Beyond Localism: Harnessing State Adaptation Lawmaking to Facilitate Local Climate Resilience

Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans tend to focus almost entirely on accommodation strategies, even when retreat strategies are warranted. The result is the continued use of land-use planning and zoning practices that allow for intensified land uses in risk-prone areas. Such maladaptive development carries with it current and future costs from locking in infrastructure and patterns of development that place people and property in harm’s way. When addressing this preparedness gap, many scholars focus on flaws in the federal flood insurance and disaster assistance programs. This Article builds on a small but growing literature on the potential for land use and other local lawmaking regimes to proactively facilitate climate resilience, and the barriers local governments face that cause them to continue to promote maladaptive development. Using New York’s recently enacted adaptation law as a case study, I ask whether state mandates and incentives, although facially limiting of local autonomy, are nevertheless needed to empower local governments to overcome otherwise intractable obstacles to decreasing the intensity of development in vulnerable areas. I conclude by identifying specific attributes of state adaptation lawmaking that may be needed to support and encourage local government efforts to promote resilience. Ultimately, I conclude that, by helping local governments overcome barriers to robust adaptive development, state lawmaking has the potential to empower local governments to proactively move people and infrastructure out of harm’s way

Community-Driven Climate Solutions: How Public-Private Partnerships with Land Trusts Can Advance Climate Action

In 2018 and 2019, several landmark developments demonstrated the failings of past efforts to address climate change and the need for new and more ambitious solutions. In October 2018, the Intergovernmental Panel on Climate Change (“IPCC”) released a dire report indicating that the window is rapidly closing for countries to dramatically reduce emissions in order to avoid the worst consequences of climate change and predicting dramatic consequences to the environment and public health if countries fail to take action; young activists started taking to the streets to demand more ambitious action to address climate change; and, at the 25th Conference of the Parties in December 2019, the United Nations issued a report that showed that not only are greenhouse gas (“GHG”) emissions not falling, but that global emissions actually grew by 2 percent in 2018. These developments demonstrate the two major failings of climate efforts to date. First, past debates about climate solutions have failed to account for key “stakeholders” who stand to lose the most if countries fail to address the problem: marginalized communities, youth and future generations, and the environment. Second, the failure of some countries to reduce emissions, even with commitments made under the 2015 Paris Agreement, demonstrates that climate change presents an intractable collective action problem. Polluters are not fully bearing the costs of the pollution they are generating and, instead, are gaining economic benefits from the exploitation of the world’s atmosphere and the consequent impacts to shared resources that will be affected by a changing climate. These failings demonstrate that dramatically different solutions are needed to address the dire threat that climate change poses to communities and ecosystems around the globe. Crafting effective climate policy will require a broad coalition of public and private stakeholders that include a diversity of voices, including those who face the greatest threats from the impacts of climate change and who have traditionally been left out of the policy debate. Effective climate action will also require that communities both reduce the carbon pollution that is causing the earth to warm (mitigation), and, at the same time, prepare for the inevitable impacts of climate change that are already locked in as a result of past emissions (adaptation). Effective solutions will also need to consider the roles and contributions of both the built and natural environments. Natural environments are not only important carbon sinks that can be critical components of mitigation efforts, but they also provide vital ecological services that will be critical to the capacity of communities to adapt to climate impacts. The built environment not only contributes significantly to greenhouse gas emissions; it also includes the systems that communities rely on to survive and thrive in the face of climate risks. Additionally, the solutions advanced need to address other socioeconomic and environmental stressors that weaken communities and ecosystems and reduce their capacity to cope with and withstand impacts from climate change (resilience). And, while governments have started to take some actions to mitigate and adapt to climate change, the efforts underway are not nearly enough to address the magnitude of the challenge. The pace and scale of action needed to slow climate change and prepare for its inevitable consequences requires dramatic changes at all levels of government and the participation of both the public and private sectors. To that end, this Article examines the potential for innovative public-private partnerships between government and land trusts as one way of advancing climate solutions in both the built and natural environments. Land trusts are non-profit organizations that hold land in trust for the benefit of the public. Land trusts can help to address many of the failings of past climate debates because, at their core, land trusts are community-oriented organizations that involve and engage a diverse array of residents and stakeholders, and were founded to steward lands for the benefit of the environment and future generations.Land trusts are already playing important roles in rural and urban communities around the country to enhance environmental sustainability and community resilience. Through legal and policy approaches, the public sector can further catalyze land trust roles to broaden the support for and efficacy of climate actions on the ground. This Article will first lay out the climate challenge, including how climate change and the solutions needed to address climate change will affect both the built and natural environments, and the failure of governments to mount an adequate response. Next, the Article will introduce land trusts and the roles that land trusts can, and are, playing in advancing sustainability and resilience in both the natural and built environments. Finally, the Article discusses ways that governments can adopt laws and policies to facilitate more robust roles for land trusts in advancing climate solutions

