Urban sprawl, federalism, and the problem of institutional complexity

Fordham Law Review

Volumn 68, Issue 1, 1999, Pages 57-135

  Buzbee, William W ^a  

^a NONE

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EID: 0033456051     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (482)

1. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
2. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
3. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
4. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
5. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
6. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
7. See, e.g., Dana Milbank, Political Machine, New Republic, Jan. 25, 1999, at 18 (discussing why political leaders of major U.S. cities support Vice President Gore's policies on urban sprawl); Alison Mitchell, 2 Parties Seek to Exploit Nonstop Suburban Boom, N.Y. Times, May 4, 1999, at A1 (describing political initiatives designed to attract the increasingly important suburban vote); Randal O'Toole, Dense Thinkers, Reason, Jan. 1999, at 44 (declaring "New Urbanism" the latest trend in urban planning); Jennifer Preston, Battling Sprawl, States Buy Land for Open Space, N.Y. Times, June 9, 1998, at A1 (describing several states' plans to preserve open space); John Tierney, Room Aplenty for Sprawl in the Suburbs, N.Y. Times, Feb. 22, 1999, at B1 (comparing urban sprawl to earlier "open space" crusades); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Job Growth, N.Y. Times, June 9, 1999, at A1 (discussing Intel's agreement with Washington County, Oregon to limit the growth of manufacturing jobs); General Accounting Office, GAO/RCED-99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear (Apr. 1999) [hereinafter GAO Sprawl Report] (discussing federal policies' and programs' influence on sprawling patterns of development and concluding that extent of influence is uncertain).
8. Sprawl has been a subject of academic and journalistic focus for decades. See, e.g., Ian L. McHarg, Design With Nature (1969) (noting the development of ecological planning); The Editors of Fortune, The Exploding Metropolis (1958) [hereinafter The Exploding Metropolis] (stating that with the growth of urbanization there is conflict between cities and surrounding metropolitan areas). See generally Peter Gordon & Henry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am. Plan. Ass'n 95 (1997) (questioning planners' factual assumptions and frequent preference for compact cities over sprawling urban forms); Reid Ewing, Is Los Angeles- Style Sprawl Desirable?, 63 J. Am. Plan. Ass'n 107 (1997) (disputing assertions of Gordon and Richardson and arguing that sprawl is undesirable). In the 1970s, Senator Henry Jackson unsuccessfully proposed several bills to increase federal incentives to state and local governments to engage in more rational land use planning and thereby reduce environmental harms and waste of land. See generally Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7 (1996) (discussing the goals and history of federal land use bills proposed by Senator Jackson and others between 1970 and 1974); see also Land Resource Planning Assistance Act and the Energy Facilities Planning and Development Act: Hearings Before the Senate Subcommittee on the Environment and Land Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong. (1975) (compiling hearing statements, submitted material, and Senate Bills 619 and 984 from hearings held on Apr. 23, 24, 29 and May 2, 1975).
9. Sprawl has been a subject of academic and journalistic focus for decades. See, e.g., Ian L. McHarg, Design With Nature (1969) (noting the development of ecological planning); The Editors of Fortune, The Exploding Metropolis (1958) [hereinafter The Exploding Metropolis] (stating that with the growth of urbanization there is conflict between cities and surrounding metropolitan areas). See generally Peter Gordon & Henry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am. Plan. Ass'n 95 (1997) (questioning planners' factual assumptions and frequent preference for compact cities over sprawling urban forms); Reid Ewing, Is Los Angeles- Style Sprawl Desirable?, 63 J. Am. Plan. Ass'n 107 (1997) (disputing assertions of Gordon and Richardson and arguing that sprawl is undesirable). In the 1970s, Senator Henry Jackson unsuccessfully proposed several bills to increase federal incentives to state and local governments to engage in more rational land use planning and thereby reduce environmental harms and waste of land. See generally Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7 (1996) (discussing the goals and history of federal land use bills proposed by Senator Jackson and others between 1970 and 1974); see also Land Resource Planning Assistance Act and the Energy Facilities Planning and Development Act: Hearings Before the Senate Subcommittee on the Environment and Land Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong. (1975) (compiling hearing statements, submitted material, and Senate Bills 619 and 984 from hearings held on Apr. 23, 24, 29 and May 2, 1975).
10. Sprawl has been a subject of academic and journalistic focus for decades. See, e.g., Ian L. McHarg, Design With Nature (1969) (noting the development of ecological planning); The Editors of Fortune, The Exploding Metropolis (1958) [hereinafter The Exploding Metropolis] (stating that with the growth of urbanization there is conflict between cities and surrounding metropolitan areas). See generally Peter Gordon & Henry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am. Plan. Ass'n 95 (1997) (questioning planners' factual assumptions and frequent preference for compact cities over sprawling urban forms); Reid Ewing, Is Los Angeles- Style Sprawl Desirable?, 63 J. Am. Plan. Ass'n 107 (1997) (disputing assertions of Gordon and Richardson and arguing that sprawl is undesirable). In the 1970s, Senator Henry Jackson unsuccessfully proposed several bills to increase federal incentives to state and local governments to engage in more rational land use planning and thereby reduce environmental harms and waste of land. See generally Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7 (1996) (discussing the goals and history of federal land use bills proposed by Senator Jackson and others between 1970 and 1974); see also Land Resource Planning Assistance Act and the Energy Facilities Planning and Development Act: Hearings Before the Senate Subcommittee on the Environment and Land Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong. (1975) (compiling hearing statements, submitted material, and Senate Bills 619 and 984 from hearings held on Apr. 23, 24, 29 and May 2, 1975).
11. Sprawl has been a subject of academic and journalistic focus for decades. See, e.g., Ian L. McHarg, Design With Nature (1969) (noting the development of ecological planning); The Editors of Fortune, The Exploding Metropolis (1958) [hereinafter The Exploding Metropolis] (stating that with the growth of urbanization there is conflict between cities and surrounding metropolitan areas). See generally Peter Gordon & Henry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am. Plan. Ass'n 95 (1997) (questioning planners' factual assumptions and frequent preference for compact cities over sprawling urban forms); Reid Ewing, Is Los Angeles-Style Sprawl Desirable?, 63 J. Am. Plan. Ass'n 107 (1997) (disputing assertions of Gordon and Richardson and arguing that sprawl is undesirable). In the 1970s, Senator Henry Jackson unsuccessfully proposed several bills to increase federal incentives to state and local governments to engage in more rational land use planning and thereby reduce environmental harms and waste of land. See generally Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7 (1996) (discussing the goals and history of federal land use bills proposed by Senator Jackson and others between 1970 and 1974); see also Land Resource Planning Assistance Act and the Energy Facilities Planning and Development Act: Hearings Before the Senate Subcommittee on the Environment and Land Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong. (1975) (compiling hearing statements, submitted material, and Senate Bills 619 and 984 from hearings held on Apr. 23, 24, 29 and May 2, 1975).
