Site-specific laws.

• Author: Nagle, John Copeland
• Position: The American Congress: Legal Implications of Gridlock

We are accustomed to thinking that Congress legislates equally throughout the country. (1) Assaulting a federal officer is illegal whether the attack occurs in Virginia or in Colorado. (2) The Endangered Species Act (ESA) (3) applies equally to the Alabama red-bellied turtle, the Indiana bat, and the California condor. (4) Title VII of the Civil Rights Act prohibits the discriminatory refusal to hire an African-American in Illinois and a Chinese-American in Nevada. (5)

The exceptions tend to prove the rule. The Cornhusker kickback was so controversial because it would have extended additional Medicaid benefits only to those living in Nebraska. The Voting Rights Act's preclearance provisions are subject to continuing opposition because they impose more stringent regulations on some states than others. Congressional earmarks fell out of favor because they funded projects in some places rather than others for reasons unrelated to the value of the project.

But site-specific laws are much more common, less controversial, and more justified than our intuition suggests. The First Congress legislated for a number of specific places, and such legislation has become much more common since then. Statutes that target specific places are a common, if not inevitable, feature of federal lands management and the construction and operation of federal facilities.

This Essay identifies the instances in which site-specific legislation is appropriate. It recounts the uses of such legislation, the theoretical debate surrounding it, and the circumstances in which it is desirable. I conclude that site-specific legislation plays an important role in enabling Congress to prescribe its preferred policy even when agreement on broader legislation remains elusive.

1. TYPES OF SITE-SPECIFIC LAWS

   Congress has been legislating about specific places since August 10, 1790, when it passed "An Act authorizing the Secretary of the Treasury to finish the Lighthouse on Portland Head, in the District of Maine." (6) Site-specific legislation enacted since then takes a variety of forms. Congress may:

   Name, build, or fund something at a particular place--Congress frequently specifies the name that it wants affixed to a courthouse, post office, highway, or other facility. (7) Congress also enacts legislation directing the construction of a lighthouse, courthouse, post office, road, bridge, hospital, or other project at a certain place. Most of these statutes are uncontroversial, though there are also many instances of roads and bridges that generated intense debate. Some of the earlier battles in Congress involved the proposed construction of canals, roads, and other "internal improvements" at the beginning of the nineteenth century. More recently, the construction of a nuclear waste disposal facility at Yucca Mountain northwest of Las Vegas has produced conflicting legislation and proposed bills over the course of several decades. (8) Water projects are another source of repeated congressional legislation and public debate. (9) Finally, many provisions in appropriations statutes direct the expenditure of federal funds at a particular place. (10) While such provisions have a long heritage, in recent years they have been attacked as improper earmarks.

   Federal land management--Numerous federal statutes dictate special rules for the acquisition, disposition, or management of particular pieces of federally owned lands. For example, while Congress has enacted the Organic Act and the Wilderness Act to govern the management of national parks and wilderness areas respectively, Congress retains the sole authority to make the threshold determination of which federal lands qualify as national parks and wilderness areas. Congress employed that authority to establish the Pinnacles National Park in 2013 and to establish multiple new wilderness areas in 2009. (11) Or Congress may create a new form of federal land management to accommodate the unique needs of a particular place, as it did with respect to the Valles Caldera in northern New Mexico and the Presidio in San Francisco. (12) Congress also legislates specific land exchanges between private, state, and federal owners. (13)

   Create special regulatory authority for a specific place--There are numerous instances in which Congress has established a new entity to regulate activities at a specific place. Congress has empowered regional fisheries councils to manage eight distinct offshore fisheries from Maine to Alaska. (14) Congress has approved interstate compacts for the management of Lake Tahoe, the Susquehanna River, the Delaware River, the Columbia River Gorge, and dozens of other places. (15) Alternatively, Congress has enacted statutes instructing an agency to simply decide whether a specific project is in the public interest, rather than relying on the agency's application of generally applicable laws. Congress recently employed that approach with respect to the proposed Keystone XL pipeline, the continued operation of an oyster farm within the Point Reyes National Seashore, and the construction of a road through the Izembek National Wildlife Refuge.

