Hudson on Land Use Related Disaster Law

Blake Hudson (Stetson) has posted Reconstituting Land Use Federalism to Address Transitory and Perpetual Disasters: The Bimodal Federalism Framework (BYU Law Review) on SSRN.  Here's the abstract:

Scholars analyzing the intersection of federalism and disaster law and policy have primarily focused on the difficulties federalism poses for inter-jurisdictional coordination of disaster response. Though scholars have highlighted that rising disaster risks and costs are associated with 'land use planning that exacerbates, rather than mitigates, disaster risk,' a more holistic analysis of land use-related disaster law and policy is needed. This article provides a more comprehensive framework within which to analyze prospective mitigation or prevention of disaster risk and costs through a rebalancing - or reconstituting - of the respective roles of the federal and state governments in land use planning. The federal government does not currently maintain direct regulatory inputs into a variety of land use policies that exacerbate disaster risks and costs- an apprehension that likely results from the history of jurisprudence declaring that land use regulation is the 'quintessential state and local government' activity under the Constitution. Even so, greater federal regulatory inputs for certain disasters are needed in circumstances where state and local governments fail to formulate standards, especially due to the national interests at stake and the greater capacity of the federal government to coordinate standards for disasters with very large inter-jurisdictional impacts. For other land use-related disasters federal inputs may be less necessary, though overlapping regulatory policies of federal, state, and local governments can yield even more robust disaster mitigation and prevention policies.

This article first categorizes the various disasters that implicate state and local government land use planning along a 'transitory-perpetual' spectrum. This spectrum provides a frame of reference for assessing which land use-related disasters are more localized with shorter temporal effects, and which therefore may require fewer federal inputs, and those that have far longer temporal effects and larger inter-jurisdictional impacts of nationwide import, therefore requiring greater federal input. The spectrum further provides a framework for determining the viability, from a constitutional perspective, of federal regulatory inputs into land use planning for which more federal inputs may be needed. This constitutional analysis is undertaken in the context of a theory of “Bimodal Federalism,” which integrates two modes of operation of modern U.S. federalism, acknowledging the trend toward new 'Dynamic Federalism' theory that normatively disregards separate constitutional spheres of authority for the state and local governments, while also incorporating the reality that remnants of 'Dual Federalism' theory still inform constitutional jurisprudence related to certain subject matters - like land use planning.

Finally, based upon the transitory-perpetual spectrum categorizations and informed by bimodal federalism analysis, the article assesses the appropriate legislative mechanisms for reconstituting land use disaster federalism. The article hypothesizes that those disasters closer to the perpetual end of the spectrum also happen to be the ones for which top-down federal inputs into land use policy are both more desirable and less constitutionally suspect. Correspondingly, for land use-related disasters that are more transitory in nature, top-down federal inputs may be more constitutionally suspect, thus calling for a need to explore bi-lateral and horizontal mechanisms of reconstituting federalism for all categories of disaster.

Steve Clowney