12. Sprawl has been a subject of academic and journalistic focus for decades. See, e.g., Ian L. McHarg, Design With Nature (1969) (noting the development of ecological planning); The Editors of Fortune, The Exploding Metropolis (1958) [hereinafter The Exploding Metropolis] (stating that with the growth of urbanization there is conflict between cities and surrounding metropolitan areas). See generally Peter Gordon & Henry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am. Plan. Ass'n 95 (1997) (questioning planners' factual assumptions and frequent preference for compact cities over sprawling urban forms); Reid Ewing, Is Los Angeles- Style Sprawl Desirable?, 63 J. Am. Plan. Ass'n 107 (1997) (disputing assertions of Gordon and Richardson and arguing that sprawl is undesirable). In the 1970s, Senator Henry Jackson unsuccessfully proposed several bills to increase federal incentives to state and local governments to engage in more rational land use planning and thereby reduce environmental harms and waste of land. See generally Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7 (1996) (discussing the goals and history of federal land use bills proposed by Senator Jackson and others between 1970 and 1974); see also Land Resource Planning Assistance Act and the Energy Facilities Planning and Development Act: Hearings Before the Senate Subcommittee on the Environment and Land Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong. (1975) (compiling hearing statements, submitted material, and Senate Bills 619 and 984 from hearings held on Apr. 23, 24, 29 and May 2, 1975).
13. Sprawl has been a subject of academic and journalistic focus for decades. See, e.g., Ian L. McHarg, Design With Nature (1969) (noting the development of ecological planning); The Editors of Fortune, The Exploding Metropolis (1958) [hereinafter The Exploding Metropolis] (stating that with the growth of urbanization there is conflict between cities and surrounding metropolitan areas). See generally Peter Gordon & Henry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am. Plan. Ass'n 95 (1997) (questioning planners' factual assumptions and frequent preference for compact cities over sprawling urban forms); Reid Ewing, Is Los Angeles- Style Sprawl Desirable?, 63 J. Am. Plan. Ass'n 107 (1997) (disputing assertions of Gordon and Richardson and arguing that sprawl is undesirable). In the 1970s, Senator Henry Jackson unsuccessfully proposed several bills to increase federal incentives to state and local governments to engage in more rational land use planning and thereby reduce environmental harms and waste of land. See generally Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7 (1996) (discussing the goals and history of federal land use bills proposed by Senator Jackson and others between 1970 and 1974); see also Land Resource Planning Assistance Act and the Energy Facilities Planning and Development Act: Hearings Before the Senate Subcommittee on the Environment and Land Resources of the Senate Committee on Interior and Insular Affairs, 94th Cong. (1975) (compiling hearing statements, submitted material, and Senate Bills 619 and 984 from hearings held on Apr. 23, 24, 29 and May 2, 1975).
14. For an excellent discussion of growth management techniques associated with urban sprawl, coupled with a survey of related urban planning literature, see Arthur C. Nelson et al., Growth Management Principles and Practices (1995).
15. For a discussion of the nature of brownfields and programs to encourage their reuse, see William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 1, 1-6 (1997). An exodus of businesses and residents from urban to suburban areas may contribute to urban blight and increased municipal government burdens, see infra Part I.A.I., but also should lead to reduced demand for business and residential space and thereby lead to reduced central city rents or land prices as landlords seek to earn a return on their real estate in a buyers' (or renters') market. See Paul Peterson, City Limits 22-24 (1981).
16. For a discussion of the nature of brownfields and programs to encourage their reuse, see William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 1, 1-6 (1997). An exodus of businesses and residents from urban to suburban areas may contribute to urban blight and increased municipal government burdens, see infra Part I.A.I., but also should lead to reduced demand for business and residential space and thereby lead to reduced central city rents or land prices as landlords seek to earn a return on their real estate in a buyers' (or renters') market. See Paul Peterson, City Limits 22-24 (1981).
17. For a few recent criticisms of proposed sprawl reforms and the "new urbanism" response to sprawl, see Gregg Easterbrook, Suburban Myth, New Republic, Mar. 15, 1999, at 18; Gordon & Richardson, supra note 2; Steven Hayward, Suburban Legends, Nat'l Rev., Mar. 22, 1999, at 35; Randall G. Holcombe, In Defense of Urban Sprawl, PERC Reps., Feb. 1999, at 3 (attributing most types of sprawling development to market forces representing rational consumer choice and, where less salutary "single dimension" development occurs, blaming government intervention in the form of zoning laws); O'Toole, supra note 1; Tierney, supra note 1.
18. For a few recent criticisms of proposed sprawl reforms and the "new urbanism" response to sprawl, see Gregg Easterbrook, Suburban Myth, New Republic, Mar. 15, 1999, at 18; Gordon & Richardson, supra note 2; Steven Hayward, Suburban Legends, Nat'l Rev., Mar. 22, 1999, at 35; Randall G. Holcombe, In Defense of Urban Sprawl, PERC Reps., Feb. 1999, at 3 (attributing most types of sprawling development to market forces representing rational consumer choice and, where less salutary "single dimension" development occurs, blaming government intervention in the form of zoning laws); O'Toole, supra note 1; Tierney, supra note 1.
19. For a few recent criticisms of proposed sprawl reforms and the "new urbanism" response to sprawl, see Gregg Easterbrook, Suburban Myth, New Republic, Mar. 15, 1999, at 18; Gordon & Richardson, supra note 2; Steven Hayward, Suburban Legends, Nat'l Rev., Mar. 22, 1999, at 35; Randall G. Holcombe, In Defense of Urban Sprawl, PERC Reps., Feb. 1999, at 3 (attributing most types of sprawling development to market forces representing rational consumer choice and, where less salutary "single dimension" development occurs, blaming government intervention in the form of zoning laws); O'Toole, supra note 1; Tierney, supra note 1.
20. See Bill McKibben, Hope, Human and Wild 12-36 (1995). McKibben also, however, notes the devastating effects of sprawling development and clear-cut timber techniques. See id. at 36-52.
21. For an excellent discussion of the increase in sprawling forms of urban growth, including a discussion of older metropolitan areas such as New York City, see Robert Fishman, America's New City: Megalopolis Unbound, Wilson Q., Winter 1990, at 24, 24.
22. Vicki Been, Comment on Professor Jerry Frug's The Geography of Community, 48 Stan. L. Rev. 1109, 1111 (1996) (commenting on Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047 (1996)). Professor Been questions if Frug's otherwise rich and provocative work adequately acknowledges the contribution of fiscal and economic motivations to the destruction of vibrant urban centers and concurrent sprawling urban forms. See id. at 1109. Despite these concerns, Been views Frug's work as a key contribution to the literature addressing reasons for current urban form and why corrective actions should be taken.
23. Vicki Been, Comment on Professor Jerry Frug's The Geography of Community, 48 Stan. L. Rev. 1109, 1111 (1996) (commenting on Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047 (1996)). Professor Been questions if Frug's otherwise rich and provocative work adequately acknowledges the contribution of fiscal and economic motivations to the destruction of vibrant urban centers and concurrent sprawling urban forms. See id. at 1109. Despite these concerns, Been views Frug's work as a key contribution to the literature addressing reasons for current urban form and why corrective actions should be taken.
