During the past twenty years, sustainable development law has come of age, with an increasing number of law firms, public officials, and scholars viewing environmental, land use, real estate, energy, and other related fields of law as an integrated area of policy, practice, and scholarship: one that is capable of achieving impressive gains in energy conservation and emissions reduction. Enough has been learned to promulgate a set of standards to guide local governments in using their land use authority to create sustainable private sector development. Since two-thirds of the buildings on the ground by 2050 will be built between now and then, such a system could not be more urgently needed. In this blog post, I highlight the need for such an initiative and offer eight key objectives that illustrate how it could be structured to achieve local sustainable development and help integrate the related efforts of state and federal agencies.
This blog post is based on two of my articles, which contain in-depth discussions of these topics: Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, as well as Changes Spark Interest in Sustainable Urban Places: But How Do We Identify and Support Them?
Sustainable development law focuses on shaping land and economic development to have a lighter impact on the environment, including, but not limited to, climate change mitigation and adaptation. Sustainable development uses less material, avoids consuming wetlands or eroding watersheds, consumes less energy, emits less CO2 (while sequestering more), lessens stormwater runoff, reduces ground and surface water pollution, and creates healthier places for living, working, and recreating. This body of law is created mainly by state and local governments, which have the principal legal authority to regulate building construction, land use, and the conservation of natural resources at the local level where development occurs. It is guided, supported, and, sometimes, preempted by federal laws, regulations, and spending programs.
As Congress initiated the top-down environmental law movement in the 1970s, a related but disconnected initiative was occurring at the state and local level. State legislatures during this era planted the seeds of sustainable development law, adopting statutes that control future land development in the interest of resource preservation. The growth management movement began in Oregon in the early 1970s with the creation of state-legislated urban growth boundaries. This gave rise to the notion that human settlements should be shaped so that they do not consume disproportionate amounts of land and resources to accommodate homes, offices, and other buildings needed by projected population growth.
Gradually, this movement merged into the smart growth campaign whose purpose is to shape human settlements to avoid the wasteful consequences of sprawl, which eats up land at a rate greatly in excess of population growth. Over the last three decades, state and local governments have adopted countless land use laws that exhibit, to greater or lesser degrees, their commitment to shaping settlements to preserve the environment and promote sustainable living. They are working to revitalize urban centers, reconfigure older suburbs, create green buildings, and support development patterns that expand the use of transit systems. In the last few years, there is evidence that these same governments are deliberately using smart growth tools to mitigate and adapt to climate change, including adaptation to sea level rise and tropical storms.
The connections among federal, state, and local sustainable development legal regimes are numerous, if not well understood or coordinated. Federal transportation initiatives influence where local, commercial, industrial, and residential development will be served by roads and transit. Federal housing and community development initiatives help local governments revitalize blighted areas and provide affordable housing. Federal coastal zone management initiatives enable local, state, and interstate coastal planning that influences land development and conservation laws and regulations adopted by state and local governments. Both federal and state brownfields legislation influence local plans to restore unused industrial sites to productivity.
Local efforts to protect wetlands, wildlife habitat, and surface and ground water align with and can further federal initiatives to conserve and steward these resources. Local law can protect natural resources and open space at the edge of federal parks and preserves. Federal efforts to promote energy conservation through the use of wind turbines, solar panels, combined heat and power facilities, and district energy systems can be furthered or frustrated by local land use regulations that permit and prohibit facility location.
The connection between sustainable land development and climate change mitigation and adaptation is particularly close. How buildings are constructed, how they are arranged on the land, and how human settlement patterns are shaped are critical to our success in curbing the causes of climate change. About 85 percent of GHG emissions in the U.S. are CO2, much of which is caused by the buildings and land use patterns that local land use plans and regulations create, regulate, and approve. Vehicle trips and miles travelled have increased dramatically in the past three decades as development patterns have spread out, consuming land at much greater rates than the rate of population growth. Today, buildings emit 35 percent of CO2 in the U.S. Personal vehicles are responsible for 17 percent of total emissions. Current undeveloped landscapes sequester 18 percent of CO2 emissions.
One way communities can respond to this need for sustainable development, caused by demographic and climactic shifts, is by adopting higher density, mixed-use zoning, implementing transit-oriented development plans and ordinances, and using many other techniques to accommodate these changing market forces in a way that will reduce vehicle miles travelled and per capita GHG emissions. Whether or not they adopt these techniques will determine the degree of sustainability of future private development. By creating a certification system that is capable of quantifying and measuring sustainable land use and development initiatives undertaken by local governments, communities will be better able to understand how to gauge their efforts at adapting to future trends, and ultimately how to become more efficient, sustainable and vibrant places to live. In addition, such a system enables state and federal agencies to effectively identify communities that deserve funding, support and assistance for projects and policies geared toward implementing sustainable development and climate change management at the local level. Such a program is necessary to: 1) allow state and federal agencies to effectively identify and reward local governments for actions taken in conformance with state and federal programs; and 2) guide local governments in focusing their energies on sustainable projects and initiatives that are both relevant to their communities and that will give them the reassurance of funding and support.
