Monday, August 15, 2011

Jonathan Rosenbloom on State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations

Professor Jonathan Rosenbloom, Drake Law School, has posted New Day at the Pool: State RosenbloomJonathan Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations on SSRN.  Rosenbloom provides a novel analysis of how local governments may overcome certain problems created by state preemption laws - namely when those laws prevent local governments from reaching outside jurisdictional boundaries to address issues that do not match those boundaries. As Rosenbloom points out, "[t]he 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." 

Rosenbloom focuses on municipal collaborations as one mechanism for addressing these challenges and analyzes such collaborations within Ostrom's theoretical framework delineating "design principles" that best facilitate collective action among a group of individuals seeking to address commons problems. He applies these design principles to municipal governments that face shared commons problems and that may wish to collaborate, regardless of their geographic location. Rosenbloom notes:

"Local characteristics that go beyond geographical location yield many opportunities to collaborate on CPR challenges. Multi-jurisdictional challenges involving CPRs include water quality, waste water disposal, food supply, food security, climate change, energy, air quality, deforestation, wildlife habitat, shrinking tax base, early childhood education, traffic congestion, vacant real estate, and parks and recreation space. Although separated by miles and jurisdictional boundaries, cities experience these challenges in similar ways often based on common demographic, geographic, economic, and environmental characteristics that influence their experience with CPRs . . . ."

After applying Ostrom's design principles, Rosenbloom concludes that "Ostrom’s research offers a method for motivating local government action that operates within the confines of state preemption laws and avoids a tragedy of the commons." 

It is easy to stereotype local governments as individual "rational herders" on the commons, exercising self-interest at the expense of the wider region. Rosenbloom demonstrates that this label is often unwarranted, as structural and institutional factors often prohibit local governments from extracting themselves from commons dilemmas - such as the institution of state preemption laws. Rosenbloom provides innovative insights into ways local governments can extract themselves from such dilemmas and drop the label of "rational herder." You can see the abstract to Rosenbloom's article below. 

- Blake Hudson

ABSTRACT:

State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which 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 help encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on place-based, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article then proposes that non-place based municipal collaborations allow a reconceptualization of existing local government authority — rather than a drastic reallocation of authority from higher levels to the local level. 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 the article is not to suggest one 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 the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.

http://lawprofessors.typepad.com/environmental_law/2011/08/jonathan-rosenbloom-on-state-preemption-common-pool-resources-and-non-place-based-municipal-collabor.html

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