24. The legal literature that obliquely touches on sprawl's political and economic dynamics and prospects for effective legal reform is found in an array of articles more generally looking at problems of urban forms of governance and the usual lack of regional units of government that can address regional needs and still provide for the benefits associated with local government politics. See generally Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115 (1996) [hereinafter Briffault, Local Government] (discussing the conflict between local political autonomy and effective metropolitan area governance); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1843 (1994) (asserting that political geography might promote racial segregation and discussing implications of the lack of regional government units); Jerry Frug, Decentering Decentralization, 60 U. Chi. L. Rev. 253 (1993) (questioning the benefits of decentralized metropolitan governance and calling for the creation of metropolitan regional legislatures); Frug, supra note 8, at 1081-89 (arguing that current U.S. urban policy has created social division and alienated certain groups). For one of the few articles that discusses sprawl's effects and a possible federal role in addressing the problems associated with sprawl and other land use harms,
25. The legal literature that obliquely touches on sprawl's political and economic dynamics and prospects for effective legal reform is found in an array of articles more generally looking at problems of urban forms of governance and the usual lack of regional units of government that can address regional needs and still provide for the benefits associated with local government politics. See generally Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115 (1996) [hereinafter Briffault, Local Government] (discussing the conflict between local political autonomy and effective metropolitan area governance); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1843 (1994) (asserting that political geography might promote racial segregation and discussing implications of the lack of regional government units); Jerry Frug, Decentering Decentralization, 60 U. Chi. L. Rev. 253 (1993) (questioning the benefits of decentralized metropolitan governance and calling for the creation of metropolitan regional legislatures); Frug, supra note 8, at 1081-89 (arguing that current U.S. urban policy has created social division and alienated certain groups). For one of the few articles that discusses sprawl's effects and a possible federal role in addressing the problems associated with sprawl and other land use harms,
26. The legal literature that obliquely touches on sprawl's political and economic dynamics and prospects for effective legal reform is found in an array of articles more generally looking at problems of urban forms of governance and the usual lack of regional units of government that can address regional needs and still provide for the benefits associated with local government politics. See generally Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115 (1996) [hereinafter Briffault, Local Government] (discussing the conflict between local political autonomy and effective metropolitan area governance); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1843 (1994) (asserting that political geography might promote racial segregation and discussing implications of the lack of regional government units); Jerry Frug, Decentering Decentralization, 60 U. Chi. L. Rev. 253 (1993) (questioning the benefits of decentralized metropolitan governance and calling for the creation of metropolitan regional legislatures); Frug, supra note 8, at 1081-89 (arguing that current U.S. urban policy has created social division and alienated certain groups). For one of the few articles that discusses sprawl's effects and a possible federal role in addressing the problems associated with sprawl and other land use harms,
27. see Shelby D. Green, The Search for a National Land Use Policy: For the Cities' Sake, 26 Fordham Urb. L.J. 69 (1998).
28. See Buzbee, supra note 4, at 27-66 (developing hypothesis that state-federal dynamics and institutional roles and incentives have changed over time and that appropriate state or federal roles therefore will continue to change).
29. The conclusions of this Article share features of recent analyses of global environmental regulation and efforts to protract biodiversity. See generally Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale L.J. 677 (1999) (discussing regulatory tools' efficacy in addressing global environmental ills and concluding that where there are numerous independent jurisdictions, "participation efficiency" calls for strategies where entities causing harm can be paid to change their actions and where pollution rights can be traded); Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1 (1997) (analyzing limited and scattered laws protecting biodiversity); J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. Col. L. Rev. 555 (1995) (discussing the limitations of the "Coercion Model" and the need to look into a federal role in shaping biodiversity conservation); A. Dan Tarlock, Local Government Protection of Biodiversity: What is its Niche?, 60 U. Chi. L. Rev. 555 (1993) (analyzing the role local governments play in biodiversity protection).
30. The conclusions of this Article share features of recent analyses of global environmental regulation and efforts to protract biodiversity. See generally Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale L.J. 677 (1999) (discussing regulatory tools' efficacy in addressing global environmental ills and concluding that where there are numerous independent jurisdictions, "participation efficiency" calls for strategies where entities causing harm can be paid to change their actions and where pollution rights can be traded); Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1 (1997) (analyzing limited and scattered laws protecting biodiversity); J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. Col. L. Rev. 555 (1995) (discussing the limitations of the "Coercion Model" and the need to look into a federal role in shaping biodiversity conservation); A. Dan Tarlock, Local Government Protection of Biodiversity: What is its Niche?, 60 U. Chi. L. Rev. 555 (1993) (analyzing the role local governments play in biodiversity protection).
31. The conclusions of this Article share features of recent analyses of global environmental regulation and efforts to protract biodiversity. See generally Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale L.J. 677 (1999) (discussing regulatory tools' efficacy in addressing global environmental ills and concluding that where there are numerous independent jurisdictions, "participation efficiency" calls for strategies where entities causing harm can be paid to change their actions and where pollution rights can be traded); Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1 (1997) (analyzing limited and scattered laws protecting biodiversity); J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. Col. L. Rev. 555 (1995) (discussing the limitations of the "Coercion Model" and the need to look into a federal role in shaping biodiversity conservation); A. Dan Tarlock, Local Government Protection of Biodiversity: What is its Niche?, 60 U. Chi. L. Rev. 555 (1993) (analyzing the role local governments play in biodiversity protection).
32. The conclusions of this Article share features of recent analyses of global environmental regulation and efforts to protract biodiversity. See generally Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale L.J. 677 (1999) (discussing regulatory tools' efficacy in addressing global environmental ills and concluding that where there are numerous independent jurisdictions, "participation efficiency" calls for strategies where entities causing harm can be paid to change their actions and where pollution rights can be traded); Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1 (1997) (analyzing limited and scattered laws protecting biodiversity); J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. Col. L. Rev. 555 (1995) (discussing the limitations of the "Coercion Model" and the need to look into a federal role in shaping biodiversity conservation); A. Dan Tarlock, Local Government Protection of Biodiversity: What is its Niche?, 60 U. Chi. L. Rev. 555 (1993) (analyzing the role local governments play in biodiversity protection).
33. See GAO Sprawl Report, supra note 1, at 1, 4; Nelson et al., supra note 3, at 2-3; see also Robert G. Healy & John S. Rosenberg, Land Use and the States 17 (2d ed. 1979) (defining sprawl as having three basic forms - subdivision homes on large lots, development along transportation lines, and "leapfrog" development). As discussed infra notes 29-30, 83-84 & 129-32 and accompanying text, increasing congestion will often lead to some market-caused revitalization of central urban areas.
34. See GAO Sprawl Report, supra note 1, at 1, 4; Nelson et al., supra note 3, at 2- 3; see also Robert G. Healy & John S. Rosenberg, Land Use and the States 17 (2d ed. 1979) (defining sprawl as having three basic forms - subdivision homes on large lots, development along transportation lines, and "leapfrog" development). As discussed infra notes 29-30, 83-84 & 129-32 and accompanying text, increasing congestion will often lead to some market-caused revitalization of central urban areas.
35. Urban "infill" initiatives are efforts to encourage development of underutilized real estate in central city areas, usually in lieu of or in preference to development outside the central metropolitan area. Infill strategies are often combined with urban "containment" strategies utilizing growth boundaries or constraints. See Nelson et al., supra note 3, at 85-87.
36. For a survey of the costs and benefits of sprawl, see Robert W. Burchell, Economic and Fiscal Costs (and Benefits) of Sprawl 29 Urb. Law. 159 (1997); see also Been, supra note 8, at 1109-11 (discussing why sprawling forms are often chosen); Frug, supra note 8, at 1097-98 (discussing reasons why "those who can afford to [move out] are moving . . . to areas more and more remote from the central city," but also identifying many ways local, state, and federal legal frameworks encourage, if not underwrite, this move).