The system described here begins with a listing of just eight key objectives, followed by a few illustrative measures that localities can adopt to achieve each objective, with a few indicators that can be used to measure progress. This initial attempt to describe an ideal/broad certification system provides a framework for organizing and including more initiatives over time.
1. Adopting Sustainability Policies and Plans: To pave the way for action-oriented measures, communities should receive credits for identifying sustainability objectives they would like to achieve, establishing task forces, engaging the community, completing studies and reports, adopting formal policies and comprehensive plan components detailing the measures they will adopt.
2. Reducing Vehicle Miles Travelled: Credits should be awarded for zoning changes that provide for higher density, mixed uses to create walkable—as opposed to car dependent— neighborhoods and communities, aimed at mitigating climate change by reducing carbon emissions from tailpipes, reducing commuting costs per household, and lowering the cost of development through reduced parking requirements and the cost-efficiency of denser developments.
3. Conserving Energy in Buildings and Promoting Renewables: Regulations that reduce dwelling unit size and the energy efficiency of buildings determine how much of the considerable energy used in buildings, and emissions caused in heating and cooling them, can be credited. Code and zoning provisions can be adopted to increase thermal efficiency in mixed-use buildings, tighten building construction, and achieve proper building orientation.
4. Remediating Distressed Properties: In many urban areas where emerging households desire to reside, there are neighborhoods that contain a high percentage of vacant, distressed, foreclosed, tax-delinquent, or tax foreclosed properties. These areas must be improved to facilitate development in nearby business districts, transit station areas, and other priority growth areas. They also provide an opportunity to retain the existing residents of such areas in improved, but still affordable, housing. A host of initiatives have emerged in the past decade to remediate distressed properties; these too can be credited.
5. Protecting Agricultural Lands and Farming in Rural Areas: Increased population requires more food production, which can be sustainable if located within reasonable distances from population centers. Communities in these locations can adopt agricultural zoning provisions that allow farmers the flexibility they need to conduct profitable food production operations and install related processing and vending facilities.
6. Waterfront Redevelopment: Many communities have waterfront areas that are seen as key to their economic development. Now, in light of sea level rise, storm surges, and increased flooding in many areas, these areas are vulnerable and need new measures to protect them. The techniques being used to create resilient coastal development are critical standards needed in the certification system.
7. Enhancing Sequestration and Green Infrastructure: Approximately 15 percent of the nation’s carbon dioxide emissions are sequestered by the natural environment. These resources need to be protected and enhanced. For new populations to find denser developed areas livable, they must be sheltered and shaped by green infrastructure that cools, shades, and enlivens their developed spaces. Hosts of techniques now exist to achieve these two objectives.
8. Resiliency and Adaptation: Sustainable development included adapting to climate change, which includes higher temperatures, sea level rise, storm events, flooding, and the need to consume less energy. All areas, including developed waterfronts, must be rethought to become resilient to these changes.
The FEMA National Flood Insurance Program’s (NFIP) Community Rating System (CRS) provides an option for communities willing to comply with flood control standards beyond the minimum requirements of the NFIP. In return, property owners receive greater discounts on their flood insurance premiums. The CRS is an 18-component rating system that gives communities a number of credits based on how well they meet various requirements stipulated under the four categories of flood prevention: public information; mapping and regulations; flood damage reduction; and flood preparedness. Many of these credits not only factor toward increased flood prevention, but also act to promote sustainable private sector development. Section 420 (Open Space Preservation) requires a community to guarantee that floodplains in their natural state be kept free from development. Section 430 (Higher Regulatory Standards) offers credits for zoning the floodplain for minimum lot sizes of one acre or larger, as well as heightened new construction standards including freeboard and engineered foundations.
The CRS, in providing goals, incentives, and technical aid to localities, illustrates how a certification system for one federal agency can integrate its efforts with those of local governments. This approach should be expanded to include sustainability standards regarding numerous key objectives such as those listed above to fully leverage state and federal resources to incentivize America’s local governments to use their considerable legal authority to control development to make the kind of progress that the nation’s critical environmental and economic issues require. This is consistent with existing federal policy. The Sustainable Communities Initiative aspires to “[a]lign federal policies and funding to remove barriers to collaboration, leverage funding, and increase the accountability and effectiveness of all levels of government to plan for future growth, including making smart energy choices such as locally generated renewable energy.”
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