Addressing Climate Change at the State and Local Level: Using Land Use Controls to Reduce Automobile Emissions
Abstract
:1. Introduction: The Necessity for Sub-Federal Action
2. CO2 Emissions, the Automobile and Land-Use Patterns
2.1. Why and How the United States Institutionalized Automobile Dependence through Sprawl
2.2. The Case against Sprawl
3. California Tackles Sprawl: From Direct Regulation of Emissions to CEQA Litigation
3.1. AB 32: The First Step
3.2. Beyond the Internal Combustion Engine to Modifying Driving Patterns
4. A County Forced to Consider GCC Mitigation Strategies
4.1. The Law Suit
4.2. California Environmental Impact Assessment Law and GCC
4.3. The Settlement of the Litigation
4.4. Post Settlement Legislation
5. Marin County: A Case Study of Using Land-Use Regulation to Curb Climate Change
6. Conclusions
References and Notes
- Professor Tarlock presented a partial version of this paper at a seminar in the Center for Urban and Regional Studies in the School of Architecture and Town Planning, Technion, Haifa, Israel, 1 July 2009, and he thanks Professor Rachelle Alterman, head of the center for Urban and Regional Studies for organizing the seminar.
- Bosselmann, K. Ecological Justice and Law. In Environmental Law for Sustainability; Richardson, B., Wood, S., Eds.; Hart Publishing: Oxford, UK, 2006; Volume 129, pp. 150–155. [Google Scholar]
- See Weston, B.H.; Bach, T. (Eds.) Recalibrating the Law of Humans with the Law of Nature: Climate Change, Human Rights, and Intergenerational Justice; Vermont Law School: South Royalton, VT, USA, 2009. Available online: http://international.uiowa.edu/centers/human-rights/documents/CLI_Policy_Paper.pdf (accessed on 17 May 2010). The ethical duty to practice sustainable development is complemented by the intergenerational equity principle which posits “that future generations ... have a legal right to ecological protection” which includes the projected adverse consequences of global climate change (GCC).
- In July 2009, the United States House of Representatives passed weak greenhouse gas emission reduction legislation, but as of December, 2009, the United States had not acted on the Senate version of the bill.
- The American Clean Energy and Security Act of 2009; An Energy Bill in the 111th United States Congress (H.R.2454); Approved by the House of Representatives on 26 June 2009.
- Cal. Health & Saf. Code §38500, et seq.; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Cal. Health & Saf. Code §38550; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Cal. Health & Saf. Code §38530; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2008, Executive Summary; US Environmental Protection Agency: Washington, DC, USA, 2010. Available online: http://epa.gov/climatechange/emissions/downloads10/US-GHG-Inventory-2010_ExecutiveSummary.pdf (accessed on17 May 2010).
- Buzbee, W.W. Urban Sprawl, Federalism and the Problem of Institutional Complexity. Fordham Law Rev. 1999, 68, 57–136. [Google Scholar]
- Duany, A.; Plater-Zyberk, E.; Speck, J. Suburban Nation; North Point Press: New York, NY, USA, 2000. [Google Scholar]
- These policies, many of which are highly debatable, include (1) the high cost of car ownership and operation, (2) subsidies to promote agricultural land retention, and (3) central government provision of many urban services. Nivola, P. Are Europe’s cities better? The Public Interest. Fall 1999. No. 137. Available online: http://www.nationalaffairs.com/public_interest/detail/are-europes-cities-better (accessed on 17 May 2010).
- Montiero, T.L.M. Preserving Europe’s Heritage: Biodiversity, Landscape, and Agri-cultural Policy in Confederated Europe. Environ. Law Report. News Anal. 2005, 35, 10065–10072. [Google Scholar]
- An urban historian has criticized the model of the city adopted by new urbanists as “a kind of City Life” that celebrates consumerism at the expense of citizenship. Bender, T. Toward a New Metropolitanism and a Pluralized Public? In Proceedings of an International Conference on Towards a New Urbanism,, Berlin, Germany, 29 June–1 July 2000; Available online: http://www2.rz.hu-berlin.de/amerika/projects/newurbanism/nu_pt_bender_a.html (accessed on 17 May 2010).
- Our Built and Natural Environments: A Technical Review of the Interactions between Land Use, Transportation, and Environmental Quality; EPA 231-R-01-002; US Environmental Protection Agency: Washington, DC, USA, January 2001. Available online: http://www.epa.gov/dced/pdf/built.pdf (accessed on 17 May 2010).