37. See Healy & Rosenberg, supra note 12, at 18 ("[S]prawl reflects the divergence of interests between individuals, who wish to maximize private space and accessibility, and society as a whole, which seeks larger, contiguous blocks of open space.").
38. For a thorough discussion of the private motives and government policies contributing to "the suburbanization of the United States," including an emphasis on Americans' deep-rooted interest in suburban private home ownership, see Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States (1985). See generally Green, supra note 9 (discussing harms associated with sprawl and policies facilitating sprawl).
39. See Jackson, supra note 16, at 163-71; Michael H. Schill, Privatizing Federal Low Income Housing Assistance: The Case of Public Housing, 75 Cornell L. Rev. 878, 894-97 (1990) (discussing federal policies subsidizing movement of middle and moderate-income households from the city to suburbs).
40. See Land Use in America 45-48 (Henry L. Diamond & Patrick F. Noonan eds., 1996); The Exploding Metropolis, supra note 2, at 144; Lawrence D. Frank, Land Use Impacts on Household Travel Choice and Vehicle Emissions in the Atlanta Region 21-22, 97-98 (City Planning Program, College of Architecture, Georgia Institute of Technology Jan. 1999).
41. See Land Use in America 45-48 (Henry L. Diamond & Patrick F. Noonan eds., 1996); The Exploding Metropolis, supra note 2, at 144; Lawrence D. Frank, Land Use Impacts on Household Travel Choice and Vehicle Emissions in the Atlanta Region 21-22, 97-98 (City Planning Program, College of Architecture, Georgia Institute of Technology Jan. 1999).
42. See Land Use in America 45-48 (Henry L. Diamond & Patrick F. Noonan eds., 1996); The Exploding Metropolis, supra note 2, at 144; Lawrence D. Frank, Land Use Impacts on Household Travel Choice and Vehicle Emissions in the Atlanta Region 21-22, 97-98 (City Planning Program, College of Architecture, Georgia Institute of Technology Jan. 1999).
43. For a discussion of how the mortgage deduction acts as a subsidy, but may also lead to reduced rents in central cities with increased vacancies due to a shift in previous renters to suburban residential and business sites, see Peterson, supra note 4, at 21-22.
44. See David Bollier, How Smart Growth Can Stop Sprawl 12-14 (1998) (quoting and citing Kunstler's more extensive treatment in James Howard Kunstler, Home from Nowhere: Remaking Our Everyday World for the Twenty-First Century 197- 206 (1996)); Frug, supra note 8, at 1068 (discussing federal mortgage policies and other federal programs and appropriations for work in areas like defense contracting that undercut central city vitality). For an optimistic appraisal of reasons why recent amendments to federal tax law may reduce incentives for sprawling urban forms, see Environmental Law Institute, Linking Tax Law and Sustainable Urban Development: The Taxpayer Relief Act of 1997 (1998).
45. See David Bollier, How Smart Growth Can Stop Sprawl 12-14 (1998) (quoting and citing Kunstler's more extensive treatment in James Howard Kunstler, Home from Nowhere: Remaking Our Everyday World for the Twenty-First Century 197-206 (1996)); Frug, supra note 8, at 1068 (discussing federal mortgage policies and other federal programs and appropriations for work in areas like defense contracting that undercut central city vitality). For an optimistic appraisal of reasons why recent amendments to federal tax law may reduce incentives for sprawling urban forms, see Environmental Law Institute, Linking Tax Law and Sustainable Urban Development: The Taxpayer Relief Act of 1997 (1998).
46. See United States v. Starrett City Assocs., 840 F.2d 1096, 1102 (2d Cir. 1988) (discussing integration efforts and "white flight" phenomena and the legality of race-conscious decisionmaking for the purpose of maintaining integrated populations in a New York City housing development); see also Frug, supra note 8, at 1068-69 (discussing government lending practices and public housing practices and their contributions to racial housing segregation).
47. See GAO Sprawl Report, supra note 1, at 7 (discussing the historical development and the factors contributing to urban sprawl).
48. See Been, supra note 8, at 1110 (discussing economic factors that induce movement beyond the city center); Jackson, supra note 16, at 6 ("[T]he price of land falls with greater and greater distance from city centers."). Differences in price, house, and lot size are stark and apparent in any newspaper's real estate section. In 1999, three to four bedroom homes in intown Atlanta neighborhoods (defined as neighborhoods within a circling highway and proximate to down- and mid-town offices), sold for between $300,000 to $600,000. See, e.g., Atl.-J. Const., June 21, 1999 (Classifieds), at E8 (listing many homes for sale in this price range). Substantially larger homes in new subdivisions located 20 to 30 miles outside of the Atlanta perimeter highway not only sell for less than half of intown prices, but also have more land and lower property taxes. See American Farmland Trust and The Georgia Conservancy, Summary Report, An Unlevel Playing Field: How Public Policies Favor Suburban Sprawl Over Downtown Development in Metropolitan Atlanta 8-10 (Jan. 1999) [hereinafter An Unlevel Playing Field] (discussing the lower costs of land development in suburban areas).
49. See Choices Between Asphalt and Nature: Americans Discuss Sprawl: Analysis of 20 Focus Groups Across the U.S. 6-7 (Feb. 1998) [hereinafter Choices] (unpublished report of surveys conducted for The Biodiversity Project, exploring American opinions on housing choices in partnership with The Nature Conservancy; surveys by Beiden Russonello & Stewart). These surveyors found focus group reactions to be consistent regardless of race or economic background. Only when questions were posed in terms of issues of civic responsibility or direct harms of major traffic congestion did respondents waver in their preference for exurban development styles and patterns. See id. Also, see generally Jackson, supra note 16, for a discussion that emphasizes the deep roots of Americans' prevalent desire for suburban home ownership.
50. The "new urbanist" visions for urban form and politics are discussed infra Part I.A.3.
51. See Choices, supra note 24, at 7.
52. Professor Frug notes that the current preferences of citizens are probably at variance with his vision and that of the "new urbanists," see Frug, supra note 8, at 1094-95, but argues that the costs of sprawl and empty central cities coupled with the benefits of a vigorous urban culture may suffice to start experimentation with alternatives that will prove their worth and solidify an incipient "central city-inner suburb coalition." See id. at 1094, 1099. Additional discussion of the benefits of the "new urbanism" or anti-sprawl vision are further discussed below in Part I.A.3.
53. See Choices, supra note 24, at 7. See generally Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (1991) (discussing how California ranchers' perceptions of legal rights influenced behavioral norms and frequently led to conflict resolution without recourse to courts, but that perceptions of legal rights were often contrary to actual law).
54. During the 1990's, Atlanta's inner ring residential suburbs have skyrocketed in value as many metropolitan area residents have sought to avoid traffic and long commutes. This increased demand and accompanied increase in prices has led to denser new development close to Atlanta's central business districts, but has once again led to a significant price differential between central metropolitan living and housing located on the urban periphery. See supra note 23 (citing to local Atlanta newspaper providing cost comparisons); see also Joel Garreau, Edge City: Life on the New Frontier 60 (1991) (reporting that as exurban office parks were built near Trenton, New Jersey, inner city Trenton residential properties escalated in value from approximately $22,000 in the 1970's to "more than $220,000 [around 1988]").
55. See Garreau, supra note 29, at 59-62 (observing that "edge city" development has often been accompanied by revitalization of downtown areas).
