The promise and perils of 'new regionalist' approaches to sustainable communities.

• Author: Alexander, Lisa T.

"There is a critical difference between going through the empty ritual of participation and having the real power needed to affect the outcome of the process." (1)

Introduction I. New Regionalism's Response to the Failures of Local Government Law A. Cross-Border, Multi-Issue Challenges B. Equitable Regionalism C. Political Participation and Collaboration Across Local Boundaries II. "New Regionalism" As "New Governance" A. The Retreat From Regional Governments B. Regional Governance and Stakeholder Collaboration Dilemmas C. Stakeholder Collaboration and Power III. The Sustainable Communities Regional Planning Grant Program's Promise A. Broad, Multijurisdictional, Stakeholder Participation B. Equitable and Comprehensive Solutions to Interrelated Problems C. Effective and Informed Monitoring IV. The Sustainable Communities Regional Planning Grant Program's Perils A. Demographic Representation B. Representative Opportunism C. Representative Acquiescence D. The Case of Madison, Wisconsin and Dane County 1. The Local Fresh Food Market 2. Struggle for the Soul of Southdale and Drumlin Farms 3. The Southdale Springs Cooperative Housing Conceptual Plan Conclusion INTRODUCTION

On February 4, 2010, Shaun Donovan, the Secretary of the U.S. Department of Housing and Urban Development (HUD), announced HUD's creation of the Office of Sustainable Housing and Communities (the "Office"). (2) Given the rather depressing state of the U.S. housing market, the announcement was one bright spot on an otherwise dim horizon for U.S. housing policy. The new Office is a program within HUD "designed to help build stronger, more sustainable communities by connecting housing to jobs, fostering local innovation and building a clean energy economy." (3) Through the Office, HUD seeks "to tie the quality and location of housing to broader opportunities such as access to good jobs, quality schools and safe streets." (4) Congress funded the Office in the FY 2010 Consolidated Appropriations Act, (5) and allocated $150 million to the Office for a Sustainable Communities Initiative (the "Initiative"). (6)

Instead of a reactive attempt to correct U.S. housing policy's failures, (7) the Initiative is HUD's affirmative act "to stimulate more integrated and sophisticated regional planning to guide state, metropolitan, and local investments in land use, transportation and housing, as well as to challenge localities to undertake zoning and land use reforms." (8) The Initiative is one effort of the Obama Administration's broader Interagency Partnership for Sustainable Communities (the "Partnership"). The Partnership is a joint endeavor between HUD, the U.S. Department of Transportation, and the U.S. Environmental Protection Agency, to foster interagency coordination and cooperation around interdependent challenges. (9) The Partnership identified six livability principles that each agency member of the Partnership will incorporate into its programming. The principles are to: (1) provide more transportation choices; (2) promote equitable, affordable housing; (3) enhance economic competitiveness; (4) support existing communities; (5) coordinate policies and leverage investments; and (6) value communities and neighborhoods. (10) The Initiative is one HUD program designed to ad-)) vance these livability principles.

One hundred million dollars of the Initiative's funding is for a competitive Sustainable Communities Regional Planning Grant Program (the "Grant Program"). (11) Through the competitive Grant Program, HUD provides financial incentives to metropolitan and rural grant applicants to create regional plans "that integrate housing, land use, economic and workforce development, transportation, and infrastructure investments." (12) The Grant Program places a priority on funding projects that "translate the livability principles" into long-term strategies to address issues of regional significance. (13) The Grant Program's unique targeting of regions as sites for regulatory reform, as well as its multijurisdictional and multisectoral emphasis, make it an example of what scholars and policymakers call "New Regionalism." (14)

