(This is the second of four parts about resilient cities and adaptive law by guest columnist Tony Arnold. Please click here to read the first post.)
In a recent Environmental Law Reporter article, “Adaptive Law and Resilience,” resilience scientist Lance Gunderson and I have identified aspects of the U.S. legal system that are maladaptive to interconnected nonlinear change in social systems and ecosystems and offered an alternative view of an adaptive legal system. This blog addresses three aspects of law that are relevant to cities and their resilience: local governance, private property rights, and adaptation.
The polycentric structure of an adaptive legal system offers tremendous opportunities for cities to be leaders in social-ecological resilience. Many commentators decry the lack of centralized control over land use, water management, and local environments in the U.S. They argue that this localist element of our federal system produces a “race to the bottom,” in which local and state governments have economic and fiscal incentives to adopt weak protections of the environment or no protections at all. They also argue that strong national (or even global) governance is needed to provide the resources, expertise, and coordination for adequate environmental protection and sustainable land and water use.
From a resilience perspective, though, concentrating governance authority and management of resources into a single large entity comes with substantial risk of catastrophe and collapse if of a single centralized approach fails or if the sole decision making authority is “captured” by special interests. Abundant studies on organizational decision making, systemic resilience, and political dynamics tell us that both outcomes are possible, perhaps even probable.
In contrast, governance authority and resource management by multiple entities at multiple scales minimizes the risks if any single action or approach fails, as well as making it less like that a single interest will “capture” decision makers in all these entities. Moreover, a robust role for states and localities – particularly cities – in shaping land use, water management, and local environments allows for policy experimentation. U.S. Supreme Court Justice Louis D. Brandeis famously wrote: “”It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” (New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) Indeed, all over the U.S., we see examples of cities adopting biophilic laws aimed at resilience of ecological systems and human communities, including tree canopy ordinances, wetlands or watershed overlay zoning, riparian buffer zone protections, and local climate action plans, among others.
The challenge of decentralized governance, though, is to develop cross-scale integration or linkages that address the complexity and interconnectedness of multiple ecosystems and social systems and communities that transcend jurisdictional boundaries. For example, urban agriculture, rural agriculture, regional food security, and regional land-development patterns are interconnected. A policy focused solely on authorizing agricultural activities on urban lands does not do enough to connect cities and farms or to conserve the interconnected systems of soils, waters, biodiversity, farmland, food production, and food distribution and consumption. Likewise, the restoration of urban rivers will likely lack long-term resilience if it isn’t integrated with upstream and downstream strategies and actions.
Moreover, federal legislation and regulation operates as a disturbance – through direct control, the threat of control, and incentives to act – that stimulates local action. Nonetheless, there are threshold points at which too much centralized control results in political and/or legal pushback against centralization. Indeed, the persistence of local control over land use and other environmental and resource decisions is even more a matter of American culture than legal principle, a point I explored in an article “The Structure of the Land Use Regulatory System in the United States.” Cultural forces strongly influence human interactions with nature.
Tony Arnold is the Boehl Chair in Property and Land Use, Professor of Law, Affiliated Professor of Urban Planning, and Chair of the Center for Land Use and Environmental Responsibility, University of Louisville. He has recently been named the Associate Dean for Research and Faculty Development at the University of Louisville’s Brandeis School of Law. He has served as a planning commissioner, member of a task force addressing environmental justice in urban neighborhoods, a land conservation trust board member, and co-chair of the land use, transportation, and urban forestry committee of the Louisville Metropolitan Climate Change Task Force. Here he is pictured with two former law and urban planning students, looking at urban tree canopy planning documents, along the Louisville Loop Trail, a 100-mile trail system that rings the entire city, linking existing and new parks, civic facilities, diverse neighborhoods, and waterways. He can be reached at email@example.com.