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Local and State Government

Summary of Discussion

  1. What existing laws will climate change affect?
  2. What Pressure points operate in these existing laws
  3. Can we change via administrative discretion (using principles)?
  4. Can we change via statutory reform (using principles)?
  5. What impacts will these legal changes have?

This group looked at the effect of climate change on local and state laws and the future in this area. Land use, and zoning laws are implicated as well as considerations inherent in land use, such as water considerations, utilities and distribution networks. As part of this focus, we must contemplate ways that federal laws or even the threat of federal action could work to effect changes on the local or state level.

Numerous current local zoning laws and regulations will be affected. Water management laws, sometimes including regulation by independent management districts will have to be looked at, which will involve issues dealing with water supply, for example assured-supply laws, concurrency requirements, water quality laws, and runoff control and management regulations. Additionally, climate change will impact federal transportation funding, which impacts state transportation decisions. Coastal zoning and the CZMA will be impacted. The public-trust doctrine, parks and recreation areas, beach regulations, and special recreation places also will be affected. Also state NEPAs (SEPAs), and environmental impact assessments will need to consider climate change. State and local infrastructure policy, its aims, goals and the methods involved will need to be evaluated with regard to climate change. Real estate disclosure laws may be impacted; many currently do not require risk notification to buyers. State, county, and city building codes, discretionary permitting, state public buildings certification, and the use of LEED requirements are also affected by climate change. Finally, private property rights will be impacted, including partial-takings statutes where they exist, and eminent domain law. In sum, climate change touches many different areas and existing local and state land use and zoning laws and regulations.

In addition, to the existing laws, enforcement issues must be considered. The so-called "teeth" behind the laws or regulations, the extent to which enforcement is a matter of policy and how political concerns impact enforcement will be important. The relative institutional capacities and competencies should be enhanced, to equip institutions to actually substantively deal with these issues. In other words, we need to consider whether dealing with climate change via these existing structures amounts to fitting square pegs in round holes. Deference among institutions, relationships between federal and state laws, and how administrative procedures will factor in are additional considerations.

The pressure points operating on the existing laws include federal funding, federal environmental laws, constitutional law or federal jurisprudence, police power, takings, dormant commerce clause, and preemption. Another pressure will be market and economic behavior, regarding real estate development and the issue of risk, lending, and insurance. Additionally, pressure points on sustainable development through incentives and tax breaks. Also, pressure on reducing litigation risks, liability, and regulatory risks associated with climate change issues.

So, there are many possibilities for change to existing laws and structures and implementation. There could be reallocations of federal and state funding, use of priorities and incentives. Also, the creation of an anti-preemption presumption, either through statute or judicially imposed, federal-state and/or state-local may be important. The local authorities may be a good place to be aggressive, and push the envelope for action even outside their authority. It is here, where the authority is not as clear, and not as likely to be challenged to implement progressive strategies. Localities may be better equipped than state to address specific issues; they have less interest gridlock, so are capable of more specificity with regard to problems in local communities and at the state level.

We will need new statutory and legislative language in zoning acts addressing climate change. This may involve a consortium of federal agencies to give weight to new language. Increased involvement from experts and the community will also be essential. Specifically the CZMA and new NEPA guidelines must be made, as well as looking at integrating carbon into transportation regimes. Always important is increased access to science and data that may lead to useful market responses and academic responses. Finally, environmental justice and equity concerns, participation of citizens, and collaboration and alliances among cities, regions and states may be needed. Harnessing "localism" often times will add to political legitimacy, but may also be a stumbling block, of stubbornness and resistance. All of these overlapping concerns must be kept in mind when thinking about climate change and its impacts on local/state law, land use and zoning law.

Additional Notes:

How does climate change affect local/state laws/land use/zoning?

  • Other foci inherent in land use
  • Water considerations (watershed, wet growth, runoff, water quality)
  • Utilities/distribution networks
  • Also, as part of this focus, must contemplate ways that federal laws/or threat of federal action could work to effect these changes on the local or state level

What is the goal for today?

  • Let's establish talking points (with substantive force and actual manpower behind them) to bring to larger publics in the future
  • Establish personal connections which maybe later evolve into task forces
  • Establish a framework to facilitate future development

What laws currently exist that operate in this arena?

  • Zoning laws/regulations
  • Water management laws (sometimes including regulation by independent management districts)
  • Issues dealing with supply, water quality laws, runoff control and management
  • Assured supply laws/concurrency requirements
  • Federal transportation funding (state transportation decisions)
  • Coastal zoning; CZMA
  • Public trust doctrine
  • Parks and recreation (beach regulations); special recreational places
  • State NEPAs, SEPAs; environmental impact assessments
  • State infrastructural policy (aims/goals/methods involved)
  • Local infrastructural policy (aims/goals/methods involved)
  • Real estate disclosure laws (* many do not currently require risk notification to buyers
  • Wildlife management
  • State/county/city building codes
  • Discretionary permitting/project-specific
  • Standards
  • Processes
  • Information
  • Decisions
  • State public buildings (including Universities) - certification; LEED requirements
  • Certification processes (LEED)...and how they are incorporated in to zoning and building codes
  • Private property rights/partial takings statutes where they exist
  • State legislation
  • Federal constitutional regime
  • Eminent domain law (great need to respond and perhaps one of our greatest tools, but giant backlash right now against eminent domain and political concerns = problematic)