56. See generally Deindustrialization and Regional Economic Transformation: The Experience of the United States (Rodwin & Sazanami eds., 1989) (discussing the effect of emerging international economy and deindustrialization on the types of available jobs).
57. See id.; see also Jackson, supra note 16, at 266-71 (examining the movement of factories and offices to more suburban sites).
58. See Burchell, supra note 14, at 161-62 (detailing the creation of "edge cities" at the intersection of interstate highways); Fishman, supra note 7, at 28-36 (same); Karen P. Lane, Studies Buoy New Hopes for Brooklyn Waterfront, Crain's N.Y. Bus., Sept. 2, 1996, at 22.
59. For a detailed study of the political clout of a mall developer in New York State and the developer's extraordinary efforts to install a favorable local zoning board, see State of New York Commission on Government Integrity, Poughkeepsie '85: A Case Study of Election Law Abuses (June 1990) [hereinafter Poughkeepsie '85]. See also William E. Roper & Elizabeth Humstone, Wal-Mart in Vermont - The Case Against Sprawl, 22 Vt. L. Rev. 755, 757 (1998) (recounting and analyzing the battle over proposed siting of a Wal-Mart store two miles outside city center).
60. For a detailed study of the political clout of a mall developer in New York State and the developer's extraordinary efforts to install a favorable local zoning board, see State of New York Commission on Government Integrity, Poughkeepsie '85: A Case Study of Election Law Abuses (June 1990) [hereinafter Poughkeepsie '85]. See also William E. Roper & Elizabeth Humstone, Wal-Mart in Vermont - The Case Against Sprawl, 22 Vt. L. Rev. 755, 757 (1998) (recounting and analyzing the battle over proposed siting of a Wal-Mart store two miles outside city center).
61. See, e.g., Roger Schmenner, Geography and Character and Performance of Factories, in Industry Location and Public Policy 243 (Henry W. Herzog, Jr. & Alan M. Schlottmann eds., 1991).
62. See generally Garreau, supra note 29 (surveying the population shifts away from urban centers in a number of large cities); Robert Liberty, Planned Growth: The Oregon Model, 13 Nat. Resources. & Env't. 315, 317 (1998) (contrasting population density growth in metropolitan Portland, Oregon with dropping density in Atlanta); J.B. Ruhl, Taming the Suburban Amoeba in the Ecosystem Age: Some Do's and Don'ts, 3 Widener Law Symp. J. 61, 63 & n.7 (1998) (discussing growth in suburban areas and citing to works discussing suburban and perimeter development).
63. See generally Garreau, supra note 29 (surveying the population shifts away from urban centers in a number of large cities); Robert Liberty, Planned Growth: The Oregon Model, 13 Nat. Resources. & Env't. 315, 317 (1998) (contrasting population density growth in metropolitan Portland, Oregon with dropping density in Atlanta); J.B. Ruhl, Taming the Suburban Amoeba in the Ecosystem Age: Some Do's and Don'ts, 3 Widener Law Symp. J. 61, 63 & n.7 (1998) (discussing growth in suburban areas and citing to works discussing suburban and perimeter development).
64. See, e.g., Randall W. Eberts, Some Empirical Evidence on the Linkage Between Public Infrastructure and Local Economic Development, in Industry Location and Public Policy, supra note 35, at 83, 96 (examining the effect of deteriorating infrastructure on urban population); Fishman, supra note 7, at 25 (discussing the increase in sprawling forms of urban growth).
65. See supra Part II.
66. See Briffault, Local Government, supra note 9, at 1134-41 (discussing the sources of and competing uses for funds); Burchell, supra note 14, at 165-67 (summarizing use of public and private funds); Frug, supra note 8, at 1070-75, 1081-89 (surveying municipalities' decisionmaking and use of funds).
67. Sprawl cities such as Los Angeles have sought to add mass transportation alternatives, but with preexisting dispersed business and residential neighborhoods, anticipated ridership for new rail lines is low. See Todd S. Purdum, A Subway Line Extends to Hollywood: But in Car-Crazed Los Angeles, Underground Travel Has Its Critics, N.Y. Times, June 12, 1999, at A9 (reporting on opening of new segments of the Los Angeles subway, but pointing out that while 3.4 million commuters in New York City use subways every day, Los Angeles hopes that weekday commuter use will rise to 125,000 passengers daily).
68. See U.S. Dep't of Commerce, Statistical Abstract of the United States 403 (117th ed. 1997) (reporting that between 1960 and 1996, percentage of employed married women jumped from 31.9% to 61.2%, while percentage of employed married men dropped slightly from 89.2% to 77.6%). In 1940, only 14.7% of married women were in the workforce. See U.S. Dep't of Commerce, Statistical Abstract of the United States 223 (1970). A recent survey by a nonprofit organization, Catalyst, found that in 1950, 63% of working families had a stay-at-home spouse, while in 1998 only 17% of working families had a stay at home spouse. Dual-worker couples now make up 43% of the total workforce, up from 20% in 1950. See Nancy Rivera Brooks, Two-Career Couples Just Want Some Workplace Flexibility Study Shows, L.A. Times, Feb. 8, 1998, at D5. For a thorough exploration of changing demographics in the workforce and their implication for transportation policy and efforts to clean the nation's air, see Craig N. Oren, Getting Commuters Out of Their Cars: What Went Wrong?, 17 Stan. Envtl. L.J. 141 (1998).
69. See U.S. Dep't of Commerce, Statistical Abstract of the United States 403 (117th ed. 1997) (reporting that between 1960 and 1996, percentage of employed married women jumped from 31.9% to 61.2%, while percentage of employed married men dropped slightly from 89.2% to 77.6%). In 1940, only 14.7% of married women were in the workforce. See U.S. Dep't of Commerce, Statistical Abstract of the United States 223 (1970). A recent survey by a nonprofit organization, Catalyst, found that in 1950, 63% of working families had a stay-at-home spouse, while in 1998 only 17% of working families had a stay at home spouse. Dual-worker couples now make up 43% of the total workforce, up from 20% in 1950. See Nancy Rivera Brooks, Two-Career Couples Just Want Some Workplace Flexibility Study Shows, L.A. Times, Feb. 8, 1998, at D5. For a thorough exploration of changing demographics in the workforce and their implication for transportation policy and efforts to clean the nation's air, see Craig N. Oren, Getting Commuters Out of Their Cars: What Went Wrong?, 17 Stan. Envtl. L.J. 141 (1998).
70. See infra notes 97-100 and accompanying text.
71. See F. Gerard Adams et al., Undeveloped Land Prices During Urbanization: A Micro-Empirical Study Over Time, 50 Rev. of Econ. & Stat. 248, 252-53 (1968).
72. See GAO Sprawl Report, supra note 1, at 10, 41-44 (discussing substantial federal share of transportation spending, but also noting that federal expenditure's contribution to sprawl is difficult to discern because of gaps in the collected data).
73. Georgia, for example, has long had an infamous, constitutionally-based gas tax that requires that seven and a half cents from each gallon of gasoline purchased go exclusively to work on roads and bridges. See Ga. Const, art. III, § 9, par. 6(b); Ga. Code Ann. § 48-9-3 (1995) (implementing legislation).
74. See Frug, supra note 8, at 1081-89, 1091-94 (discussing the historical trend of separating commercial and residential land uses and the new urbanist theory).