- Ewing, R.; Pendall, R.; Chen, D. Measuring Sprawl and Its Transportation Impacts. Transp. Res. Rec. 2003, 1831, 175–183. [Google Scholar] [CrossRef]
- Gallagher, P. The Environmental, Social, and Cultural Impacts of Sprawl. J. Nat. Resour. Environ. 2001, 15, 219–223. [Google Scholar]
- Dernbach, J.; Bernstein, S. Pursuing Sustainable Communities: Looking Back, Looking Forward. Urban Law. 2003, 35, 511–512. [Google Scholar]
- Kaswan, A. Climate Change, Consumption, and Cities. Fordham Urban Law J. 2009, 36, 253–319. [Google Scholar]
- 272 U.S. 365 (1926), United States Supreme Court: Washington, DC, USA, 1926.
- In his important study of Illinois land use, the eminent United States land-use scholar Fred Bosselman concluded that the law remains to large extent the product of nineteenth century attitudes “which caused its residents to view land itself simply as another form of capital that could be made ‘abstract, standardized and fungible’ through the ‘alchemy’ of commodification”. Bosselman, F.P. The Commodification of Nature’s Metropolis: The Historical Context of Illinois Unique Zoning Standards. North Ill. Univ. Law Rev. 1992, 12, 527–588. [Google Scholar]
- Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252 (1977), U.S. Supreme Court: Washington, DC, USA, 1977.
- The current Supreme Court’s indifference to not-so-subtle racial discrimination is illustrated by City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 123 S.Ct. 139 (2003) (city’s processing of referendum which targeted a low-income housing project and was tainted by discriminatory purposes was not an unconstitutional violation of developer’s rights).
- Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). The creation of independent suburbs with no duties to the larger urban region became after the Civil War.
- Keating, A.D. Building Chicago: Suburban Developers and the Creation of a Divided Metropolis; University of Illinois Press: Champaign, IL, USA, 2002; pp. 79–118. [Google Scholar] Traces the evolution of the Chicago metropolitan area, which does not differ significantly from other similar United States areas. She identifies that passage of a general incorporation law in 1872 as the major factor in substantially confining Chicago’s spatial growth to its present boundaries by the end of the 19th century.
- Milliken v. Bradley. 418 U.S. 717 (1974), U.S. Supreme Court: Washington, DC, USA, 1974.
- Davis, J.S.; Seskin, S. Impact of Urban Form on Travel Behavior. Urban Law. 1997, 29, 215–232. [Google Scholar]
- Jackson, K.T. The Crab Grass Frontier: The Suburbanization of the United States; Oxford University Press (USA): New York, NY, USA, 1985; p. 304. [Google Scholar]
- For a more recent articulation of this position see Ziegler, E.H. American Cities, Urban Collapse and Environmental Doom. Plan. Environ. Law 2008, 60, 4–9. [Google Scholar]
- There has been a spate of recent “revisionist” scholarship which takes a much more favorable view of the suburban experience compared to most land-use planners and urban historians. See Garnett, N.S. Save the Cities, Stop the Suburbs? Yale Law J. 2006, 116, 598–630. [Google Scholar] for a critical review of this literature.
- The structural reasons for sprawl are well-addressed in Buzbee, W.W. Urban Sprawl, Federalism and the Problem of Institutional Complexity. Fordham Law Rev. 1999, 68, 57–136. [Google Scholar]
- Tarlock, A.D. Fat and Fried: Linking Land Use Law, the Risks of Obesity, and Climate Change. Pitt. J. Envtl. Pub. Health L. 2009, 3, 31–55. [Google Scholar]
- Belmont, S. Cities in Full: Recognizing and Realizing the Great Potential of Urban American; APA Planners Press: Chicago, IL, USA, 2002. [Google Scholar]
- Bertaud, A. The Spatial Structures of Central and Eastern European Cities: More European than Socialist? Available online: http://alain-bertaud.com/AB_Files/AB_Central%20European%20Spatial%20Structure_Figures_2.pdf (accessed on 17 May 2010). Defines a classic european city as “a dominantly monocentric structure with a center where exceptionally rich cultural amenities and prestigious retail reenforce its monocentric character. The monocentricity is maintained by prestigious amenities in spite of many jobs moving to the suburbs. As a corollary to the strongly attractive center, an efficient radial transit network make the center accessible even when many job commuting trips are made by individual cars from suburbs to cities”.