New regionalism has been defined as "any attempt to develop regional governance structures or interlocal cooperative agreements that better distribute regional benefits and burdens." (15) New regionalist approaches recognize regions as key sites for the resolution of contemporary, interrelated problems that transcend local government and state boundaries. New regionalism includes collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation, sprawl, water access, infrastructure development, or environmental regulation. (16) The new regionalist agenda supports normative goals similar to the objectives that local government law seeks to advance, including: (1) equity and inclusion within, and amongst, self-defined territorial communities; (2) democratic participation; and (3) efficient and accountable government. (17) Yet, new regionalists accept that new regulatory formulations and institutional collaborations are necessary to advance their objectives under contemporary conditions. New regionalism embraces a broad range of institutional arrangements and regulatory formations that privilege the well-being of the region as a whole, rather than the best interests of any one locality within a region. (18) New regionalism is a law reform strategy that responds to local government law's failure to: (1) resolve cross-border, multi-issue challenges; (2) promote regional equity amongst interdependent localities; and (3) foster participation and collaboration across local boundaries.

This Article examines the Obama Administration's Sustainable Communities Regional Planning Grant Program as an example of new regionalism. The Grant Program is not an example of formal regional governance or mandated regulation. It provides federal economic incentives to encourage multiple jurisdictions to collaborate and to devise solutions to longstanding regional problems. The Grant Program, thus, signals a new era of federal/regional governance relations that is reminiscent of the Great Society programs of the 1960s. Yet, the Grant Program differs from those prior efforts in that its institutional design reflects newer approaches to governance and regulatory reform. Specifically, the Grant Program's efforts to incentivize voluntary forms of participation and collaboration between multijurisdictional stakeholders, devolve planning functions to regional, public/private partnerships that include traditionally marginalized groups, and monitor outcomes to ascertain best practices, make it an example of what many scholars have called, "new governance" or "democratic experimentalism." (19)

Though the term "new governance" defies precise definition, scholars generally agree that the emphasis on governance signals "a shift away from the monopoly of traditional politico-legal institutions, and implies either the involvement of actors other than classically governmental actors, or indeed the absence of any traditional framework of government." (20) New governance also connotes a retreat from formal regulation; whereby bureaucratic elites impose rigid mandates in a top-down manner on the governed. (21) Instead, governmental entities merely identify broad goals and structure economic incentives to encourage collaborators to pursue those goals. New governance strategies also privilege the participation of nontraditional, or even marginalized, stakeholders in public problem-solving. (22)

Proponents of new governance assert that despite the absence of formal rules, mandates, and government control, all relevant public and private stakeholders in a given problem-solving network will often cooperate, irrespective of their power or status, to resolve public problems in a socially optimal and equitable manner. (23) They argue that informal public/private partnerships containing multiple stakeholders may be preferable to bureaucratic agencies when resolving complex public problems. Strict rules, regulations, and mandates are viewed as unnecessary to ensure regulatory accountability, if the gravity, enormity, urgency, and uncertainty of the public problem facing the stakeholder network make collaboration and cooperation necessary for resolution of the challenge. Further, the informal nature of new governance's collaborative networks allows stakeholder collaborations to identify provisional goals, and then change those goals in response to new information. (24) New governance practice also places lawyers in less confrontational and more collaborative roles. (25)

New governance supporters assert that such approaches enhance the legitimacy, accountability, and transparency of regulatory reform as well as increase its experimental and democratic nature. (26) Most importantly, new governance scholars and advocates claim that such approaches to regulatory reform, if properly implemented, will often lead to more equitable distributive outcomes. (27) While many scholars maintain that new governance approaches provide many reasons for optimism, several others have shown that such approaches can present substantial pitfalls for traditionally marginalized stakeholders pursing distributive justice through regulatory reform. (28) This Article examines both the promise and perils of the Sustainable Communities Regional Planning Grant Program as an example of new regionalism as new governance. Part I outlines new regionalism's response to the failures of local government law. Part II explains how new regionalism is in fact a form of new governance practice, and thus reflects the promise and perils of new governance approaches. Part III examines the regulatory architecture of the Sustainable Communities Regional Planning Grant Program and outlines the Grant Program's potential strengths. Part IV analyzes...