75. For a collection of articles analyzing environmental inequity and the relationships among transportation, investment decisions, and race and class, see Just Transportation: Dismantling Race and Class Barriers to Mobility (Robert D. Bullard & Glenn S. Johnson eds., 1997).
76. See Jackson, supra note 16, at 285; Briffault, Local Government, supra note 9, at 1137.
77. See Jackson, supra note 16, at 266-71.
78. For a frequently updated and detailed discussion of the brownfields phenomenon and federal, state, and local laws and initiatives, see Brownfields Law and Practice: The Cleanup and Redevelopment of Contaminated Land (Michael B. Gerrard ed., 1997) [hereinafter Brownfields Law and Practice]. 51. See Buzbee, supra note 4, at 5-12.
79. See id. at 12-19; see also William W. Buzbee, A Roadmap to the Brownfields Transaction-Perspectives and Goals of the Parties, in Brownfields Law and Practice, supra note 50, §2.03, at 107-10, 118-22; Joel B. Eisen, "Brownfields of Dreams"?: Challenges and Limits of Voluntary Cleanup Programs and Incentives, 1996 U. Ill. L. Rev. 883, 886 ("The most prominent approaches [to encourage reuse of brownfields sites] are those . . . that attempt to alleviate developers' fears of liability . . . .").
80. See id. at 12-19; see also William W. Buzbee, A Roadmap to the Brownfields Transaction-Perspectives and Goals of the Parties, in Brownfields Law and Practice, supra note 50, §2.03, at 107-10, 118-22; Joel B. Eisen, "Brownfields of Dreams"?: Challenges and Limits of Voluntary Cleanup Programs and Incentives, 1996 U. Ill. L. Rev. 883, 886 ("The most prominent approaches [to encourage reuse of brownfields sites] are those . . . that attempt to alleviate developers' fears of liability . . . .").
81. For discussion of federal and state brownfield regulatory reforms and grants, see Eisen, supra note 52, at 887-88, and William W. Buzbee, Remembering Repose: Voluntary Contamination Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 Minn. L. Rev. 35, 82-96 (1995). For a report reviewing how federal agencies have recently sought to coordinate brownfield rehabilitation efforts and incentives, see United States General Accounting Office, GAO/RCED-99-86, Report to the Chairman, Committee on Commerce, House of Representatives, Environmental Protection: Agencies Have Made Progress in Implementing the Federal Brownfield Partnership Initiative (Apr. 1999).
82. For discussion of federal and state brownfield regulatory reforms and grants, see Eisen, supra note 52, at 887-88, and William W. Buzbee, Remembering Repose: Voluntary Contamination Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 Minn. L. Rev. 35, 82-96 (1995). For a report reviewing how federal agencies have recently sought to coordinate brownfield rehabilitation efforts and incentives, see United States General Accounting Office, GAO/RCED-99-86, Report to the Chairman, Committee on Commerce, House of Representatives, Environmental Protection: Agencies Have Made Progress in Implementing the Federal Brownfield Partnership Initiative (Apr. 1999).
83. See Buzbee, supra note 52, at 1-10. Nevertheless, the track record of federal brownfields initiatives and several states' voluntary cleanup approval programs suggests reason for optimism. Only a small amount of governmental encouragement may be necessary to modify decisions that would otherwise contribute to inner city and brownfields ills that usually accompany urban sprawl. See id.; Eisen, supra note 52, at 886-87. Brownfield site successes may, however, be difficult to replicate outside of the context of massive contamination fears that are removed through a responsive regulatory scheme and redevelopment grants. Without recent brownfields redevelopment incentives, owners and potential developers of brownfields sites were unable to ascertain with much certainty whether regulators viewed a particular site as posing a huge or minor liability risk. See Buzbee, supra note 53, at 47-60 (discussing the substantial uncertainty of brownfields cleanup liability in the absence of guidance from a responsive regulatory scheme). Under the recent wave of brownfields and voluntary cleanup regimes, preferential regulatory treatment can convert sites viewed as liability risks into sites of substantial value. The EPA's Brownfields redevelopment case histories indicate that once worst-case liability fears are allayed, sites in commercially viable locations are
84. Cities Ask Congress for Brownfields Relief as Hearing Begins on Chafee-Smith Bill, 30 Env. Rep. 166-67 (May 28, 1999) (discussing bipartisan interest in brownfields legislation and municipalities' interest in additional brownfields funding and regulatory relief). For discussion of forms of federal conditional spending and enactment and implementation hurdles to effective spending, see infra Part III.B.3.
85. See Bollier, supra note 20, at 2-3, 9-12.
86. See Frank, supra note 18, at 18-19; Oren, supra note 41, at 168-69.
87. See Frank, supra note 18, at 21.
88. For a discussion of pollution control efforts and their successes, as well as the destructive effects of increased usage of larger and higher polluting sports utility vehicles and light trucks, see Keith Bradsher, Light Trucks Increase Profits but Foul Air More Than Cars, N.Y. Times, Nov. 30, 1997, at A1.
89. See Oren, supra note 41, at 160-73.
90. See Frank, supra note 18, at 23 (discussing how sprawling growth will outpace benefits of technological improvement in automobile pollution); Tirza S. Wahrman, Breaking the Logjam: The Peak Pricing of Congested Urban Roadways Under the Clean Air Act to Improve Air Quality and Reduce Vehicle Miles Traveled, 8 Duke Envtl. L. & Pol'y F. 181, 184-88 (1998).
91. See supra note 41 and accompanying text.
92. See Oren, supra note 41, at 171-72; see also Wahrman, supra note 60, at 186 (noting that motor vehicles accounted for 88.2% of miles traveled in 1990).
93. See Jackson, supra note 16, at 10 (contrasting 1980 census data revealing average American worker travels 9.2 miles and 22 minutes to work compared to other countries' common work practice of lunch at home and siestas); Oren, supra note 41, at 171-72.
94. See Clean Air Act, 42 U.S.C. §§ 7409-7410 (1994) (setting out requirements for State Implementation Plans and criteria and procedures for setting National Ambient Air Quality Standards).
95. See id. § 7409.
96. See id.; id. § 7410 (setting forth State Implementation Plan requirements); id. § 7509 (stating general sanctions and consequences of nonattainment); id. § 7511(a)-(j) (setting forth more detailed requirements for multistate ozone nonattainment areas).
97. See id. § 7410(m) (establishing basic procedures for applying sanctions); id. § 7509(b)(1) (specifying sanctions that may be imposed on highway projects); Environmental Defense Fund v. EPA, 167 F.3d 641, 651 (D.C. Cir. 1999) (striking down EPA regulation regarding intersection of Federal Clean Air Act and local planning requirement under transit-related federal laws); see also David Goldberg, Deadline is Looming for a Regional Metro Plan, in Managing Sprawl 14, 14 (Tony Bennett & Cynthia Renfro eds., 1997) (reprint of Atl.-J. Const. article dated Dec. 29, 1996). Federal sanctions for Clean Air Act noncompliance are vulnerable to legislative override and federal agency officials encounter political pressure to refrain from imposing sanctions. See Thomas O. McGarity, Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 Pac. L.J. 1521, 1553-54, 1626 (1996) (describing EPA's reaction to certain instances of political pressure); Alec Zacaroli, Senator Seeks Repeal of Highway Sanctions in Air Act: Groups Fear Rider in EPA Budget, 29 Env. Rep. 2213 (Mar. 12, 1999).