- Kunstler, J.H. Home from Nowhere; Touchstone: New York, NY, USA, 2000. [Google Scholar]
- Potter, D. People of Plenty; University of Chicago Press: Chicago, IL, USA, 1954. [Google Scholar]
- Many urban officials and planners have been influenced by the work of Richard Florida who argue that cities will only prosper if they provide the necessary public amenities to attract creative talents. e.g., Florida, R. The Rise of the Creative Class: How It’s Transforming Work, Leisure, Community and Everyday Life; Basic Books: New York, NY, USA, 2002. [Google Scholar]Cities and the Creative Class; Routledge: New York, NY, USA, 2003. and Who’s Your City?: How the Creative Economy is Making Where to Live the Most Important Decision of Your Life; Basic Books: New York, NY, USA, 2009.
- More and more cities are also adapting to global climate change by adopting strategies pioneered in Europe. e.g., Beatley, T. Green Urbanism: Learning from European Cities; Island Press: Washington, DC, USA, 2000. [Google Scholar]
- Cal. Health & Saf. Code §38560; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Cal. Health & Saf. Code §38562; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Cal. Health & Saf. Code §38560.5; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Air Board Passes Two Major Building Blocks in State’s Effort to Fight Global Warming; Release 07-59; Air Resources Board, California Environmental Protection Agencys: Sacramento, CA, USA, 6 December 2007. Available online: http://www.arb.ca.gov/newsrel/nr120607.htm (accessed on 17 May 2010). (The largest facilities in the state, which account for 94 percent of industrial and commercial stationary source greenhouse gas emissions, will be required to report their greenhouse gas emissions on an annual basis beginning with emissions in 2008 to be reported in 2009).
- California State Motor Vehicle Pollution Control Standards-Request for Waiver of Preemption Under Clean Air Act Section 209(b) for Greenhouse Gas Emissions; California Air Resources Board: Sacramento, CA, USA, 2006. Available online: http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-OAR-2006-0173-0004 (accessed on 17 May 2010).
- 42 U.S.C. §7543(a); Thomson-West: Eagan, MN, USA, 2003.
- 42 U.S.C. §7543(b); Thomson-West: Eagan, MN, USA, 2003.
- See also Notice of Decision Denying a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles. In Federal Register; 2008; 73, pp. 12156–12169. Available online: http://wais.access.gpo.gov (accessed on 17 May 2010).
- State of California v. United States Environmental Protection Agency. Petition for Review of Decision of the United States Environmental Protection Agency; US Environmental Protection Agency: Washington, DC, USA, 2 January 2008. Available online: http://ag.ca.gov/cms_attachments/press/pdfs/n1514_epapetition-1.pdf (accessed on 17 May 2010).
- 49 U.S.C. § 32902; Thomson-West: Eagan, MN, USA, 2003.
- Pub. L. 110–140 (2007); United States Printing Office: Washiongton, DC, USA, 2007.
- 549 U.S. 497 (2007), United States Printing Office: Washiongton, DC, USA, 2007.
- Environmental law was initially focused on the regulation of large emitters, but it is evolving toward the assignment of responsibility to individuals for their resource consumption decisions. Babcock, H.M. Assuming Personal Responsibility for Improving the Environment: Moving Toward a New Environmental Norm. Harvard Environ. Law 2009, 33, 117–175. [Google Scholar]
- Vandenbergh, M.P.; Steinmann, A.C. The Carbon Neutral Individual. New York U. Law Rev. 2007, 82, 1673–1745. [Google Scholar]
- California Environmental Quality Act, Public Resources Code §21000 et. seq.; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- County of San Bernardino, California, USA Homepage. http://www.co.san-bernardino.ca.us/main/demographics.asp (accessed on 17 May 2010).
- U.S. Census Bureau Population Finder Homepage. http://www.factfinder.census.gov (accessed on 7 June 2010).
- According to the San Bernardino Associated Government’s website, the various public transit authorities in the San Bernardino County region provide roughly 17.4 million rides per year. SANBAG: San Bernardino Associated Governments. Available online: http://www.sanbag.ca.gov/commuter/pub-transit.html (accessed on 17 May 2010).
- Metrolink makes only six stops in San Bernardino County in the cities of San Bernardino, Rialto, Fontana, Rancho Cucamonga, Upland, and Montclair, which are closest to Los Angeles County. No stops are made north, south, or east of the City of San Bernardino. Metrolink, San Bernardino Line. Available online: http://www.metrolinktrains.com/stations/detail.php?id=122 (accessed on 17 May 2010).
