Following Industry\u27s LEED : Municipal Adoption of Private Green Building Standards

Local governments are beginning to require new, privately constructed and funded buildings to be “green” buildings. Instead of creating their own, locally-derived definitions of green buildings, many municipalities are adopting an existing private standard created by members of the building industry: LEED (Leadership in Energy and Environmental Design). This Article explains and assesses the privately promulgated LEED standards. It argues that the translation of LEED standards, which were intended to be voluntary, into law raises several theoretical and practical problems. Specifically, private green building ordinances that rely on LEED do not ensure a reduction in the negative local environmental impacts of buildings, nor do they provide any assurance that those standards were created through a legitimate process. The Article concludes by offering an alternative approach, suggesting that municipalities should instead enact green building ordinances that have been promulgated by public governmental bodies, rather than private, industry-based organizations, and done so locally, taking into account specific local building-related and environmental concerns

The Future of Abandoned Big Box Stores : Legal Solutions to the Legacies of Poor Planning Decisions

Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use decisions and thus made deliberate determinations allowing big box development, this Article argues that those same local governments now have both an economic incentive and a civic responsibility to find alternative uses for these “ghostboxes.” With an eye toward sustainable development, the Article proposes and evaluates four possible alternative uses: retail reuse, adaptive reuse, demolition and redevelopment, and demolition and regreening. It then devises a framework and a series of metrics that local governments can use in deciding which of the possible solutions would be best suited for their communities. The Article concludes by considering issues of property acquisition and management

President Trump, the New Chicago School and the Future of Environmental Law and Scholarship

Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation have and will continue to force an expansion in the boundaries of environmental law and legal scholarship, and in our approaches to environmental regulation. Specifically, the chapter suggests the following in response to the lack of new “traditional” environmental law: (1) environmental law will continue to expand as a discipline and scholarly area of inquiry to include new subfields outside the traditional fields of air quality, water quality, and pollution control to attack environmental problems; and (2) environmental law will continue to focus on alternative methods of environmental regulation by expanding regulatory techniques, expanding the notion of what can be considered a regulated entity beyond that of large institutional stationary sources, and – in light of the new presidential administration – moving away from public environmental regulation and toward private environmental governance

Encouraging Private Investment In Energy Efficiency

Combating the negative effects of climate change requires finding ways to increase energy production while reducing energy demand. Every New England state has programs in place to encourage home and business owners to improve the energy efficiency of their buildings. Despite the clear fmancial benefits and environmental benefits that result from energy efficiency upgrades, most New Englanders have not taken advantage ofthe programs being offered by their states

Food Federalism: States, Local Governments, and the Fight for Food Sovereignty

Recently, a number of states have sought to withdraw or restrain local power. In this Article, which is part of the “Re-Thinking State Relevance” symposium hosted by the Ohio State Law Journal, I write about a state taking the opposite approach, and attempting to affirmatively endow its local governments with additional powers. The state is Maine, and the context is control over local food production and sales. This Article begins by addressing the emergence of the sustainable local foods movement broadly, and reasons for the growth of this movement. It then focuses more pointedly on the food sovereignty movement, considering the ways that this movement has sought to put control into the hands of local people, and thus local governments. This Article then considers the power struggles between state and local governments, and the reason that even strong local governments might not be able to act as forcefully as they would like in areas such as food regulation. Finally, this Article addresses Maine’s passage of a state law recognizing local food sovereignty, and the federalism concerns that this law raised. This Article seeks to present a roadmap for states that wish to play a more active role in advancing local food goals, or empowering local governments more broadly

Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores

Locavores aim to source their food locally. Many locavores are also concerned more broadly with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food — for personal use and for sale — and municipal zoning ordinances that seek to separate agriculture from residential uses. In this article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods — food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions — all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends’ microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive1 actions that people living in urban and suburban communities are undertaking to further their local food-related goals

Architectural Exclusion: Discrimination and Segregation through Physical Design of the Built Environment

The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods. Although the law has addressed the exclusionary impacts of racially restrictive covenants and zoning ordinances, most legal scholars, courts, and legislatures have given little attention to the use of these less obvious exclusionary urban design tactics. Street grid layouts, one-way streets, the absence of sidewalks and crosswalks, and other design elements can shape the demographics of a city and isolate a neighborhood from those surrounding it. In this way, the exclusionary built environment — the architecture of a place — functions as a form of regulation; it constrains the behavior of those who interact with it, often without their even realizing it. This Article suggests that there are two primary reasons that we fail to consider discriminatory exclusion through architecture in the same way that we consider functionally similar exclusion through law. First, potential challengers, courts, and lawmakers often fail to recognize architecture as a form of regulation at all, viewing it instead as functional, innocuous, and pre-political. Second, even if decision makers and those who are excluded recognize architecture’s regulatory power, existing jurisprudence is insufficient to address its harms

Banning Lawns

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States. Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing. In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns