A Mount Laurel for Climate Change? The Judicial Role in Reducing Greenhouse Gas Emissions From Land Use and Transportation

• Date: 01 October 2019

49 ELR 10938 ENVIRONMENTAL LAW REPORTER 10-2019

ARTICLES

The successes some states have had combating climate

change mask a troubling trend. For example, Califor-

nia has ambitious goals— it seeks to reduce greenhouse

gas (GHG) emissions to 40% below 1990 levels by 2030, and

to net zero by 20501—and it has already met its 2020 goal four

years early.2 However, even as California’s overall emissions

shrink, its GHG emissions from transportat ion are still rising.3

e culprit is the personal automobile.4 Vehicular emissions

are a product of vehicle miles traveled (VMT ) and the emis-

sions rate per mile.5 State and federal regulations target emis-

sions per mile.6 VMT have grown.7

e situation is similar nationally. Twenty-eight percent of

U.S. emissions are due to transportation, and tran sportation is

the sector responsible for the largest growth in GHG emissions

sin ce 2010 .8 ank s to high VMT a nd inecient vehicles,9

the U.S. transportation system’s energy intensity is higher than

any other country’s, and is rising.10 is has persisted even

though 19 states have policies aimed at VMT reductions.11

Improvements i n fuel economy12 were oset by a 44% increase

in VMT for light-duty vehicles between 1990 and 2016.13

e root problem is that the low-density suburban sprawl

promoted by local zoning makes America ns dependent on

automobiles. Transportation by any other method is virtu-

ally impossible in much of the country.14 Sprawl leads to

higher VMT by pushing place s further apar t, lengthening

1. U.S. C A, 2018 A R: C, available

at https://static1.squarespace.com/static/5a4cfbfe18b27d4da21c9361/t/5c

2e53f3c2241b1c7333f22e/1546540019855/USCA_2018+Annual+Report_

20180911-FINAL_CA.pdf.

2. C A R B, C G G E-

  2000  2016, at 2 (2018), available at https://www.arb.ca.gov/

cc/inventory/pubs/reports/2000_2016/ghg_inventory_trends_00-16.pdf.

3. Id. at 5.

4. Id.

5. See Rachel Medina & A. Dan Tarlock, Addressing Climate Change at the

State and Local Level: Using Land Use Controls to Reduce Automobile Emis-

sions, 2 S 1742, 1744 (2010).

6. 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions

and Corporate Average Fuel Economy Standards, 77 Fed. Reg. 62623 (Oct.

15, 2012) [hereinafter GHG and CAFE Standards] (to be codied in scat-

tered sections of 40 and 49 C.F.R.); C. C R. tit. 13, §1961.3

(2018).

7. Caltrans, Monthly Vehicle Miles of Travel, https://dot.ca.gov/programs/traf-

c-operations/census/mvmt (last visited Aug. 21, 2019).

8. U.S. E P A (EPA), I  U.S.

G G E  S 1990-2017, at ES-24 (2019)

(EPA 430-R-19-001), available at https://www.epa.gov/sites/production/

les/2019-04/documents/us-ghg-inventory-2019-main-text.pdf. When

electricity emissions are assigned to end-use sectors, transportation account-

ed for 36% of emissions. Id. at ES-12.

9. Emma Foehringer Merchant, A Look at the Passenger Transportation Chal-

lenge for the US, G M, Jan. 1, 2019, https://www.greentech-

media.com/articles/read/the-u-s-s-passenger-transportation-challenge.

10. Id.

11. See Louise W. Bedsworth & Ellen Hanak, Climate Policy at the Local Level:

Insights From California, 23 G E. C 664, 664 (2013).

12. See GHG and CAFE Standards, supra note 6.

13. U.S. EPA, supra note 8, at ES-12 to ES-13.

14. See, e.g., D O, G M 101-05 (2009); J S,

W C 4 (2012).

A Mount Laurel

for Climate

Change? The

Judicial Role in

Reducing

Greenhouse Gas

Emissions From

Land Use and

Transportation

by Grant Glovin

Grant Glovin is a third-year student at Harvard Law School.

is Article won the Environmental Law Institute’s 2018-2019

Constitutional Environmental Law Writing Competition.

Summary

Greenhouse gas emissions from transportation in the

United States have remained persistently high. One

cause is common low-density land use patterns that

make most Americans dependent on automobiles.

Reducing these emissions requires increasing density,

which U.S. local government law makes dicult to

achieve through the political process. Mount Laurel, a

1975 New Jersey Supreme Court case that addressed

an aordable housing crisis by restraining local paro-

chialism, provides a potential solution. Environmen-

tal advocates may be able to mount similar state-law

challenges against low-density zoning based on the

high carbon emissions it produces. Such a challenge is

legally and normatively defensible in New Jersey and

other states.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.