- Ritter, J. Inland Empire’s 25-year growth targeted. USA Today. 6 June 2007. Available online: http://www.usatoday.com/weather/climate/globalwarming/2007-06-05-warming-inside_N.htm (accessed on 17 May 2010).
- The People of the State of California, ex rel. Attorney General Edmund J. Brown Jr. v. County of San Bernardino. No. CIVSS 0700329, Petitioner’s Petition for Writ of Mandate, United States Supreme Court: Washington, DC, USA, 13 April 2007.
- 14 C.C.R. §15002; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Cal. Pub. Resources Code §21002.1; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Delaney, J.J. Climate Change and Sustainable Development. In Handling the Land Use Case: Land Use Law, Practice & Forms, 3rd ed.; Thomson-West: Eagan, MN, USA, 2008; Part II, Subpart B, Chapter 42. [Google Scholar] (California v. San Bernardino is important for several reasons including that it ‘confirmed that in California, a county’s general plan is a “project” or ‘undertaking’ that is required to perform an environmental impact review under CEQA…’).
- Cal. Pub. Resources Code §21002.1 and 14 C.C.R. §15064(a)(1); State of California: Eagan, MN, USA; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- 14 C.C.R. §15382; State of California: Sacramento, CA, USA, 2007.
- Courts have long remanded EIRs for the failure to discuss the air pollution impacts of land use location decisions. Bakersfield citizens for Local Control v. City of Bakersfield, 22 Cal.Rptr.3d 203 (Ct. App. 5th. Dist. 2004).
- Cal. Pub. Resources Code §21061; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Strycker’s Bay Neighborhood Council, Inc. v. Karlen. 444 U.S. 223 (1980), United States Supreme Court: Washington, DC, USA, 1980.
- Cal.Pub.Res.Code § 21081; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- re Bay-Delta Programmatic Environmental Impact Coordinated Proceedings, 3rd ed.; The California Supreme Court: San Francisco, CA, USA, 2008.
- Johnson v. Town of Plumcreek, 859 A.2d 7, 13 (Pa. Cmmw. Ct. 2004). There is a well developed law of the degree of probable injury required to have standing to challenge decisions of administrative agencies that may adversely impact the environment. Sturkie, C.; Seltzer, H.M. Developments in the D.C. Circuit’s Article III Standing Analysis: When Is an Increased Risk of Future Harm Sufficient to Cause Injury-in-Fact in Environmental Cases? Environ. Law Report. News Anal. 2007, 37, 10287–10296. [Google Scholar]
- 1-22 California Environmental Law & Land Use Practice §22.04, 11(c); M. Bender: Albany, NY, USA, 1989.
- Hendrix, M.; Wilson, C. Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents; Association of Environmental Professionals: Glendale, CA, USA, 29 June 2007. Available online: http://www.counties.org/images/public/Advocacy/ag_natres/AEP_Global_Climate_Change_June_29_Final%5B1%5D.pdf (accessed on 17 May 2010).
- Walters, D. It’s Jerry Brown vs. GOP again. The Sacramento Bee 2007. [Google Scholar]
- Natural Resources Defense Council, v. Reclamation Board of the Resources Agency of the State of California. Case No. 06 CS 01228, Superior Court of California, County of Sacramento; State of California: Sacramento, CA, USA, 2007. [Google Scholar]
- NRDC suit marks shift in legal strategy for NEPA climate reviews. Carbon Control News, 2 April 2007; Volume 1, No. 40.
- Dispute over GHG reviews rage despite recent California agreement. Carbon Control News, 15 October 2007; Volume 1, No. 40.
- Kings County Farm Bureau v. City of Hanford. 221 Cal. App. 3d 692, 720 (Cal. App. 5th Dist. 1990), State of California: Sacramento, CA, USA, 1990.
- Cal. Pub. Resources Code §21083(b)(2); West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Cal. Admin. Code §15130; West’s Annotated California Codes: Eagan, MN, USA, 2007.
- Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection. 123 Cal. App. 4th 1331, 1350 (Cal. App. 3d Dist. 2006) (citing, Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976) (Determining the area to be used to assess cumulative impact is based on the specific facts of a project. For instance, biological assessments may vary according to species. In addition, “The determination…requires the weighing of a number of relevant factors, including the extent of the interrelationship among proposed actions and practical considerations of feasibility. Resolving these issues requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies.”).
- Los Angeles Unified School Dist. v. City of Los Angeles. 58 Cal App 4th 1019 (Cal App 2d Dist. 1997), State of California: Sacramento, CA, USA, 1997.
