Adinah Pelman, and Ryan Ostrow for everything else.

INTRODUCTION 1399

1. LOCAL LAND AS A NATIONAL RESOURCE 1404

   1. The Nonfederalization of Land-Use Law 1406

   2. The Cumulative Effects Doctrine 1408

   3. The Cumulative Effects of NIMBY: Beyond the Backyard 1410

      1. Confronting the National Housing Crisis 1413

      2. The Infrastructure Challenge 1416

         1. Energy Security as a National Policy Goal 1416

         2. Process Preemption in Telecommunications Siting 1418

2. FEDERAL LAND LAW: OF MONEY AND POWER 1421

   1. Federal Implementation 1424

      1. Federal Permitting Schemes 1424

      2. Federal Siting Regimes 1425

   2. Local Implementation 1426

      1. Conditional Funding 1426

      2. Conditional Preemption 1429

         1. The Federal-Regulation Model 1431

         2. The Market-Alternative Model 1433

3. LOCAL OFFICIALS AS FEDERAL AGENTS 1435

   1. The Silent States 1437

   2. A National Perspective 1438

   3. Local Tailoring 1440

CONCLUSION 1444

INTRODUCTION

It is hardly unique to describe land as unique.1 In one sense, land is unique because it is immobile; it is, by definition, local.2 Its value is specific to its owner and locational context—its geography, topography, current use, and relationship to surrounding uses and users. Yet the uniqueness of land derives not only from its “localness” but also from its “nationalness”—from the role that it plays in national networks. Each parcel is at once absolutely fixed in

location and inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways, and airports physically connect remote areas; telecommunications towers dotting the landscape facilitate increasingly sophisticated forms of communication; energy infrastructure crosses state and local boundaries to power the nation; and networks of buildings, homes, offices, and factories create communities and provide the

physical context in which most human interaction takes place.3

Despite the expansion of the federal government over the past century, local governments have retained primary authority to regulate the use of land.4

1. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 360 cmt. e (1981) (“A specific tract of land has long been regarded as unique and impossible of duplication by the use of any amount of money.”).

2. Ashira Pelman Ostrow, Process Preemption in Federal Siting Regimes, 48 HARV. J. ON LEGIS. 289,

   297 (2011).

3. See JOHN R. LOGAN & HARVEY L. MOLOTCH, URBAN FORTUNES: THE POLITICAL ECONOMY OF PLACE

17 (1987) (“[P]lace is indispensable; all human activity must occur somewhere.”); Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1317 (1993) (“Because human beings are fated to live mostly on the surface of the earth, the pattern of entitlements to use land is a central issue in social organization.”); Eduardo

M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821, 829 (2009) (describing land “as an essential component in any human activity that requires physical space”).

1. See, e.g., Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90

   COLUM. L. REV. 1, 3 (1990) (“Land use control is the most important local regulatory power.”); Sara C. Bronin, The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States, 93 MINN. L. REV. 231, 236 (2008) (“[T]he prevailing descriptive and normative view of land use involves, first and foremost, local control.”); Jerold S. Kayden, National Land-Use Planning in America: Something Whose Time Has Never Come, 3 WASH. U. J.L. & POL’Y 445, 449–50 (2000) (finding that local land-use laws continue to enjoy “a near absolute status as untouchable local government prerogatives”); John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365, 366 (2002) (noting a “national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments”); Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 CALIF. L. REV. 837, 839 (1983) (“Land use control in America has always been an intensely local area of the law.”); Daniel P. Selmi, The Contract Transformation in Land Use Regulation, 63 STAN. L. REV. 591, 616 (2011) (“[L]ocal government has retained almost full authority over land use . . . .”); A. Dan Tarlock, Land Use Regulation: The Weak Link in Environmental Protection, 82 WASH. L. REV. 651, 653 (2007) (“The United States has . . . enshrined the idea that land should be controlled at the lowest level of government, if at all.”); Katherine A. Trisolini, All Hands on Deck: Local Governments

   Scholars and policy makers often reject the notion of an expanded federal role,5 even as they recognize that local zoning boards lack the capacity and the incentive to address complex problems,6 such as urban sprawl and affordable housing that are created by the cumulative impact of local land-use decisions.7

   In a world where capital and information flow freely across national and subnational boundaries, few regulatory matters can be cabined within the jurisdictional lines of a single state, let alone a single locality.8

   
   

   In response, modern land-use law has evolved to incorporate a variety of national concerns.9 Federal laws that directly regulate or seek to influence land

   
   

   and the Potential for Bidirectional Climate Change Regulation, 62 STAN. L. REV. 669, 740 (2010) (“[Z]oning and land use remain largely the province of local governments.”); William A. Fischel, The Evolution of Zoning Since the 1980s: The Persistence of Localism § 3, at 4–5 (Sept. 2010) (unpublished manuscript), available at http://ssrn.com/abstract=1686009 (noting that the most remarkable aspect of local zoning is that it has remained local).

2. See, e.g., Bronin, supra note 4, at 262 (“No serious scholar supports an expanded role for the national

   government in traditional land use regulation . . . .”); Eric T. Freyfogle, The Particulars of Owning, 25 ECOLOGY L.Q. 574, 580 (1999) (noting that “[l]and use regulation at the state level is bad enough” and that “[d]irect federal regulation, for many citizens, is simply taking things too far”); Kayden, supra note 4, at 451– 53 (suggesting that the size of the United States, its private-property tradition, and citizen preference for local control cut against national involvement); Catherine J. LaCroix, Land Use and Climate Change: Is It Time for a National Land Use Policy?, 35 ECOLOGY L. CURRENTS 124, 124 (2008), http://elq.typepad.com/currents/pdf/ currents35-16-lacroix-2008-1124.pdf (“It will never be time for an articulated federal land use policy; the tradition of local control of land use is simply too strong.”); Daniel B. Rodriguez, The Role of Legal Innovation in Ecosystem Management: Perspectives from American Local Government Law, 24 ECOLOGY

   L.Q. 745, 751 (1997) (explaining why property owners and local governments resist centralization of land-use regulatory authority); Trisolini, supra note 4, at 740 (arguing that efforts to centralize regulation of land “would likely provoke fierce political opposition, as many consider this a core local function, central to local governments’ ability to maintain autonomy”).

3. Janice C. Griffith, Regional Governance Reconsidered, 21 J.L. & POL. 505, 511 (2005); Alexandra B.

   Klass & Elizabeth Wilson, Interstate Transmission Challenges for Renewable Energy: A Federalism Mismatch, 65 VAND. L. REV. (forthcoming 2012) (manuscript at 42–47), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2012075 (articulating the desirability of federal regulation but noting that federal intervention is politically unfeasible absent a national crisis); Uma Outka, The Renewable Energy Footprint, 30 STAN. ENVTL. L.J. 241, 291 (2011) (noting the merits of federal...