Legislating Sustainable Design: The Challenge of Local Control and Political Will

• Date: 01 August 2010

40 ELR 10740 ENVIRONMENTAL LAW REPORTER 8-2010

R E S P O N S E

Legislating Sustainable Design:

The Challenge of Local

Control and Political Will

by Lavea Brachman

Lavea Brachman, JD, MCP, is Executive Director and a founder of the Greater Ohio Policy Center, a nonprot

organization researching and advancing smart growth, land use, and economic revitalization policies in Ohio.

She is also a non-resident senior fellow in the Brookings Institution Metropolitan Policy Program.

Sara C. Bronin’s e Quiet Revolution Revived: Sustain-

able Design, Land Use Regulation, and the States1 revis-

its the age-old, America n democratic debate of nding

the right balance between local control and imposition of

a statutory regime for the greater public good. Fundamen-

tally, I agree with the article’s premise that state policy pow-

ers are generally underutilized in the land use reform context

and could be used productively to advance implementation

of local green building design and construction. However, I

would argue that implementation of this concept faces steep

practical and political obstacles, part icularly in certain states

around the country, and caution that these challenges may

dictate a modic ation in Bronin’s recommendation. It will

require a dierent vehicle or process in order for state policy

to override “traditional” local la nd use laws, such as zoning

ordinances and design controls, to enable states to “take back

their police power” 2 in these areas.

I heartily concur with the general thrust of Bronin’s argu-

ment that states should play a more prominent role in advanc-

ing sustainable development and design practices. As the

result of either state inaction or proactive statutory regimes,

an uneven playing eld ha s emerged that encourages unsus-

tainable development in several ways beyond the construc-

tion and design context, including encouraging greenelds

development and sprawl over ad aptive reuse, urba n inll or

browneld redevelopment, or incentivizing development in

rural, exurban or unincorporated areas outside cities (so-

called townships in some states, like Ohio, Pennsylvania,

and Indiana), instead of in urbanized environments. Some

of the state policies causing these perverse impacts are not

even directly land use-related but arise from other areas of

state power, such as taxing authority where taxes are imposed

unevenly on dierent types of jurisdictions, thus skewing the

1. Sara Bronin, e Quiet Revolution Revived: Sustainable Design, Land Use Regu-

lation, and the States, 40 ELR (E’ L.  P’ A. R.) 10733 (Aug.

2010) (a longer version of this Article was originally published at 93 M. L.

R. 231 (2008)).

2. Id. at 10733.

market and private sector development decisions about where

to invest and develop. Conversely, such as in the case of green

building where the market may not account suciently for

negative externalities over the longer term, state intervention

is benecial. ere is no question, then, that states can and

should be more proactive about reexamining land use-related

policies. Where t hey have been silent, they should act to

encourage sustainable growth; where they have acted, with

perverse impacts, they should reform policies to d iscourage

unsustainable growth practices.

In addition, the uniformity among local jurisdictions in

the implementation of green building practices that would

result from state standa rds would be advantageous, thereby

possibly removing the decisionmaking about construction

and development practices from the connes of local poli-

tics and reducing the favoritism t hat inevitably taints local

development processes. is would advance the green build-

ing cause considerably, and perhaps transcend t he parochi-

alism that pervades many of our local communities when

confronted with new ideas, such as green building a nd sus-

tainable communities. Ultimately, state intervention would

go a long way toward leveling the playing eld between proj-

ects that use conventional materials that are less costly in the

short-term, and projects providing long-term community

benets for which local planning commissions are unable to

account. Ideally, sound government policy should promote

the greater public good, reecting the philosophical demo-

cratic underpinnings on which our country was founded.

I. Challenges and Barriers to

Implementation

However, real politik barriers to implementing the recom-

mendation that states should adopt land u se powers to pro-

mote green building may prove too steep to overcome. First,

it is a more complicated process than Bronin suggests for

states to adopt statewide rules that either “inuence land use

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