- Citizens to Preserve the Ojai v. County of Ventura. 176 Cal. App. 3d 421 (Cal. App. 2d Dist. 1985), State of California: Sacramento, CA, USA, 1997.
- Laurel Heights Improvement Assn. v. Regents of University of California. 47 Cal. 3d 376, 404-405 (Cal. 1988), State of California: Sacramento, CA, USA, 1997.
- McMurry, R.I. Considering Climate Change in the CEQA Process. In Proceedings of the 23rd Annual ALI-ABA Land Use Institute Conference, San Francisco, CA, USA, 16–18 August 2007.
- A.G.’s Settlement with Refinery May Set Precedent for How to Handle Industrial Expansion. Calif. Environ. Insid. 2007, 21, 6–15.
- The People of the State of California, ex rel. Attorney General Edmund G. Brown Jr. v. County of San Bernardino. In Case No. CIVSS 0700329, Order Regarding Settlement; United States Supreme Court: Washington, DC, USA, 28 August 2007. Available online: http://ag.ca.gov/cms_pdfs/press/2007-08-21_San_Bernardino_settlement_agreement.pdf (accessed on 17 May 2010).
- California Reaches Landmark Global Warming Settlement on County’s Growth Plan. Mealey’s Poll. Liab. Rep. 2007, 20, 20–21.
- Smart-growth bill to cut greenhouse gases clears hurdle in California. Carbon Control News, 16 July 2007; Volume 1, No. 27. (One source is quoted in the article as saying “…I do not see a scientific basis for determining how much mitigation is needed to reduce the impact to a less-than-significant level”).
- Letter from Edmund, G. Brown, Jr. to Janet Stern Principal Planner, Pleasanton Community Development Department. 13 January 2009; p. 6. Available online: http://ag.ca.gov/globalwarming/pdf/comments_Pleasanton_GP_FEIR.pdf. (accessed on 17 May 2010).
- A subsequent letter, from the Attorney General to Ms. Stern criticized the Final Environment Impact Report’s conclusion that the greenhouse gas emissions from projected new construction “will be less significant” as patently unreasonable. 8 May 2009. Available online: http://ag.ca.gov/globalwarming/pdf/comments_Pleasanton_GP_FEIR.pdf (accessed on 17 May 2010).
- Shigley, P. Marin County General Plan Embraces Sustainability. Calif. Plan. Dev. Rep. 2008, 23(No. 1). [Google Scholar]
- Marin Countywide Plan; Marin County Community Development Agency: Marin County, CA, USA, 6 November 2007. Available online: http://www.co.marin.ca.us/depts/cd/main/fm/cwpdocs/CWP_CD2.pdf (accessed on 17 May 2010).
- Bank of America; UC Berkeley School of Law Center for Law, Energy & the Environment; UCLA School of Law Environmental Law Center & Emmett Center of Climate Change and the Environment; Office of the California Attorney General. Removing the Roadblocks: How to Make Sustainable Development Happen Now; Joint Policy Paper; UC Berkeley School of Law Center for Law, Energy & the Environment: Berkeley, CA, USA, August 2009. [Google Scholar]
- For an elegant articulation of this conclusion in the context of geographical theories of the interaction of space, scale and regulation see Osofsky, H.M. Scaling “Local”: The Implications of Greenhouse Gas Regulations in San Bernardino County. Mich. J. Int. Law 2009, 30, 689–705. [Google Scholar]
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Medina, R.; Tarlock, A.D. Addressing Climate Change at the State and Local Level: Using Land Use Controls to Reduce Automobile Emissions. Sustainability 2010, 2, 1742-1764. https://doi.org/10.3390/su2061742
Medina R, Tarlock AD. Addressing Climate Change at the State and Local Level: Using Land Use Controls to Reduce Automobile Emissions. Sustainability. 2010; 2(6):1742-1764. https://doi.org/10.3390/su2061742
Chicago/Turabian StyleMedina, Rachel, and A. Dan Tarlock. 2010. "Addressing Climate Change at the State and Local Level: Using Land Use Controls to Reduce Automobile Emissions" Sustainability 2, no. 6: 1742-1764. https://doi.org/10.3390/su2061742
APA StyleMedina, R., & Tarlock, A. D. (2010). Addressing Climate Change at the State and Local Level: Using Land Use Controls to Reduce Automobile Emissions. Sustainability, 2(6), 1742-1764. https://doi.org/10.3390/su2061742