FOUNDATIONS OF INSIDER ENVIRONMENTAL LAW.

Author:Rosenbloom, Jonathan
 
FREE EXCERPT
  1. INTRODUCTION 632 II. HERE IS FOUND HERE, NOT THERE 635 A. Planning to Protect Their Own Values: Town of Weare, New Hampshire 637 B. Different Spaces, Different Places: Town of Brookhaven 638 1. The Hamlet of Brookhaven/South Haven 638 2. The Hamlet of Medford 639 C. Portland as an Environmental Community 640 D. Celebrating Local: Christmas in July 642 E. The Here of Regulating 643 III. VALUING LOCAL GOVERNANCE AND FRAMING THE DECENTRALIZATION DEBATE 643 A. Decentralization Debate in the United States 644 1. Self-Governance and Private Rights 646 2. Spirit and Form 646 3. Public Good 648 B. What Is in These Rationales? 650 IV. INSIDER PERSPECTIVE AND INSIDER ENVIRONMENTAL GOVERNANCE 651 V. CONCLUSION 655 I. INTRODUCTION

    Those inside a community understand and interact with the environment in a fundamentally different way from those on the outside. From the perspective of those outside, a city and its environs may be understood through an external perception of what is "good" or "bad" about the city. The outsider might visit a city to witness natural wonders, architectural or artistic features, famous marketplaces, or events such as festivals, concerts, and parades. The outsider can preserve the visit in a photograph so as to say, "I was there" or "I have seen that," and check off the items from lists found in Frommer's, lonely planet, Rick Steves, and Fodor's, travel guides that provide the essential information an outsider needs to appreciate a city. The lonely planet, for example, tells the outsider what to see during a visit to Paris: "From the heights of Sacre Coeur to the gently rolling Seine, feel the joie de vivre of Europe's crowning glory. ... With discerning information on everything Paris has to offer, this guide gives you the city at your fingertips." (1)

    However, there is something missed by the outsider. In contrast to the outsider's visit to "there," the insider declares that "this place is us" or, even better, "we are here." The outsider does not share the insider's history, context, and value. The insider's use of and identification with the word, "here," is a reference to situatedness and a recognition that the speaker is in a particular place, challenged by and benefiting from what that location has to offer. "Here" is the moment sense of place begins.

    Sense of place is the foundation of the insider's perspective. The insider's perspective attributes deep meaning to words like "here," "us," and "ours" that is often missed or misunderstood by the outsider. The reference to "here" means something concrete to the insider (yet something different to each insider in their respective community) and may include more than the externally appreciated highlights of a city. It may conjure memories, values, and other traits an outsider cannot access by simply visiting or viewing a place. The insider's perspective of place provides a unique view into the inner-workings and character of a community. The insider's perspective raises images, feelings, traditions, culture, and history that may elude an outsider. Despite how rudderless it may feel to an outsider, "here" carries a particular meaning to a community in a specific place. What "here" means to one community is different from what "here" means to others. This specificity based on place eludes the outsider.

    Just as the insider's perspective sheds light on the interaction between community and place, it also helps explain how that interaction influences regulation of the local environment. When local governance is observed through the insider's perspective, local reaction to ecological change is more understandable, the entrenchment in controversies becomes more meaningful, and the potential of local governance (particularly in the arena of environmental law) becomes deeper and more emboldened.

    The insider's perspective prioritizes the knowledge that emerges from the insider's place-based viewpoint, including local values, relationships, myths, and mysteries. The insider's perspective illuminates the attachment between local community and environmental features, and, in a meaningful way, helps to explain why that attachment is critical to community and the environment and how that attachment is translated into local regulation of the environment. We refer to this understanding as "Insider Environmental Law." Insider Environmental Law is the policy that results from a community's engagement with a particular local environment, the development of that community's identity in a specific environmental context, and even the community's survival and flourishing against the challenges and opportunities that are felt locally.

    Understanding Insider Environmental Law is helped by a brief comparison with federal regulation of the environment. When the federal government regulates the environment, it does so in a manner analogous to an outsider's perspective. Federal regulation universalizes environmental features. It uniformly applies policies to achieve a standardized idea of environmental quality. It does not try to understand the importance of environmental context, such as a specific tree or stream. Rather, it regulates by uniformity under the assumption that standardized requirements are applicable to all communities across the United States, regardless of how the community understands itself in relation to the tree or stream. In this Essay we do not explore the question of whether local governments should regulate alike. Rather, we take note that how local governments regulate a particular tree or stream adds value to "here," and does so in a way that is fundamentally different from the objective standards found in federal regulation.

    In this Essay, we do not take a normative position on whether an outsider's or insider's perspective is better or more beneficial to the environment or local governance. We set out to account for the existence and importance of the insider perspective to the way communities regulate the environment and that such perspective is not fully recognized. Acknowledging the distinction between an insider's and outsider's approach to environmental regulation can provide a better understanding of why communities do what they do. Insider Environmental Law views environmental assets and challenges from the integrated manner in which the community is situated. Understanding the convergences and differences between the insider's and outsider's perspectives goes to the heart of how local environmental governance can and does work.

    The Essay begins by providing some examples of local governance. Part II examines how the insider's perspective is expressed in local governance, both in the manner and method through which communities express themselves. Communities show their histories, shared values, and priorities in a number of different ways, and it is in these expressions that we find sense of place. Part III builds off Part II by considering the degree to which theories of local governance address this sense of place illustrated in Part II. Part III outlines the debate on decentralization of governance authority to determine how we currently evaluate the benefits of local governance. Specifically, this Part describes how the prevailing theories of local governance omit consideration of the insider perspective. Finally, Part IV of this Essay dives more deeply into Insider Environmental Law, illustrating the insider perspective to show that place matters.

  2. HERE IS FOUND HERE, NOT THERE

    Our town is... in an area that is blessed with rugged mountains, pristine rivers, lakes, and ponds. These waters are deep in history. ~ Trout town, Roscoe, New York (2)

    An explanation of Insider Environmental Law must begin with an exploration into the important ways that local governments govern. What drives local governments? What is at the core of local government values, especially those to which attention is given by local residents?

    As a jumping-off point, we might assert that local governance must respond to the values, identities, and artifacts that are designated as local. While there is no doubt that local governments must operate within their legal authority, (3) our exploration probes behind the legal confinements of local governance and explores the distinct and particular ways in which local governments exercise their authority based on location, history, and culture. In understanding how and why local governments govern, it is essential to grasp the importance of "here." "Here" is a first-person perspective, a reference point, and a vantage from which all observations and insights can be made. "Here" is situatedness and provides a basis for sense of place. We always have to start an analysis of local from here. (4) Without it, we cannot fully understand how or why a particular community regulates in a specific way.

    For example, similar to hundreds of local governments, the Town of Addison, Texas, located outside Dallas, regulates the removal of trees. (5) Addison requires that the existing natural landscape, particularly native oak, elm, and pecan trees, be reasonably preserved. (6) The Town requires property owners to replace any "dead, removed, missing, improperly pruned, or damaged trees," within thirty days of notification. (7) The list of suggested trees for replacement consists of trees native to Texas, as well as those that have been proven to be suitable to the area. (8) Further, property owners may not remove or transplant a tree contained on the list without first getting a tree permit. (9) Considerations for granting removal of a listed tree include the impact removal may have on erosion, soil moisture, retention, flow of surface waters and drainage systems, and impact on the public health, safety, and welfare of the Town. (10) It is quite possible the community in Addison looked at other jurisdictions and determined it too should regulate the removal of trees and protect certain native trees. But the purpose of the...

To continue reading

FREE SIGN UP