Sunday, March 13, 2016

Zoning’s Centennial, Part 10: The Emergence of the Law of Sustainable Development: A Series by John R. Nolon

Part 10

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center


The Emergence of the Law of Sustainable Development


When we created and named the Land Use Law Center for Sustainable Development in 1993, we had a foggy vision of the contours of Sustainable Development Law. We knew that the advent of local environmental law, the origins of smart growth, and zoning for affordable housing traced the outlines of this field of law and practice. These movements in land use law focused on promoting and regulating economic development to meet present needs, providing for equitable community development, and preserving natural resources to meet the needs of future generations: the essential elements of sustainable development as defined in the Rio Accords of 1992.

We did not know then, however, that land use law would progress rapidly over the next quarter century to include topics as diverse as green infrastructure and biological sequestration; adaptation to sea level rise and storm surges; siting and promoting wind and solar facilities; preserving agricultural land through urban food sheds; creating livable neighborhoods through design controls; and regulating hydrofracking to protect the health of local residents.

In 1993, the technology was either nascent or did not exist for achieving high levels of on-site stormwater infiltration; constructing zero net energy buildings; measuring increases in sequestering vegetation and urban tree canopies; expanding domestic gas and oil exploration through fracking; creating clean energy facilities such as geothermal, combined heat and power, and micro-grids; developing rating systems for sustainable buildings and neighborhoods; identifying neighborhoods where high energy waste occurs; understanding ecosystem services and their values; creating metrics that identify base lines for carbon emission and measure its increases and decreases; and designing models that project the extent of sea level rise in coastal areas.

Over the past 25 years as these technologies developed, the law adapted to put them to effective use in promoting sustainability in all of its dimensions. We now know, through examining advances in technology and local law, how to achieve development that uses less material, avoids destroying wetlands or eroding watersheds, consumes less energy, eliminates or shortens vehicle trips, emits less carbon dioxide, lessens stormwater runoff, reduces ground and surface water pollution, and creates healthier places for living, working, and recreating.

This body of law is being created mainly by municipalities, which have the principal legal authority to regulate building construction, land use, and the conservation of natural resources at the local level. Increasingly, however, positive federal and state influences are speeding local adaption of sustainable law techniques.

This is evident in federal and state tax credit, spending programs, and technical assistance that promote solar and other clean energy facilities. Similarly, the Sustainable Communities Initiative – a partnership between HUD, the Department of Transportation, and EPA – has aided local efforts to achieve transit oriented development and reduce vehicle miles travelled.  HUD’s recent efforts to affirmatively further fair housing guide localities in identifying the impediments to fair and affordable housing. With coastal protection and disaster planning, federal and state efforts are helping localities, as first responders, deal with climate-induced hazards. Federal and state transportation spending is directed by federally-required Metropolitan Planning Organizations, creating one model of regional planning that involves local elected officials. In the environmental field, EPA’s stormwater management program and aligned state efforts have greatly assisted localities to reduce stormwater runoff. EPA has experimented with efforts to cooperate with local land use authorities to reduce nonpoint source pollution to achieve its Total Maximum Daily Load objectives for federally-impaired waters. These initiatives that exhibit a clear-eyed view of the importance of local land use provide a basis for a fuller integration of local, state, and federal efforts to create rational land use and transportation patterns.

The challenge ahead is to scale up the most exemplary of these integration efforts. The patterns of a more coherent framework of sustainable development law can be observed in the operations of each level of government and the close connections between economic development, environmental protection, and the promotion of equitable development.

As these patterns become better understood, the prospect brightens for a robust and integrated system of federal, state, and local laws dedicated to sustainable development and climate change management. The law has always evolved in this way to serve the needs of society. Expect as much progress in law and technology over the next quarter century as we have witnessed in the last.

For more information, see John R. Nolon, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, 24 Fordham Envtl. L. Rev. 242 (2013) and John R. Nolon, The Law of Sustainable Development: Keeping Pace, 30 Pace L. Rev. 1246 (2010).

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

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