Comprehensive Rezonings

Of all powers given to local governments, the power to zone is one of the most significant. Zoning dictates everything that gets built in a locality—and thus effectively dictates all of the key activities that take place within it. Nationwide, most zoning codes were adopted in the first half of the twentieth century. Many, including the zoning codes of New York City and Chicago, were significantly revised in the 1960s. While these codes have been revised piecemeal, just a few American cities have undergone a comprehensive revision: replacing the old code with a completely new one. A comprehensive rezoning can allow a city to remake itself by casting off outdated requirements and codifying community priorities such as equity, sustainability, and vibrancy. Comprehensive revisions have the most promise in cities where growth is stagnant or where the economy is depressed. In those places, a zoning overhaul can signal a fresh start to attract new development and provide opportunities for creative place-making. Given the struggling state of many American cities, it is surprising that so few have thrown off the shackles of their outdated zoning codes. And given the promise of comprehensive rezonings, it is surprising that not a single law review article deals squarely with the topic. This Article provides the first law review treatment of this critically important issue. Delving deeply into recent zoning reforms of Hartford, Connecticut, this Article seeks to illustrate the power of zoning as a critical legal tool for urban revitalization. Part II provides the context for comprehensive rezonings, identifying why they may be desirable, which communities have adopted them, and what procedural and substantive issues may arise. Part III then covers four central goals that many cities share: economic growth, environmental sustainability, access and mobility, and food security. Part III also describes how Hartford used its zoning code to directly advance these goals. (In the process of rezoning, Hartford has been recognized with awards and national attention for several key decisions— including virtually eliminating parking minimums citywide.) Finally, Part IV describes some lessons learned during the rezoning process. This Article aims to encourage academics to delve further into this area of law— and to encourage policymakers to usher in new rules that promote equity, sustainability, and vibrancy

Commandeering, Preemption, and Vehicle Emissions Regulation Post-Murphy v. NCAA

The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas emissions and zero-emissions vehicle mandates. This revocation, finalized in September 2019, sparked legal challenges and debate on the role of states in environmental protection. The Supreme Court’s recent expansion of the anticommandeering doctrine in Murphy v. National Collegiate Athletic Association may signal increased constraints on federal power over states, which in turn may shed light on the permissibility of the EPA’s action to revoke California’s enhanced regulatory ability. This Note assesses the impact of Murphy on the distinction between permissible preemption and impermissible commandeering of state regulation, then applies that distinction to the vehicle emissions context. Ultimately, this Note argues that Congress and the courts should recognize the value of state involvement in environmental regulation and be wary of discarding the current dual-regulator system for vehicle emissions, owing to both policy and federalism concerns

Climate Change Meets the Law of the Horse

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the problem through unrelated, duly self-contained fields, as in the famous Law of the Horse? This Article is the first to examine that question comprehensively, to move beyond thinking about the law and climate change adaptation to consider the law of climate change adaptation. Part I of the Article lays out our methodological premises and approach. Using a model we call Stationarity Assessment, Part I explores how legal fields are structured and sustained based on assumptions about the variability of natural, social, and economic conditions, and how disruptions to that regime of variability can lead to the emergence of new fields of law and policy. Case studies of environmental law and environmental justice demonstrate the model’s predictive power for the formation of new distinct legal regimes. Part II applies the Stationarity Assessment model to the topic of climate change adaptation, using a case study of a hypothetical coastal region and the potential for climate change impacts to disrupt relevant legal doctrines and institutions. We find that most fields of law appear capable of adapting effectively to climate change. In other words, without some active intervention, we expect the law and policy of climate change adaptation to follow the path of the Law of the Horse - a collection of fields independently adapting to climate change - rather than organically coalescing into a new distinct field. Part III explores why, notwithstanding this conclusion, it may still be desirable to seek a different trajectory. Focusing on the likelihood of systemic adaptation decisions with perverse, harmful results, we identify the potential benefits offered by intervening to shape a new and distinct field of climate change adaptation law and policy. Part IV then identifies the contours of such a field, exploring the distinct purposes of reducing vulnerability, ensuring resiliency, and safeguarding equity. These features provide the normative policy components for a law of climate change adaptation that would be more than just a Law of the Horse. This new field would not replace or supplant any existing field, however, as environmental law did with regard to nuisance law, and it would not be dominated by substantive doctrine. Rather, like the field of environmental justice, this new legal regime would serve as a holistic overlay across other fields to ensure more efficient, effective, and just climate change adaptation solutions

The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?

This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States\u27 becoming a party to a binding agreement to be adopted at the 21st Conference of the Parties to the UN Framework Convention on Climate Change, which is to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, the President\u27s Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well as for its domestic implementation, overcoming the legal necessity for interaction with the Congress either before or after its conclusion