Environment in context.

• Author: Weiland, Paul S.

I.

INTRODUCTION

The interrelationship of problems locally requires a holistic understanding prior to the initiation of public policies.(1) Sprawl, crime, the disappearance of open space, lack of adequate affordable housing, gridlock, unequal access to educational opportunities, and urban decay ought not be assessed and addressed in isolation. Incrementalism,(2) a hallmark of governments and their policies, contributes to the existence of these problems and hinders the formulation and implementation of public policies designed to correct them.

There is voluminous literature analyzing these problems at the local level (particularly within metropolitan areas). However, scholars and practitioners disagree about the nature of the problems, their causes, and possible solutions. Differing views are presented by Gerald Frug in City Making, Charles Haar in Suburbs under Siege, and contributors to an edited volume published by the Urban Land Institute ("ULI") entitled Smart Growth. Professors Frug and Haar both have extensive experience as practicing attorneys in addition to their current roles as professors at Harvard Law School. The contributors to the ULI volume are planning and policy practitioners.

City Making is the most theoretical of the three books.(3) A lesser proportion of Suburbs under Siege is theoretical; however, Professor Haar concludes that the events analyzed in the book provide evidence to support certain theoretical propositions and rebut others.(4) The focus of Smart Growth is upon the development of "smart growth" as a concept in planning and law.(5) Contributions to the volume are descriptive but not theoretical.

In this review, I examine the approaches of each book to local problems with particular reference to the environment. None of the books is about environmental law and policy per se, and the only book that prominently features environmental law and policy is Smart Growth. Nevertheless, all three have important implications for scholars and practitioners of environmental law and policy. Together the three books demonstrate the interrelationship of seemingly disparate fields of public policy alluded to above.

II.

WHAT IS THE PROBLEM?

Identifying the critical problem or problems that plague communities in the United States is not a simple task. There is not agreement on this issue, although common ground does exist among the authors of Smart Growth, City Making, and Suburbs under Siege. ULI has formulated an explanation that is arguably most widely accepted.

In the suburbs, the problems are urban sprawl, loss of open space and farmland, growing traffic congestion, absence of a sense of place, crowded schools, and air pollution resulting from auto dependence. In the central cities and older inner suburbs, the traditional problems of crime, blight, unemployment, poor schools, and poor quality housing remain.(6) Whether these problems identified by ULI are problems or the symptoms of underlying problems (or both) is not necessarily evident.(7)

Professor Frug provides a more parsimonious description of the problem. "Every American metropolitan area is now divided into districts that are so different from each other they seem to be different worlds."(8) The problem, according to Professor Frug, is the segregation of the United States. This segregation does not simply occur along racial lines--it emanates from a fear of other.(9) The other may be differentiated on the basis of race, class, gender, sexual orientation, religion, or more ephemeral attributes such as living arrangements or dress. We know the other when we see her and, as Professor Frug states, "[w]e all know where we belong."(10)

Professor Haar provides an even more pointed description of the problem that communities face. "No domestic issue is more troubling to American society today than the economic and social division between the races."(11) Thus, according to Professor Haar, the division of races is the predominant problem that plagues local governments in the United States. The schism between racial groups manifests itself as a schism between the haves and have-nots and the suburb and central city. As this schism worsens, "obstacles to equality of educational opportunity threaten to become insurmountable."(12)

The authors of all three books agree that social conflict is a critical social problem. Whereas Professors Frug and Haar feature social conflict as the central problem that communities face, the contributors to Smart Growth identify social conflict as one of a number of problems that communities face. Those concerned about environmental law and policy may worry that the preoccupation of the authors with social conflict might lead them to ignore or misunderstand the problem of environmental degradation. But in each instance it appears that such concern would be misplaced and that the authors acknowledge the complex interrelationship between social conflict and environmental degradation.(13)

III.

WHAT ARE THE CAUSES?

Identification of the problems that plague communities provides an important first step toward the formulation and implementation of public policies to address and perhaps remedy those problems. But policies are unlikely to be successful unless the underlying causes of the problems are also identified and understood. If problems are identified but their causes are not understood, the response to those problems is likely to be inefficient and ineffective.(14)

Because the authors focus upon different problems, it is not surprising that they identify somewhat varied underlying causes for those problems. In Smart Growth, Geoffrey Anderson and Harriet Tregoning argue that transportation innovations, including automobiles and expressways, contribute significantly to existing problems.(15) Anderson and Tregoning point to increased home ownership, which resulted, in part, from transportation innovations, as another key cause.(16) Federal laws, including the Federal Highways Act and the GI Bill, fueled both transportation innovations and increased home ownership.(17) In addition, Anderson and Tregoning assert that federal subsidies for infrastructure development including the development of drinking water and wastewater systems resulted in the current development.(18) Thus, transportation innovations and increased home ownership fueled by federal policies are identified as the primary factors contributing to the problems communities face.

Don Pickrell, another contributor to Smart Growth, suggests that planners, developers, and engineers have all worked to "accommodate the automobile and increase the convenience it affords."(19) According to Pickrell, this resulted in the transportation problems that communities now face.(20) David Petersen presents a third perspective.(21) He asserts that urban decay "may owe its recent widespread emergence to the convergence of two major forces: the technological capability to support geographic expansion of urban areas and the nationwide unleashing of pent-up purchasing power following the end of World War II."(22) Both Pickrell and Petersen agree with Anderson and Tregoning that transportation innovations contributed to community problems.

In contrast, in City Making Professor Frug focuses on the failure of the legal system to empower cities.(23) He states that "it is the legal system that determines the kind of power that cities can exercise, and ... the way it has done so has had destructive consequences for American society."(24) The argument is straightforward; however, local government law is complex and replete with contradictions. Although central cities and suburbs are both typically governed by municipal governments, Frug argues that central cities are treated as truly public entities while suburbs adopt many of the characteristics (and are afforded many of the protections) associated with private entities.(25) The problem is that "the manner in which local government law has empowered cities and the curbs that it has placed on them, taken together, have limited the scope and promise of decentralized power in America."(26)

Like Professor Frug, Professor Haar asserts that the law is a key cause of the problems faced by communities, noting that "the law has been a major player in the pattern of segregation and housing discrimination."(27) Professor Haar contends that the contribution of urban sprawl to these problems is not well-recognized.

"[T]he growth of suburbia and movement of capital and other resources away from cities--patterns rarely considered in the formulation of policies concerning race relations and poverty--are key points that must be addressed if we aspire to solve the paradox of great wealth and great poverty coexisting in our metropolitan areas today."(28) Law is a causal factor of the problem that Professor Haar identified--the division that now exists between races. He states that "[l]aw has become a surrogate for physical walls."(29)

Each of the three books prominently features government policies as a cause of the problems that communities face today.(30) The contributors to Smart Growth emphasize federal and local government policies, Professor Frug focuses upon federal and state government policies, and Professor Haar stresses the role of state government policies. Thus, there is agreement that government has caused societal problems, but the issue that receives the most attention in all three books is whether government or other social institutions can formulate and implement policies that will solve the problems that communities face.

IV.

IDENTIFYING THE SOLUTION

The three books diverge to the greatest extent upon the solution to the problems. All recognize the need for drastic change and the constraint imposed by the incremental nature of our political system.(31) Yet, in striking a balance between these two, the books propose very different solutions.

Not surprisingly, contributors to Smart Growth propose smart growth as the solution...