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The Urban Environmental Renaissance

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The Urban Environmental Renaissance The Urban Environmental Renaissance Katrina M. Wyman & Danielle Spiegel-Feld* City governments were an important source of environmental protection in the United States from the 1800s until well into the 1900s. However, since Congress passed a series of landmark environmental statutes in the 1970s, scholars have primarily equated environmental law with federal law. To the extent that scholars consider subnational sources of environmental law, they typically focus on states, rather than cities. This article shines a light on the role of cities in contemporary environmental law. It argues that major U.S. cities are currently reviving cities’ historical role as leaders in environmental lawmaking and proposes mechanisms for expanding their scope to innovate within the framework that the 1970s federal environmental statutes established. The article makes three significant contributions to existing literature. First, it resurrects the little-known history of early municipal efforts to protect their environments, which illustrates cities’ long-standing interest in environmental matters. Second, the article incorporates an original survey of environmental policies that cities have developed in recent years, which demonstrates the breadth of largely overlooked lawmaking. Third, the article offers a framework for conceptualizing the interplay between federal, state, and local laws and suggests strategies for finding greater space for municipal policy experimentation within cities’ jurisdictional authority. Introduction ............................................................................................ 306 I. From Local to Federal Environmental Law ........................................ 312 A. The Original Urban Environmental Leaders ....................... 312 DOI: https://doi.org/10.15779/Z38DZ0325P Copyright © 2020 Katrina M. Wyman & DaniEllE SpiEgEl-Feld. * Katrina M. Wyman is thE Sarah HErring Sorin ProfEssor of Law at NYU School of Law, whErE DaniEllE SpiEgEl-Feld is an Adjunct ProfEssor and ExEcutivE DirEctor of thE Guarini CEntEr on EnvironmEntal, EnErgy, and Land Use Law. The article benefitted tremendously from comments from Nestor Davidson, Clayton GillEttE, Mark IzEman, Richard Lazarus, Michael Livermore, Richard RevEsz, Rich SchraggEr, ElizabEth StEin, and Richard StEwart; and from prEsEntations at thE 2018 PropErty-Works-in-ProgrEss and FuturE EnvironmEntal Law ProfEssors confErEncEs. ZoE PalEnik and Sara Savarani providEd EXcEllEnt rEsEarch assistancE. The work of the Editors of the California Law Review also significantly improved the articlE. 305 306 CALIFORNIA LAW REVIEW [Vol. 108:305 B. The Emergence of Federal Environmental Dominance ...... 318 II. What Cities Are Doing Now and Why .............................................. 325 A. Cities’ Contemporary Motivations to Promote Environmental Protection ............................................................................. 326 B. The New Wave of Urban Environmental Laws .................. 337 III. Giving Cities More Space to Experiment with Environmental Policy ..................................................................................................... 348 A. Finding Space within Federal Law ...................................... 350 B. Finding Space within State Law .......................................... 358 Conclusion .............................................................................................. 363 Appendix A: Sources for Table 1: Survey of Contemporary Urban Environmental Laws ................................................................... 364 INTRODUCTION For over a hundred years, cities were an important source of environmental protection in the United States. In the 1800s and early 1900s, cities arranged for the supply of drinking water for their growing populations, passed laws in an effort to keep that water clean, developed systems to manage wastewater, and enacted pioneering air pollution ordinances. States gradually assumed a greater role in environmental protection in the late nineteenth century, and then the federal government did so after World War II.1 In the 1970s, federal authorities took over primary responsibility when Congress passed a series of landmark environmental statutes, including the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act.2 Since then, for almost five decades, scholars have primarily equated environmental law in the United States with federal environmental statutes and regulations. Environmental law scholarship tends to focus on the federal regulatory process, and environmental law classes teach the major federal environmental law statutes.3 To the extent that there has been a focus on 1. Martin V. Melosi, Environmental Justice, Political Agenda Setting, and the Myths of History, 12 J. POL’Y HIST. 43, 57–59 (2000) [herEinaftEr MElosi, Myths of History]; see also MARTIN V. MELOSI, THE SANITARY CITY (2008) [herEinaftEr MELOSI, THE SANITARY CITY]; Martin V. MElosi, Lyndon Johnson and Environmental Policy, in THE JOHNSON YEARS, VOLUME TWO: VIETNAM, THE ENVIRONMENT, AND SCIENCE (RobErt A. DivinE Ed., 1987). 