Overlapping considerations:

  • Enforcement issues - what teeth are behind any of these? To what extent is enforcement a matter of policy? How do political concerns impact this?
  • Relative institutional capacities/competencies - how are these institutions equipped to actually substantively deal with these issues (would dealing with climate change via these existing institutions amount to fitting a square peg in a round hole?) To what extent does one institution defer to another or not and how is that decided/ communicated?
  • What roll will state legislatures play in:
    • Authority-granting
    • Preempting
    • Policy-setting
    • Funding
  • How will administrative procedures factor in (generally, we can enact legislation quicker than we can pass administrative rules these days)
  • Need to separate permitting concerns from rulemaking; permitting is a viable vehicle
  • Importance of planning strategies versus on-the-go confrontation (piecemeal versus comprehensive schemes)
  • Alternative pressures besides climate change impacting these areas
    • Redevelopment law
    • Tax bases
    • Stopping sprawl
  • Leads to need for school improvement (especially in urban areas); other infrastructure improvement
  • Brownfields law

What pressure points operate on these laws?

  • Federal highway funding
  • Federal infrastructure funding generally
  • Federal environmental laws
  • Displacement/preemption
  • Cooperative federalism
  • Funding
  • Regulations
  • Constitutional law/federal jurisprudence
  • Police power
  • Takings
  • Dormant commerce clause
  • Preemption
  • State interpretations; Chevron
  • Market and economic behavior
  • Real estate development - issues of risk a governing principle
  • Lending/insurance
  • Sustainable development (how to encourage); incentives, tax breaks
  • Reducing litigation risks, liability risks, regulatory risks associated with climate change issues
  • Federal flood insurance
  • Use of information/impact assessment/planning models (could be utilized as a more effective/persuasive tool) to industry/public/etc. Presentation should be:
    • Improved
    • Integrated
    • Long-range (cumulative and synergistic impacts)
  • Larger geographical scale/multiple scales
  • Perceived political implications (what politicians feel like they have to say versus what they know or believe)
  • Environmental justice/equity concerns
  • Participatory process (involve various groups at early stages and throughout process)
  • Federal regulatory preemption
  • State regulatory preemption
  • Regional collaboration (similar to water-based arrangements/CAIR)...but may require new regions/alliances with new tying features (new coastal collaboration, for example)
  • Harnessing localism - adds political legitimacy a lot of times
  • But could also be a direct stumbling block (local pride can lead to resistance, deter retreat, encourage stubbornness even in face of pending danger)
  • Human capital markets for local/city managers; company PR (what is the accountability?)

Overlapping considerations

  • How do you frame the issues?
  • How do you connect people to nature in a largely -- and increasingly - artificial world? They simply may have a deficit with regard to their understanding and value of the envirionment.
  • Public health may be a good vehicle
  • What will be the media's role?
  • What models or metrics can be used to motivate the popular will at the proper time (not too late)?
  • How can we change existing laws/structures/implementation?
    • Reallocate federal and state funding
    • Via offering of priorities/incentives
    • Do if X if you want $
    • Create anti-preemption presumption (statutory?/judicially?)
    • Federal-state
    • State-local
    • Local authorities - aggressive, push the envelope (maybe even take action even where authority isn't clear - or doesn't exist (but isn't likely to be challenged)
    • Reformulating regulatory guidelines
    • How do you address anything/everything cumulatively at the first stage?
    • Environmental impact assessments
    • Health impact assessments
    • Use of impact information in decision making
    • Executive orders
    • Increased scope of planning processes
  • Localities perhaps better equipped than state to address specific issues - fewer interest gridlocks, capable of more specificity
  • What effects would result simply from improved staff resources and expertise?
  • What is the proper role for education and public engagement?
  • What is best way to integrate group and media engagement?
  • Much could be improved simply by increasing the availability of data in general (related issue: what is the charge of universities in this regard?) (example: if each state would publish its expanding flood plains). Increased data accessibility would lead to:
  • Market response
  • Academic response

New Laws/Structures

  • Everything - suggested in jest, but sadly with more than a grain of truth
  • New statutory/legislative language in zoning acts addressing climate change
  • Perhaps supplied by a consortium of federal agencies (EPA, DOT, etc.) (would perhaps give some weight to the language; encourage adoption)
  • Increased involvement experts and community-based participants (environmental justice)
  • A new CZMA
  • ISTEA (TEA-LU) (integrating carbon into transportation regimes)
  • New NEPA guidelines (CEQ)

Overlapping considerations

  • Last time anything significant was done with zoning laws was 1920s (Standard Zoning Enabling Act)..federal people came together and it took off like wildfire..(didn't work with ALI - failure)...what does that mean for today?
  • How well do model, comprehensive acts work across wide variety of contexts?
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