Federalism and Local Authority: Empowering Local Governments to Address Environmental Problems

Abstract

From green-building initiatives to local farmers’ markets, local governments have become major players in addressing the most pressing environmental and public health concerns. For example, in the absence of national climate change legislation, municipalities are leading the way in transportation and development strategies to mitigate and adapt to climate change. Local governments have also used their zoning authority to ban or restrict land uses that pose environmental risks. Recognizing this trend, environmental law scholars have also begun exploring the positive potential of local governance in addressing a range of contemporary environmental problems. Despite this recognition, few legal scholars have focused on the place of local authority within our federal system of government. Questions of scale and allocation of governmental authority generally focus on the state-federal relationship, ignoring local governments or simply subsuming them within the state. Historically, the federalism literature — both within and outside environmental law — has reflected an assumption that theories of federalism simply do not speak to questions of local authority and power separate from state authority. This Article interrogates this assumption by asking whether federalism theories have implications for the place of local governments in the modern regulatory state. It is a question worth asking not only because localities are playing a larger role in regulating activities that affect the environment and human health, but also because they sometimes seek to pass laws and regulations that go beyond what their respective state governments desire. For example, local laws banning unconventional oil and natural gas drilling (often referred to as hydraulic fracturing or “fracking”) have been challenged in court as preempted by state law. In cases such as these, state preemption of local authority may be effective unless local governments can call upon the federal government. This raises the difficult question of whether the federal government should be able to preempt state authority to limit local laws that further local environmental objectives. To answer this question, Part I explores different descriptive and normative theories of federalism to understand their implications for local authority and power. While functional theories, which are focused on the values underlying a vertical division or sharing of powers, tend to offer the clearest justification for federal empowerment of local authority, more formal approaches to state-federal power do not necessarily preclude it. Part II connects the traditional federalism literature to the literature on dynamic federalism in environmental legal scholarship. Based on the analyses in Parts I and II, Part III proposes a framework for justifying federal empowerment of local authority in the environmental context. Under this framework, federal empowerment is most appropriate when it furthers one or more important federalism values, namely liberty, democratic participation, and economic efficiency, without undermining any one of them. To illustrate how application of the framework can resolve the difficult question of when federal empowerment is appropriate, this Part contains an analysis of two examples in the environmental context: state preemption of local ordinances governing concentrated animal feeding operations (CAFOs) and state preemption of local ordinances prohibiting unconventional oil and natural gas drilling. In both cases, the application of the federalism framework strongly justifies federal preemption of state law restricting localities’ authority.