   Give special regulatory treatment to a particular place--Less frequently, but still with some regularity, Congress prescribes a special regulatory rule for a particular place. Most of these rules exempt a place from ordinary regulation. They include the exemption of activities within the Arctic Circle from the Crude Oil Windfall Profit Tax Act of 1980 (16) and the declaration that a portion of the James River is not navigable for purpose of federal law. (17) Occasionally, Congress enacts legislation that imposes more stringent regulation on one place than occurs generally. The preclearance provisions of the Voting Rights Act are the most famous example of such an approach. (18) Congress also exempted states (like Nevada) with preexisting sports wagering laws from a national ban on such wagering. (19) And, Congress authorized California to adopt more stringent air pollution regulations than otherwise required by the Clean Air Act. (20)

2. THE THEORETICAL DEBATE CONCERNING SITE-SPECIFIC LAWS

   A robust scholarly and policy debate addresses the supposed virtues and vices of site-specific laws. The scholarship favoring such legislation promotes the use of "place-based management" instead of relying solely on general legal commands. Those who are concerned about site-specific laws recite a number of constitutional, procedural, and policy flaws, especially with respect to provisions enacted through the appropriations process. My review of these arguments suggests that the benefits of site-specific legislation can often be secured without experiencing the dangers that such legislation can present if employed improperly.

   1. The Case for Site-Specific Laws

      I first recognized the virtues of place-based management in my book Law's Environment, where I examined how the law interacts with other forces to shape the natural environment in five places that I studied. (21) One of the surprising lessons of that research was the extent to which general laws often produced quite unexpected consequences in each place. By contrast, laws aimed at particular places are more likely to achieve their intended goals. That is just one of the virtues of site-specific legislation. Besides being responsive to local conditions, site-specific legislation takes advantage of congressional expertise and offers a viable lawmaking outlet during times of political polarization.

      1. Responsiveness to Local Conditions

         The premise of place-based management is that unique places deserve unique rules. And every place is unique in some ways. Laws that are tailored to specific places are usually more responsive to local needs. As Robert Keiter explains, Congress uses place-based management "to meld national and local interests into an acceptable and often locally brokered political compromise." (22) Rob Fischman adds that "[t]he chief strength of this approach is that it brings a wide range of stakeholders and regulatory jurisdictions, state and federal, together to engage in holistic management." (23)

         Such laws often result from a collaborative process that emphasizes compromise among stakeholders. Or Congress could empower an agency to authorize experimental projects, rather than enacting multiple separate place-based statutes or an overall change in an agency's governing statutory commands. And even when compromise remains elusive, place-based lawmaking at least provides a resolution. It enables contested issues to "be dealt with squarely in legislation, rather than pushing them into alternative forums of conflict resolution, like interminable planning or rulemaking processes." (24)

      2. Congressional Expertise

         Site-specific legislation presumes that there are management and regulatory decisions that are better made by Congress than by administrative agencies implementing general laws. The relative advantages of legislation and agency rulemaking, of course, have long been debated and have generated substantial literature. My premise here is that there are at least some instances in which Congress is better suited to adopt the rule governing a particular place. That is especially likely to be true when the resolution of an issue depends on the weighing of conflicting values rather than scientific judgment. For example, Senator Barbara Boxer has defended the congressional determination of which water projects to authorize because she "trust[s] the senators and members of Congress who know the ground on which they live to make these decisions." (25)

         Place-based management that results from site-specific legislation may also be a superior alternative to relying on an administrative agency to implement a broad statutory command. The Forest Service, for example, is charged with managing national forests to accommodate "multiple uses." (26) But, as Martin Nie and Michael Fiebig explain, "there is a...