98. See id. § 7410(m) (establishing basic procedures for applying sanctions); id. § 7509(b)(1) (specifying sanctions that may be imposed on highway projects); Environmental Defense Fund v. EPA, 167 F.3d 641, 651 (D.C. Cir. 1999) (striking down EPA regulation regarding intersection of Federal Clean Air Act and local planning requirement under transit-related federal laws); see also David Goldberg, Deadline is Looming for a Regional Metro Plan, in Managing Sprawl 14, 14 (Tony Bennett & Cynthia Renfro eds., 1997) (reprint of Atl.-J. Const. article dated Dec. 29, 1996). Federal sanctions for Clean Air Act noncompliance are vulnerable to legislative override and federal agency officials encounter political pressure to refrain from imposing sanctions. See Thomas O. McGarity, Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 Pac. L.J. 1521, 1553-54, 1626 (1996) (describing EPA's reaction to certain instances of political pressure); Alec Zacaroli, Senator Seeks Repeal of Highway Sanctions in Air Act: Groups Fear Rider in EPA Budget, 29 Env. Rep. 2213 (Mar. 12, 1999).
99. See id. § 7410(m) (establishing basic procedures for applying sanctions); id. § 7509(b)(1) (specifying sanctions that may be imposed on highway projects); Environmental Defense Fund v. EPA, 167 F.3d 641, 651 (D.C. Cir. 1999) (striking down EPA regulation regarding intersection of Federal Clean Air Act and local planning requirement under transit-related federal laws); see also David Goldberg, Deadline is Looming for a Regional Metro Plan, in Managing Sprawl 14, 14 (Tony Bennett & Cynthia Renfro eds., 1997) (reprint of Atl.-J. Const. article dated Dec. 29, 1996). Federal sanctions for Clean Air Act noncompliance are vulnerable to legislative override and federal agency officials encounter political pressure to refrain from imposing sanctions. See Thomas O. McGarity, Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 Pac. L.J. 1521, 1553-54, 1626 (1996) (describing EPA's reaction to certain instances of political pressure); Alec Zacaroli, Senator Seeks Repeal of Highway Sanctions in Air Act: Groups Fear Rider in EPA Budget, 29 Env. Rep. 2213 (Mar. 12, 1999).
100. See id. § 7410(m) (establishing basic procedures for applying sanctions); id. § 7509(b)(1) (specifying sanctions that may be imposed on highway projects); Environmental Defense Fund v. EPA, 167 F.3d 641, 651 (D.C. Cir. 1999) (striking down EPA regulation regarding intersection of Federal Clean Air Act and local planning requirement under transit-related federal laws); see also David Goldberg, Deadline is Looming for a Regional Metro Plan, in Managing Sprawl 14, 14 (Tony Bennett & Cynthia Renfro eds., 1997) (reprint of Atl.-J. Const. article dated Dec. 29, 1996). Federal sanctions for Clean Air Act noncompliance are vulnerable to legislative override and federal agency officials encounter political pressure to refrain from imposing sanctions. See Thomas O. McGarity, Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 Pac. L.J. 1521, 1553-54, 1626 (1996) (describing EPA's reaction to certain instances of political pressure); Alec Zacaroli, Senator Seeks Repeal of Highway Sanctions in Air Act: Groups Fear Rider in EPA Budget, 29 Env. Rep. 2213 (Mar. 12, 1999).
101. See Oren, supra note 41, at 150-61 (discussing contribution of cars to air pollution and effects of such pollution).
102. See id. at 153-54.
103. See id. at 151-52.
104. See Environmental Protection Agency, Agency Regulatory Plan, 63 Fed. Reg. 61,340, 61,373 (Nov. 9, 1998).
105. See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (1997) (to be codified at 40 C.F.R. pt. 50); National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38, 856 (1997) (to be codified at 40 C.F.R. pt. 50); Lucinda Minton Langworthy, EPA's New Air Quality Standards for Particulate Matter and Ozone: Boon for Health or Threat to the Clean Air Act?, 28 Envtl. L. Rep. 10,502, 10,504 (1998). In a recent case, the United States Court of Appeals for the District of Columbia Circuit struck down the validity of these regulations on "delegation doctrine" grounds, finding that legislative instructions to the EPA were unconstitutionally broad if not cured by a narrowing EPA construction of statutory criteria. See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1038 (D.C. Cir. 1999) ("Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power, but an interpretation without the constitutional weakness is or may be available, our response is not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own."). The EPA, however, may seek a rehearing en banc or Supreme Court review of this decision. See Matthew L. Wald, Court Overturns Air Quality Rules, N.Y. Times, May 15, 1999, at A1.
106. See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (1997) (to be codified at 40 C.F.R. pt. 50); National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38, 856 (1997) (to be codified at 40 C.F.R. pt. 50); Lucinda Minton Langworthy, EPA's New Air Quality Standards for Particulate Matter and Ozone: Boon for Health or Threat to the Clean Air Act?, 28 Envtl. L. Rep. 10,502, 10,504 (1998). In a recent case, the United States Court of Appeals for the District of Columbia Circuit struck down the validity of these regulations on "delegation doctrine" grounds, finding that legislative instructions to the EPA were unconstitutionally broad if not cured by a narrowing EPA construction of statutory criteria. See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1038 (D.C. Cir. 1999) ("Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power, but an interpretation without the constitutional weakness is or may be available, our response is not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own."). The EPA, however, may seek a rehearing en banc or Supreme Court review of this decision. See Matthew L. Wald, Court Overturns Air Quality Rules, N.Y. Times, May 15, 1999, at A1.
107. See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (1997) (to be codified at 40 C.F.R. pt. 50); National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38, 856 (1997) (to be codified at 40 C.F.R. pt. 50); Lucinda Minton Langworthy, EPA's New Air Quality Standards for Particulate Matter and Ozone: Boon for Health or Threat to the Clean Air Act?, 28 Envtl. L. Rep. 10,502, 10,504 (1998). In a recent case, the United States Court of Appeals for the District of Columbia Circuit struck down the validity of these regulations on "delegation doctrine" grounds, finding that legislative instructions to the EPA were unconstitutionally broad if not cured by a narrowing EPA construction of statutory criteria. See American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1038 (D.C. Cir. 1999) ("Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power, but an interpretation without the constitutional weakness is or may be available, our response is not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own."). The EPA, however, may seek a rehearing en banc or Supreme Court review of this decision. See Matthew L. Wald, Court Overturns Air Quality Rules, N.Y. Times, May 15, 1999, at A1.
108. See Oren, supra note 41, at 150-60.
109. Id. at 155.
110. See Purdum, supra note 40 (assessing reasons for low usage and questionable economic viability of subways in Los Angeles).
111. See Fishman, supra note 7, at 33-35; Oren, supra note 41, at 169-70.
112. See Oren, supra note 41, at 169-73. To encourage state and local expenditures to provide transportation links between low-income employees and employers, the Transportation Equity Act for the 21st Century (TEA-21) federal transportation law provides special monetary incentives in the form of a "competitive grant selection" for private and government efforts to provide needed transportation links. See Transportation Equity Act for the 21st Century (TEA-21), Pub. L. No. 105-178, § 3037, 112 Stat. 107, 387-92 (1998) (to be codified at 49 U.S.C. § 5309) (entitled "Job Access and Reverse Commute Grants"). Section 3037 includes legislative findings that "94 percent of welfare recipients do not own cars" and that with "two-thirds of all new jobs . . . in the suburbs" and "three-quarters of welfare recipients liv[ing] in rural areas or central cities," mass transit to link low income workers and suburban jobs is sought by such residents "to gain access to suburban employment opportunities." Id. § 3037(a).
