Tag: local government law

Legal Neighborhoods

By Stephen R. Miller

Political and legal tools have emerged since the 1970s, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion, and there has been scant analysis of how these tools might work together effectively. This Article asserts that those locations in cities that evoke a “sense of place” are created not just with architectural or landscape design, but by the operation of neighborhood legal tools as well. This Article argues that cities consciously overlay the panoply of emergent neighborhood legal tools as a means of place-building. This approach is referred to in the Article as creation of a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the Article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving, in which residents feel comfortable participating, and which is proven to assist the kind of place-making that makes densely settled areas attractive. These features of the neighborhood make understanding legal neighborhoods a necessary component to any effort to address the built environment’s social, political, and especially its environmental effects, such as climate change. The Article provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.

Cite as: Stephen R. Miller, Legal Neighborhoods, 37 Harv. Envtl. L. Rev. 105 (2013).

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New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations

By Jonathan Rosenbloom

State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges that cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this Article investigates whether municipal collaborations can encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. This Article draws on the late 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on geographically situated, individual private sector collaborations, this Article envisions public sector municipal collaborations as forming around common challenges, regardless of geographic location. This Article proposes that non-place based municipal collaborations, the theoretical framework of which is not explored in the literature, allow for a reconceptualization of existing local government authority. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.

The objective of this Article is not to suggest one local government strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing how local governments confront multi-jurisdictional issues, this Article asserts that some issues are best addressed through collaboration among local governments.

Cite as: Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 Harv. Envtl. L. Rev. 445 (2012).

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Capturing Individual Harms

By Katrina Fischer Kuh

The aggregated lifestyles and behaviors of individuals impose significant environmental harms yet remain largely unregulated. A growing literature recognizes the environmental significance of individual behaviors, critiques the failure of environmental law and policy to capture harms traceable to individual behaviors, and suggests and evaluates strategies for capturing individual harms going forward. This Article contributes to the existing literature by approaching the problem of environmentally significant individual harms through the lens of environmental federalism.

Using climate change and individual greenhouse gas (“GHG”) emissions as an exemplar, the Article illustrates how local information, local governments, and local implementation can enhance policies designed to capture individual environmental harms. Local information and community-level implementation may enhance norm management efforts designed to influence GHG-emitting behaviors by (1) allowing for the identification of concrete behaviors that are feasible to target through norm management in a given community; (2) informing the design and content of norm campaigns, including the selection of the abstract norm that will form the basis of the appeal for specific behavioral change; and (3) facilitating effective implementation strategies. This framework supports a preference for local action expressed, but to date largely unexamined, in the broader norm management literature. Additionally, the Article argues that obstacles to using mandates to influence GHG-emitting behaviors may be less formidable when mandates are developed and enforced locally. Local development and enforcement of mandates can reduce intrusion objections because (1) individuals are accustomed to local control over day-today behaviors; (2) familiarity with local attitudes and practices enables the design of mandates that avoid intrusion objections; and (3) local governments are in a better position to structure time, place, and manner restrictions that channel behavior while preserving some individual choice. Local design and enforcement of mandates may also minimize the key enforcement challenges of expense, numerosity, and (in)visibility.

Cite as: Katrina Fischer Kuh, Capturing Individual Harms, 35 Harv. Envtl. L. Rev. 155 (2011).

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