Wednesday, December 8, 2010
Ashira Ostrow (Hofstra) has posted Process Preemption in Federal Siting Regimes, forthcoming in the Harvard Journal on Legislation, Vol. 48 (2011). The abstract:
Historically, land use regulation has been considered a matter of local concern. The federal government left land use to the states, and the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by a multi-jurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. To that end, Congress has experimented with a variety of preemption regimes aimed at compelling local governments to site nationally relevant facilities, such as radioactive waste disposal facilities and telecommunication towers.
This Article explores the spectrum of federal preemption options, ranging from federal delegation, empowering states to independently design and implement siting regimes, to unitary federal preemption, vesting siting authority in a federal administrative agency and displacing traditional state and local land use authority. In particular, this Article identifies an innovative approach to facilities siting, termed “Process Preemption.” In a Process Preemption regime Congress imposes federal constraints on the siting process, but leaves primary decisionmaking power in the hands of local land use regulators. This Article argues that Process Preemption has the potential to aid in federal siting schemes because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use priorities and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance, of controversial siting decisions.
Prof. Ostrow's article is the co-winner of this years AALS scholarly paper competition, with her presentation to be featured at the January meeting in San Fransisco. Be sure to check it out!
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Jack Reid on Shocking Allegations of Rough Justice at a P&Z Hearing in the Rural West: Environmental Activist Opposing Oil and Gas Project at Public Hearing Charged with Criminal Trespass and Spends Five Days in Isolation
- Deborah Curran on Field notes on navigating a POPO
- Stephen Miller on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- Ben Davy on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- Jesse Richardson on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- The failure of economic development in Baltimore – and Milwaukee
- Shocking Allegations of Rough Justice at a P&Z Hearing in the Rural West: Environmental Activist Opposing Oil and Gas Project at Public Hearing Charged with Criminal Trespass and Spends Five Days in Isolation
- Cheever & Owley on Enhancing Conservation Options
- Planning for States and Nation-States in the U.S. and Europe
- New study highlights worker conditions in the sharing economy