Friday, December 16, 2016

ELC Essay #11: Less than Zero: The Zero-Sum Game that Hurts Local Communities & Ecologies

Jonathan Rosenbloom

Local communities and their ecology suffer hardship from a zero-sum game over governance authority. This game pits communities (and their local governments, including special purpose districts) against state governments in a constant and unwinnable(ish) conflict over the authority to regulate (or, often, not regulate). Although this zero-sum game is a struggle between states and communities over the authority to regulate, the manner in which it is skewed against local communities has dire consequences on the environment and discourages local communities from protecting and investing in their local ecology.

In our federalist form of government, states hold plenary power. Since the mid-nineteenth century, most courts have held that local governments are creatures of and subject to the whim of state legislatures. Two limitations on state legislative control over local communities are state constitutions (see, e.g., Robinson Township v. Commonwealth (holding state’s attempt to preempt local government regulation of fracking was in violation of state constitution)) and state statutes (see, e.g., Virginia Code § 15.2-2280 (authorizing local communities to regulate land uses)).

State and local governments frequently exercise regulatory authority over critical environmental issues, such as those related to fracking, waste management, and water. As a legal matter, local authority to intervene in potentially controversial activities may turn on whether that authority has been preempted by the state or even the federal government. While the preemption analysis varies by state, it typically prohibits local governments from regulating: (1) where the state expressly preempts local action; (2) where the state heavily regulates the field (but does not expressly preempt); and (3) where there is a direct conflict between the state and local regulation (again, in lieu of express preemption).

Preemption analysis is structured in a way that forms a zero-sum game. If the state wins and preempts a local law, the local community loses the ability to regulate in that area and the local action is null and void. In rare cases where local communities win (see, e.g., Robinson), states may or may not have concurrent authority. While state and local governments often simultaneously regulate, zero-sum disputes typically arise after an actual conflict surfaces and the case turns to preemption—where there can be only one winner.

When it comes to the environment, structuring local authority to regulate around a zero-sum game has at least two unintended consequences: (1) it may be perceived as absolving some governmental entity (whichever loses the preemption struggle) from responsibility over the sustainable management of natural resources; and (2) it discourages local communities (typically the losers in preemption struggles) from investing in their ecology by disempowering them, even though they often have the greatest potential exposure to environmental harms.

The regulation of pesticides and fertilizer in the Mississippi watershed provides an example of communities having little or no regulatory authority over a natural resource, even though that resource is critical to the provision of local services and pollution of that resource directly affects them. Most of the regulatory authority over agricultural run-off of fertilizers and pesticides is left to the states (the Clean Water Act exempts agricultural run-off from federal regulation, although this is being challenged in Bd. of Water Works Trustees v. Sac Cty. Bd. Of Super., No. C 15-4020-MWB (U.S.D.C., N.D.Ia.)). Whether local governments are authorized to regulate in large part depends on whether the relevant state has preempted local authority.

In most agricultural states in the Mississippi watershed the regulation of pesticide and fertilizer by local governments is pretty straightforward—they can’t do it. In Iowa, for example, “A local governmental entity shall not adopt or continue in effect local legislation relating to the use, sale, distribution, storage, transportation, disposal, formulation, labeling, registration, or manufacture of a pesticide” I.C.A. § 206.34; and “A local governmental entity shall not adopt or continue in effect local legislation relating to the use, sale, distribution, storage, transportation, disposal, formulation, labeling, registration, or manufacture of a fertilizer or soil conditioner.” I.C.A. § 200.22.

To be sure, Iowa is not alone. Twenty-nine states expressly preempt local governments from interfering with pesticide use and fourteen more allow local governments to act only upon approval from state agencies. Only five allow local governments to regulate pesticide use in their local communities—and none are in the Mississippi watershed.

Here is an example of the state “winning” the zero-sum game through express preemption. The state wins in the sense that it, and not the local community, has the authority to regulate (when the state exercises that authority, the actual winner may be the farming industry and the losers are those dependent on the water as drinking water).

Even when a state does not expressly preempt local action, it can still “win” and displace local control. For example, Humboldt County, Iowa passed an ordinance stating: “No person . . . shall . . . apply livestock manure on any land in Humboldt County that drains into an agricultural drainage well or sinkhole in a manner that results in the contamination of groundwater.” The Iowa Supreme Court struck down the ordinance, ruling it was preempted because it established a higher standard than the state’s standard for the regulation of confined animal feeding operations. Goodell v. Humboldt. Here was an attempt by a local community to internalize or manage the external impacts stemming from agricultural run-off in its jurisdiction, and that ordinance was struck down because it provided more protection.

The examples above illustrate that allocating authority in a zero-sum way disconnects communities from their ecology, even though communities are primarily responsible for securing and maintaining critical services that depend on the local ecology. For example, run-off deteriorates the very ecosystem (resulting in toxic algae blooms and the dead-zone in the Gulf of Mexico) communities’ rely on to provide basic services (such as, potable water, ex. Des Moines Water Works struggles with extracting nutrients out of water; and recreation, ex. on August 5, 2016 the Iowa Dep’t of Natural Resources marked “swimming not recommended” in at least fifteen rivers).

Prohibiting or discouraging local communities from implementing best practices to sustainably manage the watershed, including buffer strips, zoning for manure stacks, limits on storage and application, and set-backs, disincentivizes communities from engaging and protecting their local ecology. This is not to suggest that local governments always seek to protect natural resources. Rather, it is to suggest that local governments be permitted to take action when they are protecting the health of their local ecology.

The examples also raise unexplored questions, including: Whether the state vs. local binary analysis oversimplifies the complexities embedded in regulating multi-jurisdictional ecosystems? Is state preemption a hidden means to permit one local use with large externalities to trump another local use that wants to stop those externalities? As it stands, structuring local communities’ authority around zero-sum battles results in the environment getting the short end of the stick and communities coming out less than zero.

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