Local regulation of natural resources: efficiency, effectiveness, and fairness of wetlands permitting in Massachusetts.

• Author: Payne, Cymie

1. INTRODUCTION

   In the last third of the twentieth century, governance of the environment, both natural resources and pollution aspects, has become a central public concern. Despite the popular tendency to blur these two sets of problems under the encompassing rubric of "environment," they raise distinctly different issues of design and critique in respect to appropriate legal management tools. The most comprehensive critiques of environmental agencies and laws have been directed at the pollution-focused Environmental Protection Agency, along with the Clean Air Act(1) and similar statutes.(2) However, the issues raised by the second branch of environmental law, that affecting natural resources, are quite different, and the questions that must be asked address different potential failures. The history of land and water governance is closely tied to land use law and property rights, and political theories of federalism and localism are traditionally important in this area, as is the competition between citizens with different interests. Ecology, not technology, is the dominant science, with the implication that technology-focused command and control regulation is essentially irrelevant to natural resource governance.

   Although this Article attempts to answer questions about institutional design, it is important to stay focused on the substantive goals we are trying to achieve in governance of sensitive lands.(3) Law, policy, and institutional design must all strive for effective conservation of biodiversity, effective preservation of open space, and equity where circumstances require trading off private or public interests. It is a basic tenet of the democratic process to preserve minority interests, serve equity best, and preserve political legitimacy and legality.(4) The rise of the Wise Use and County movements attest to the cost of ignoring this principle.(5) Barton Thompson has suggested that, while the Wise Use movement is funded and directed by industry, failures to address rural citizens' real concerns about land and water management have created a responsive public to support the movement.(6)

   Massachusetts has designed a system of wetlands regulation which appears to have achieved a measure of conservation while respecting core democratic principles. The key is the balance of statewide supervision with local implementation. The centerpiece of the system is the conservation commission, an appointed, unpaid board of five to seven citizens who are responsible for local natural resource policy and for permitting activities in the town's wetlands.(7) The local communities, the 341 cities and towns of the Commonwealth, review applications for permission to alter jurisdictional wetlands, collect data, communicate law and policy to their communities, plan open space in their jurisdiction, enforce wetlands law violations both criminally and civilly, and pass local ordinances to further regulate wetlands.(8) The state legislature sets the basic governing laws, notably, the Conservation Commissions Act(9) and the Wetlands Protection Act.(10) The state environmental agency hears administrative appeals of local permit decisions, issues regulations, and provides policy, technical expertise, planning for regional issues, and educational materials to the localities.(11)

   Local governance of resources, like Massachusetts's, presents a conundrum: in its traditional American form, of which zoning is the quintessence, localism is heavily criticized for protecting local interests to the disadvantage of larger public interests.(12) On the other hand, our political culture gives great value to the town meeting form of participative democracy that still persists in New England. Both the Environmental Justice movement and the Wise Use movement, anticipating very different outcomes, favor laws that give local communities greater self-determination.(13) The larger sphere of the global environmental movement also extols the virtues of local control of natural resources.(14) However, many believe that minority interests are better represented when we regulate at the state or federal level, in James Madison's words, "Extend the sphere [of society] and ... take in a greater variety of parties and interests."(15) This Article will investigate how well the Massachusetts approach, which balances local participation within a state structure, achieves the (sometimes antithetical) democratic ends of legitimate majoritarian government and rational public-seeking government.

   Besides the standard critiques of localism per se, any proposal for a modern environmental law must withstand the same efficiency analysis that has been directed at command and control regulation such as the Clean Water Act (CWA).(16) These critiques condemn the high public cost of courts and agencies, information gathering and processing, the high private cost of compliance, the ineffectiveness of incentives, and governmental failure in carrying out regulatory intervention. Government failures may, in turn, be due to information problems and incentive problems. Information may be limited or costly. Incentives may be distorted or inadequate, such as incentives for officials to seek their self-interest rather than the public interest, or to respond to pressure from private economic interests.(17)

   Jon Kusler raises a somewhat different set of concerns that affect the choice of wetlands regulatory systems.(18) One issue is limitations on the authority of local and state governments to regulate through their inherent powers and those powers delegated to them.(19) Another is political acceptability, an important consideration in passing and implementing regulation.(20) Funding for the apparatus of regulation is an important element.(21) Regulatory systems for wetlands require expertise in planning, wetlands science, and engineering, not to mention law.(22) Kusler observes that "a strong local role" is important, particularly for inland wetlands, in part because of the opportunity to incorporate wetlands regulation into community land and water planning.(23)

   Implementation of state permitting through local commissions avoids some of the problems exposed by critics of zoning abuses. The most important of these is the charge of exclusionary zoning, where a community seeks to shift undesired development to another community.(24) The subject could be low income housing, certain kinds of industry, or toxic waste. Where, as with Massachusetts wetlands regulation, the state sets a unitary standard, localities cannot create different standards; they can only apply them differently. Discriminatory application can be appealed as a substantive or procedural matter to the state. The only alternative route to differential local treatment is if a town has the clout to affect the state agency decision makers or the state legislature, where they are subject to limiting factors of scrutiny and pressure from other constituencies.

   The literature on sensitive lands management does not squarely address potential abuses of this exclusionary zoning type. To the extent that the goals of wetlands regulation are to preserve public interests such as flood protection, water purity, and species diversity, conflicts with other public interests such as storage of toxic wastes may be reasonably resolved in favor of wetlands. The potential for abuse arises when there is a pattern of wetlands law enforcement that shifts burdens to disadvantaged communities, or when applications for certain kinds of development, for example, an affordable housing project for the poor, are treated discriminatorily. To my knowledge, there have been no accusations of this kind of discrimination by conservation commissions, but it may be a topic that warrants further research.(25) The ability of the permit appeals process to deal with such abuses is discussed in Part IV. Another point worth mentioning is that, to the extent that wetlands regulations are based on objective scientific determinations, they are quite different from zoning regulations.(26)

   The most important criteria are rooted in three questions any citizen might ask. First, is this policy democratic? Second, is it efficient? Third, does it get the job done? In Part II, I address the question of efficacy by reviewing the status of wetlands in Massachusetts and draw conclusions about the effectiveness of conservation commissions. I also sketch the social and economic context of the state. In Part III, I describe the history and function of conservation commissions and I analyze their relationship to relevant laws, including state and federal statutes. Part IV answers the questions of democracy and efficiency by looking at interest groups involved in wetlands policy in the state, considering the nature of public participation, and applying public choice theory. Part V concludes with my assessment of whether this is an appropriate model for natural resource regulation.

   Local governance of natural resources is effective, efficient, and fair when it is located within a state (or possibly national) statutory regime. Individual landowners have strong interests in natural resources, land, water, wildlife, and plants, that are fundamentally at odds with certain public interests. Conflicting interests may be the interest of landowners in excluding the general public versus the public's interest in access to beaches; or the interest of individuals and corporations in resource-consuming businesses such as logging, fishing, and real estate development versus the public interest in preserving open space and wildlife populations. Regulation seeks to balance these interests. Local regulation favors the landowner, who has influence in the community where his or her property is situated. State and federal regulation tends to incorporate the concerns of the general public, whose individual members often do not live in the jurisdiction where the resource is located. State...