Smart Growth Micro-incentives and the Tree-cut Tax Case

• Citation: Vol. 17 No. 4
• Publication year: 2010

Smart Growth Micro-Incentives and the Tree-Cut Tax Case

William W. Buzbee

Introduction

It is often suggested that academics can make a splash by making suggestions that run against the tide of received wisdom, or at least popular trends. I suppose I am doing a bit of that in this essay.†† Over a decade ago, law professor Christopher Stone wrote a provocatively entitled article, "Should Trees Have Standing?"[1] Provocative though it was, such a legal reform allowing trees to sue in their own name (assisted by homo sapiens) earned many a citation but never found a receptive audience in the courts.[2] I guess this essay might, in a bow to Stone's famous article, be retitled, "Could Trees Remain Standing? A Sprawl Lament." First, I will preface these symposium comments by alerting you that despite the political tide evident in the apparent election of George W. Bush, the confirmation of Gail Norton, the likely increased exploitation of natural resources, and substantial tax cuts, my recommendation is that we consider imposing a substantial new tax, this time on metropolitan area tree cuts. Whether such a charge for tree cuts would actually be called a tax, a fee, or an impact fee, would differ among jurisdictions.

Is this idea of a tree-cut tax a frivolous suggestion? Not completely. Such a smart growth regulatory strategy illustrates well the complex institutional dynamics that complicate smart growth recommendations. Such a regulatory approach also might counteract some of the problems of unresponsive and unaccountable public and private institutions that explain much of the prevalent denuded sprawlscape. In analyzing this and other costs associated with sprawl, one must acknowledge that if policymakers allow urban form decisions in the public or private sphere to be costless to the decisionmaker, even if costly to society, imprudent and harmful actions are likely to result. A tree-cut tax is an analytically sound, albeit likely a politically doomed, regulatory approach to deal with the urban deforestation that tends to accompany sprawl. The mode of analysis suggested here is prudent, if not unavoidable, if one is to grapple effectively with the many symptoms constituting the phenomenon referred to as sprawl.

I. Smart Growth Strategies in an Institutional Matrix

To devise successful smart growth strategies, or merely to address harms associated with urban sprawl, policymakers must do more than simply identify their goals. Policymakers must also do more than merely identify sprawl harms or single factors contributing to sprawling urban forms. Instead, policymakers at all levels must look at sprawl and smart growth policies with sensitivity to existing legal structures, policymakers' motivations, market motivations of businesses affected by sprawl, and the preferences of individuals acting as both consumers and citizens. In examining legal structures, market motivations, policymakers' motivations, and individuals' preferences expressed in markets and the political sphere, one must be particularly sensitive to the institutional settings within which decisions about urban form arise. As I will suggest, sensitivity to the institutional setting, with a particular emphasis on historical context, is critical to identifying promising policy initiatives. To address sprawl's ills with an inordinate focus on, for example, local land use regulation, racism, lending practices, federal highway funding, or real estate practices, threatens to lead to ineffective policy suggestions. All are factors playing a role in the sprawlscape, or perhaps symptoms of the multifaceted phenomenon referred to as sprawl, but one must look at the incentives, interrelationships, and interactions that motivate stakeholders with an ability to influence urban form and the modes of urban growth. On the other hand, this nuanced multi-factor analysis concededly threatens to generate mushy prescriptions and great uncertainty. I nevertheless suggest that mush is better than false certainty and overcommitment to initiatives that miss key variables.

What makes sprawl so unruly and smart growth goals so difficult to achieve? First, unlike seemingly similar harms such as water pollution, which often can be attacked quite effectively through fairly simple regulatory strategies, urban sprawl does not offer any single, easy regulatory target. Instead, sprawl arises out of an array of private and public decisions, many of them virtually invisible and unable to be regulated. In addition, sprawl's benefits, like its harms, are many. Cheaper, larger urban periphery housing continues to be built because consumers desire it, especially when they are not required to pay for sprawl's harms and when others through government highway building subsidize the costs of reaching those distant parcels. Even if one says sprawl is bad, it is not clear what the curative measures should be, let alone what it would mean to cure sprawl and embrace smarter forms of growth.

Perhaps the most challenging aspect of sprawl policy for legal scholars and practical policymakers is that it confronts a problem I refer to as jurisdictional mismatch. Sprawl, by definition, covers a multiplicity of jurisdictions and results from an array of local, state, and federal level policies, as well as complex private dynamics, yet regulatory primacy over land use tends to be local. Regional forms of government are few and are often ineffective. Federal and state highway spending influences local land uses, yet is often insensitive to the repercussions of those choices at the local level. Local land use practices often allow, through their malleability, steady growth and development when reading the law might lead one to expect growth constraints. Thus, sprawl must be seen as the result of current legal and market frameworks. It is not a natural or inevitable phenomenon, but one shaped by the incentives and preferences of stakeholders, with each stakeholder acting from a position of advantage or disadvantage depending on prevailing legal and market frameworks. Monetary or in kind subsidies, or harms that are not internalized through regulatory correction, all influence urban form. In short, for each harm or cause of sprawl, and for each smart growth recommendation, one confronts complex interactions and institutional challenges.

II. The Tree-Cut Tax Case as a Smart Growth Challenge

In this limited space, it is not possible to delve deeply into the complex institutional underpinnings of sprawl and emerge with a top-to-bottom prescription to encourage smart growth. However, to allow some depth to this discussion, I will explore one facet of urban sprawl, a downside to urban growth that troubles many, urban deforestation. Urban deforestation in Atlanta and many other sprawl cities is one of the significant side effects of urban population growth. Both on the urban periphery and in some first ring suburb infill areas, new residential and commercial development is typically preceded by devastating tree cuts that leave little greenery standing. Reworking of the land also typically occurs, as the land's usual undulations are leveled to a more predictable grade allowing for cheaper construction. However, this urban deforestation is not uniquely American. In a recent talk at Emory University, scientist E.O. Wilson showed evidence of even more severe green space destruction in several rapidly growing Asian nations, often with catastrophic biodiversity losses.

Is this facet of rapid urban growth unavoidable? Should it be of concern to policymakers and smart growth advocates? Perhaps most importantly, if this is a problem requiring regulatory intervention, what form of intervention is needed, and with what likely results?

A. Tree Loss...