Comparative local government law in motion: how different local government law regimes affect global cities' bike share plans.

Author:Rodriguez, Daniel B.
Position:II. Typology of Different Local government Law Systems B. The Local Government's Relationship with Other Local Governments through Conclusion, with footnotes, p. 153-191
  1. The Local Government's Relationship with Other Local Governments

    Local government law creates a system within which cities operate. That system must regulate the relationship between the local government and the state government located "above" it. The preceding section reviewed the different manners employed by discrete legal systems to structure that relationship. However, that is not the only inter-governmental relationship a local government law system must structure. Once a legal system recognizes local governments--i.e., entities smaller than the overall state system--it is also pressed to regulate the relationships among those smaller entities. Hence in this section, we will review varied patterns that legal systems adopt for structuring such interactions. (117)

    Different patterns of relationships among local governments may exist, separately or in tandem, depending on the manner in which the legal system fragments local powers. First there is the inevitable fragmentation of space between legally identical local governments, each governing its own separate space. Further fragmentation might be added if the system allows multiple local governments, distinct in their legal status and powers, to cover the same space. If multiple governments are responsible for the same area, they will differ in their geographical scope (one government will cover a larger area encompassing the smaller area covered by the other), in their roles and powers (one government will hold general powers while the other will hold specific powers), or in both. Consequently, different local government law systems will be characterized by three distinct forms of inter-local interactions: between cities, between cities and governments of a broader (yet still sub-state) geographical scope (e.g., regional governments), and between cities and special purpose governments. This section reviews, in order, the varying contours jurisdictions might draw for each of these three types of interactions.

    By definition, a jurisdiction that allows for local government that is smaller than the jurisdiction itself creates fragmentation. The first, and inevitable, form of fragmentation is the splintering of space between separate yet legally identical local governments--i.e., cities. The resultant relationship between the various cities, particularly neighboring cities, is the focus of much economic, political, and legal discussion among academic commentators, and for good reason. (118) This Article does not pretend to truly engage that discussion. For the Article's purposes, suffice it to state that in a system where the state level enjoys the power to legally define the local--as is true in almost all existing empowerment models reviewed earlier--the state government sets the rules for this relationship between the different locals as it defines all other local powers. That is to say, since the state empowers the city, the state decides which powers to compete or cooperate with other cities the city can exercise.

    This decision dictates the specific pattern the first of the three forms of inter-local interactions, that between cities, will assume in a given local government law system. Specifically, it determines to what extent will that pattern be characterized by coordination. The architecture of the state-local relationship, especially in systems closer to the weaker pole of local empowerment continuum, institutes an asymmetry between the empowerment to engage in inter-local competition on the one hand, and in inter-local coordination on the other. Any state grant of a specific power to the city inevitably contains the ability, maybe even the necessity, to compete with other cities exercising that same power. In the absence of explicit state-created curbs on such inter-city competition, (119) the power to engage in it is assumed, or, more accurately, built-into the specific local power to act.

    In contrast, the ability to cooperate and coordinate with other cities is not a component of the award of specific local powers. Rather, it must be awarded separately. For inter-city agreements and forums for coordination to exist, the legal system must adopt a direct approach towards them. (120) Three options present themselves: a legal system may authorize inter-city agreements and coordination arenas; it may incentivize the city to enter them; and it may even force them on the city.

    In the United States, most states explicitly authorize local governments to enter inter-local agreements. (121) Once permitted by the state, such agreements also enable cities to create forums for broader inter-local cooperation. Thus, for example, in the Washington, D.C., area, local governments within the District, in suburban Maryland, and in northern Virginia entered inter-local agreements in 1957 to form the Metropolitan Washington Council of Governments to facilitate cooperation. Membership of the association now consists of three hundred elected officials from twenty-two local governments, the Maryland and Virginia State legislatures, and Congress. (122)

    A jurisdiction can go beyond such a permissive approach towards inter-local agreements and cooperation and actively promote it. Local government law systems can incentivize cooperation by empowering cities to enact policies in inter-city contracts or bodies that they are unable to pursue on their own. Since, in such a system, the city is awarded more authority when acting with others than when acting alone, it is more likely to initiate, or agree to, cooperation. An example is found in French law, which enlarges the scope of local entities' authority to define priorities in the fields of urban transportation, commerce, and more, when adopting a joint plan. (123) French law also forces the national government to coordinate its projects with inter-local cooperative bodies--but not with individual localities. (124) Another example is presented by federal American laws conditioning federal grants for transportation on the formation of regional planning boards in metropolitan areas. (125)

    Such an incentive-based system goes beyond simply permitting agreements in an effort to stimulate inter-local cooperation. Still, it is not particularly aggressive in its pursuit of that goal. The most proactive approach towards inter-local cooperation between cities a local government law system may adopt--beyond permission and incentive--does not leave the decision whether to create these cooperative bodies to the localities themselves. Rather, the state will create the forum by law and mandate that the relevant localities participate. French law has recently done just that: it created a special regional coordination body for local governments in the Paris area, the Metropole du Grand Paris, which will start operating in January 2016. (126)

    When adhering to this latter approach the state imposes some degree of inter-local coordination; yet still, it does not interfere with local powers. Actual cooperation is still dependent on choices made by existing, traditional, local governments. In other words, the pattern of fragmentation remains based on cities alone: no non-city body is awarded independent powers. Many jurisdictions, however, go beyond the typical local governments when dividing spatial powers, and grant powers to separate, non-city bodies. To deal with the fragmentation wrought by the presence of disperse neighboring local governments, they establish autonomous regional bodies encompassing all of these neighboring governments and governing the region in its entirety. (127) Paradoxically, this cure to fragmentation adds another layer of governance whose relationship with the traditional fragmented local governments (i.e., cities) must be regulated. Jurisdictions must contend with a second form of substate, inter-local, relationships in which the local government is now engaged (the first being the inter-city relationships just reviewed). This relationship between the city and the regional body is molded by many factors, but key among them is the nature of the regional body of which three types can be identified.

    First, in some jurisdictions regional bodies are mere branches of the state government, in which case the relationship between the city and the regional body is regulated just as the city-state relationship. An example of a purely administrative regional body, appointed and managed by the state government, is the Mexico City Metropolitan Area: La Zona Metropolitana de la Ciudad de Mexico (ZMCM). ZMCM covers forty-one municipalities, including the city of Mexico City--the Distrito Federal--and adjacent localities situated in two other provinces. It is responsible for planning and delivering major inter-jurisdictional services--e.g., highways, airports, and water. (128) Regardless, like all of Mexico's fifty-six metropolitan areas, it is a mere conduit for implementing federal policies in these fields--it is part of a local government law system that disempowers all forms of the local in favor of the state.

    Conversely, the regional body may wholly reflect the local, which appoints its members and controls it. In such a case, the regional body, awarded new powers by the state, augments the substantive and geographical sphere of control of the local government. That characterization of the regional body as empowering the local may be slightly misleading, however, since often the body strengthens one local government--normally, though not always, that of the region's central city--at the expense of others. Consider the case of regional bodies in Quebec. Each of the province's "urban agglomerations" covers a central city and its surrounding municipalities. (129) Agglomeration council seats are distributed among localities in accordance with population size (130) and hence the central city is assured dominance. (131) Montreal holds eighty-seven percent of the votes in the urban agglomeration of which it, along with...

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