2. JAMES E. KRIER & EDMUND URSIN, POLLUTION & POLICY: A CASE ESSAY ON CALIFORNIA AND FEDERAL EXPERIENCE WITH MOTOR VEHICLE AIR POLLUTION, 1940–1975, at 10 (1977); Jody FreEman, The UncomfortaBle Convergence of Energy and Environmental Law, 41 HARV. ENVTL. L. REV. 339, 348–49 (2017). 3. See, e.g., John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL L. REV. 365, 374 (2002) (“ThE rolE of local govErnmEnts is only briEfly mentionEd in Environmental law casEbooks . ConcEptually, thE rolE of local govErnmEnt is sEEn as that of an incidEntal participant in a fEdEral system of EnvironmEntal law.”); KathErinE A. Trisolini. All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, 62 STAN. L. REV. 669, 674–75 (2010) (“MorE broadly, local govErnmEnts arE largEly ovErlookEd as relEvant actors in acadEmic discussions of EnvironmEntal law.”). ThEre are notablE EXcEptions to thE 2020] THE URBAN ENVIRONMENTAL RENAISSANCE 307 nonfederal sources of environmental law, it has been largely about the role of the states—most notably California—not cities.4 Scholars mainly seem to pay attention to the potential to advance an affirmative environmental agenda at the local and state levels when Republican dominance in Washington leaves the federal government inhospitable to environmental protection.5 This article argues that major cities have a growing role to play in securing environmental protection, not just because of the current political climate in Washington, but for fundamental structural reasons. The regime of federal dominance that arose in the 1970s reflected a confluence of factors that no longer entirely apply. Nineteenth- and twentieth-century urbanization, industrialization, and suburbanization gave rise to vast air and water pollution problems that cities and states could not and would not address on their own. This was in part because the polluting industries accounted for significant portions of their economic base, and in part because the pollution often crossed municipal and state boundaries. Because this pollution was a side effect of socially useful industrial processes such as large-scale utility electricity generation, regulation necessitated trade- offs about how much pollution should be allowed given the benefits of the activities in which it was generated and the need to protect public health. Making these trade-offs required investments in scientific and economic analysis that the federal government was best able to make on behalf of the nation as a whole. Moreover, implementing the selected standards required coordinating the activities of private and public actors across multiple jurisdictions, and investing general scholarly tEndency to neglEct the rolE of citiEs in EnvironmEntal law. See, e.g., JOHN R. NOLON, PROTECTING THE ENVIRONMENT THROUGH LAND USE LAW: STANDING GROUND (2014); Sara C. Bronin, Energy in the Ecopolis, 45 ENVTL. L. REP. 10514 (2015); Sarah Fox, Home Rule in an Era of Local Environmental Regulation, 44 ECOL. L. Q. 575 (2017); Trisolini, supra. 4. On California’s leadership role in reducing conventional air pollution, and, more recently, grEEnhousE gas Emissions, from cars, sEE Ann Carlson, The Trump Administration’s Assault on California’s GloBal Climate Leadership, 112 AJIL UNBOUND 269 (2018); see also Ann E. Carlson, Iterative Federalism and Climate Change, 103 NW. U. L. REV. 1097 (2009) [herEinaftEr Carlson, Iterative Federalism]. As ProfEssor MichaEl LivErmorE has obsErvEd, “[i]n thE UnitEd StatEs, decEntralization is oftEn associatEd with fEderalism and devolution of authority to the statEs.” MichaEl A. LivErmorE, The Perils of Experimentation, 126 YALE L.J. 636, 701 (2017) (citing Edward L. Rubin & Malcolm FEElEy, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994)). 5. See, e.g., RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 249–50 (2004) (referring to statEs filling thE void during the Early years of the GEorge W. Bush administration); DEnisE A. Grab & MichaEl A. LivErmorE, Environmental Federalism in A Dark Time, 79 OHIO ST. L.J. 667 (2018) (dEscribing thE rolE of “blue” states in making up for the federal leadership deficit under President Trump). Richard REvEsz is an EXcEption. During thE Clinton Era, hE publishEd sEvEral articlEs underscoring the potEntial for statE EnvironmEntal rEgulation to develop
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