Thursday, March 29, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 10: Theoretical Underpinnings of the Paris Agreement and Corollary Benefits: A Series by John R. Nolon

This post is the final issue in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Theoretical Underpinnings of the Paris Agreement and Corollary Benefits

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University


The Conference of the Parties in Paris called for Nationally Determined Contributions to climate change mitigation, embracing bottom-up state and local mitigation strategies. Surprising to some, this move is supported by sound theory emanating from many sources and disciplines.  These include, inter alia, the United Nations Environmental Programme (UNEP), the Intergovernmental Panel on Climate Change (IPCC), two Nobel Laureates (one in Physics, the other in Economics), two prominent law professors, and a sociologist. This blog series ends with a restatement of the theoretical underpinnings of Low Carbon l=Land Use and its corollary benefits, which transcend climate change and further demonstrate the wisdom of relying on local land use power.

The UNEP calls for the adoption of national framework laws for environmental protection. Such laws begin with a statement of goals and policies and create logical institutional arrangements among levels of government.  They create nested hierarchies of governmental agencies that coordinate responsibilities based on the competencies of each level of government.

The IPCC added a chapter on the relationship between the shape of human settlements and climate change mitigation in its Fifth Assessment Report, published in 2014, a year prior to the Paris Conference of the Parties. The chapter addresses the effects of urban growth on climate change, focusing on urban form, infrastructure, and land use mix. It notes that “areas with a high mix of land uses encourage a mix of residential and retail activity and that mixed land uses reduce the amount of Greenhouse Gasses by creating efficient use of energy and reducing vehicle miles travelled and auto emissions.” It recognizes that local governments are critical actors who shape these kinds of neighborhoods.

Yale law professor Robert C. Ellickson warns against the “Yale disease,” which he calls the propensity of his students to look entirely to federal laws and federal courts for solutions. He refers to the “principle of subsidiarity,” which holds that responsibility for dealing with a problem should be delegated to the most decentralized institution capable of handling that problem.   His instinct is supported by Nobel Laureate in Economics, Dr. Elinor Claire Ostrom. Her view of governmental strategies is that they should be “polycentric”. She warns against the “panacea effect,” which is akin to the Yale disease. She too would assign key decision responsibility to those who are as close to the scene of relevant events and to the actors involved. 

Law professor I. Michael Heyman, with whom we met when we founded the Land Use Law Center 25 years ago, headed the Smithsonian Institution at the time and was known to us as a former Professor of Law and of City and Regional Planning at Berkeley and former Chancellor of the University of California. We had just completed a study of the sustainability of the Hudson Valley Region and were deeply concerned about the damage to natural resources caused by sprawl: the result of land use plans adopted by over 200 constituent local governments. He suggested that, to foster sustainable human settlements, we build interconnected networks of local land use leaders, as he and others had done with the several communities that share land use jurisdiction in the Bay Area in San Francisco.

Nobel Laureate in Physics, Dr. Murray Gell-Mann, attended our meeting with Professor Heyman. He had just been dubbed the “man who knows everything” by the New York Times. Dr. Gell-Mann helped to establish the Santa Fe Institute, was on the board of the MacArthur Foundation, and had just published his book on sustainability, The Quark and the Jaguar. As a physicist, he based much of his thinking on the function of “complex adaptive systems” in nature and human communities.  His writings focused on how ecological systems and human communities adapt to stress and crises. He discovered that healthy systems are divided into components that communicate regularly and rapidly to sense impending threats and to determine how to respond effectively. Both he and Professor Heyman pointed out that the land use boards within the typical local government are not communicating effectively and need to be trained to do so. Similarly, local governments that share challenges regionally do not plan together, and thus have difficulty perceiving the threats of sprawl and developing strategies for responding.

All change related to land use manifests at the local level and it is there that land use plans and regulations need to be changed to reorder human settlements. Sociologists study how change happens. One term for what they observe is the “diffusion of innovation,” popularized by Dr. Everett Rogers. Diffusion, he notes, includes the planned and spontaneous spread of new ideas, such as methods of containing sprawl, or implementing measures to mitigate climate change. We adopted his notions in establishing the Land Use Alliance Leadership Training Program and selected local “champions of change,” as Rogers labels them, to attend our training program. We learned from Rogers that change happens when local champions reach out beyond their jurisdictions to peers and respected change agents to solve local problems, so we brought these resources into our training programs. When my Yale students explored why communities adopted exemplary local environmental laws they found out that most resulted from the work of community leaders reacting to damage to the local environment and they named these perturbations and called this the “perturbation effect.”

Shortly after we met with Professor Heyman and Dr. Gell-Mann, we started working with the City of Yonkers on the Hudson Park development, where we learned about the corollary benefits to the environment of transit-oriented development, a key climate change mitigation method. We knew that capturing the expanding population of the region in well-planned urban developments would counter sprawl, but we did not recognize the numerous other benefits of such projects.  Hudson Park is a compact, mixed-use development at the Yonkers train station: an express stop on the MetroNorth commuter rail line. The project was built at a density of 130 du/acre to create the ridership needed by the railroad. Compared to sprawling subdivision developments, Hudson Park reduces average per household impervious coverage by 96%, lowers per capita water use by 60%, and avoids disrupting wetland and watercourse environments needed for adaptation to climate change. At 90% coverage, Hudson Park paved over 36,000 sq. ft. per acre and at 130 du/acre that amounts to 275 sq. ft. coverage per household. The average suburban single-family home on a half-acre, in contrast, will create 8,000 sq. ft. of impervious coverage per household.

The conclusion here is that working at the local level on developments that mitigate climate change leverages many other environmental benefits. These include stormwater management, water conservation and quality, public health, and natural resource conservation. Paris and the IPCC adopted mitigation strategies supported by sound theoretical underpinnings and turned the attention of policy makers and critical actors to the local scene. Basing climate change management strategies on a sound local footing leverages a range of other needed changes. It takes advantage of that level of government’s significant legal authority, which is in the hands of champions of change who will not abide other environmental perturbations.

See Champions of Change:  Reinventing Democracy Through Land Law Reform

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

Post 9:  Community Power and Renewable Energy

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