113. See Bollier, supra note 20, at 20-24. "Green space" refers to land that still has substantial plant life and has not yet been developed for residential, transportation, or business use. Green spaces range from parks to government-owned lands of all types that are not yet developed, to privately owned property that is either undeveloped or has retained substantial undeveloped acreage.
114. See infra notes 89-91 and accompanying text.
115. Although the water quality portions of the federal Clean Water Act long remained moribund, citizen suit litigation during the late 1990s has activated state and federal agencies to comply with the law. For a discussion of relevant legislative and regulatory language, as well as litigation and regulatory activity, see generally three linked articles by Oliver A. Houck: Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 10,329 (1997) (describing the enactment of 303(d) and the promotion of this approach to water pollution control by state governments and industry); Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 10,391 (1997) (describing subsequent neglect of 303(d) by the states and the EPA and the resulting litigation); Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 Envtl. L. Rep. 10,415 (1998) (describing the new 303(d) program as it emerges from the courts).
116. Although the water quality portions of the federal Clean Water Act long remained moribund, citizen suit litigation during the late 1990s has activated state and federal agencies to comply with the law. For a discussion of relevant legislative and regulatory language, as well as litigation and regulatory activity, see generally three linked articles by Oliver A. Houck: Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 10,329 (1997) (describing the enactment of 303(d) and the promotion of this approach to water pollution control by state governments and industry); Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 10,391 (1997) (describing subsequent neglect of 303(d) by the states and the EPA and the resulting litigation); Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 Envtl. L. Rep. 10,415 (1998) (describing the new 303(d) program as it emerges from the courts).
117. Although the water quality portions of the federal Clean Water Act long remained moribund, citizen suit litigation during the late 1990s has activated state and federal agencies to comply with the law. For a discussion of relevant legislative and regulatory language, as well as litigation and regulatory activity, see generally three linked articles by Oliver A. Houck: Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 10,329 (1997) (describing the enactment of 303(d) and the promotion of this approach to water pollution control by state governments and industry); Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. 10,391 (1997) (describing subsequent neglect of 303(d) by the states and the EPA and the resulting litigation); Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 Envtl. L. Rep. 10,415 (1998) (describing the new 303(d) program as it emerges from the courts).
118. "Point sources" are defined as any "discernible, confined and discrete conveyance" that discharges or may discharge pollutants. See Clean Water Act, 33 U.S.C. § 1362(14) (1994).
119. For a classic scholarly embrace of the charms and benefits of complex, older city life, especially in areas not yet marred by attempts at comprehensive planning and modern zoning methods, see Jane Jacobs, The Death and Life of Great American Cities (1961).
120. See William H. Whyte, Introduction, in The Exploding Metropolis, supra note 2, at 8-19 (discussing benefits of vital urban centers and the need for citizen involvement to counter likely harms of exurban development).
121. Portland's creative efforts to constrain growth and retain nearby green spaces are often touted as an example for other jurisdictions to follow. See, e.g., Carl Abbott, Portland: Planning, Politics and Growth in a Twentieth-Century City 206-28 (1983) (discussing Portland's efforts to redefine the city through downtown planning); Bollier, supra note 20, at 33-34 (stating that Portland has become one of the most attractive cities in the nation through its comprehensive planned growth); H. Jeffrey Leonard, Managing Oregon's Growth: The Politics of Development Planning (1983) (describing Oregon's efforts to address land use and development challenges). Portland has thrived economically and offers alternative modes of governance, but its use of urban growth boundaries to encourage urban "infill" and deter sprawl has met with only limited success. See Arthur C. Nelson, Oregon's Urban Growth Boundary Policy as a Landmark Planning Tool, in Planning the Oregon Way 25-45 (Carl Abbott et al. eds., 1994); infra notes 302-11 and accompanying text.
122. Portland's creative efforts to constrain growth and retain nearby green spaces are often touted as an example for other jurisdictions to follow. See, e.g., Carl Abbott, Portland: Planning, Politics and Growth in a Twentieth-Century City 206-28 (1983) (discussing Portland's efforts to redefine the city through downtown planning); Bollier, supra note 20, at 33-34 (stating that Portland has become one of the most attractive cities in the nation through its comprehensive planned growth); H. Jeffrey Leonard, Managing Oregon's Growth: The Politics of Development Planning (1983) (describing Oregon's efforts to address land use and development challenges). Portland has thrived economically and offers alternative modes of governance, but its use of urban growth boundaries to encourage urban "infill" and deter sprawl has met with only limited success. See Arthur C. Nelson, Oregon's Urban Growth Boundary Policy as a Landmark Planning Tool, in Planning the Oregon Way 25-45 (Carl Abbott et al. eds., 1994); infra notes 302-11 and accompanying text.
123. Portland's creative efforts to constrain growth and retain nearby green spaces are often touted as an example for other jurisdictions to follow. See, e.g., Carl Abbott, Portland: Planning, Politics and Growth in a Twentieth-Century City 206-28 (1983) (discussing Portland's efforts to redefine the city through downtown planning); Bollier, supra note 20, at 33-34 (stating that Portland has become one of the most attractive cities in the nation through its comprehensive planned growth); H. Jeffrey Leonard, Managing Oregon's Growth: The Politics of Development Planning (1983) (describing Oregon's efforts to address land use and development challenges). Portland has thrived economically and offers alternative modes of governance, but its use of urban growth boundaries to encourage urban "infill" and deter sprawl has met with only limited success. See Arthur C. Nelson, Oregon's Urban Growth Boundary Policy as a Landmark Planning Tool, in Planning the Oregon Way 25-45 (Carl Abbott et al. eds., 1994); infra notes 302-11 and accompanying text.
124. See Garreau, supra note 29, at 59-62 (observing that the "edge city" development appears to be accompanied by revitalization of many metropolitan areas' urban center).
125. For the normative argument that city life offers political and social benefits precisely because of its diversity and interactions among strangers, see Iris Marion Young, Justice and the Politics of Difference 236-41 (1990). For legal scholarship exploring the "civic republican" theory of constitutional democracy, see Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511 (1992); Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493 (1988). "Civic Republicans" can be categorized generally as scholars or political activists who emphasize the importance of pursuing public policies that will foster civic engagement, debate, and deliberative decisionmaking about societal issues and needs.
126. For the normative argument that city life offers political and social benefits precisely because of its diversity and interactions among strangers, see Iris Marion Young, Justice and the Politics of Difference 236-41 (1990). For legal scholarship exploring the "civic republican" theory of constitutional democracy, see Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511 (1992); Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493 (1988). "Civic Republicans" can be categorized generally as scholars or political activists who emphasize the importance of pursuing public policies that will foster civic engagement, debate, and deliberative decisionmaking about societal issues and needs.
127. For the normative argument that city life offers political and social benefits precisely because of its diversity and interactions among strangers, see Iris Marion Young, Justice and the Politics of Difference 236-41 (1990). For legal scholarship exploring the "civic republican" theory of constitutional democracy, see Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511 (1992); Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493 (1988). "Civic Republicans" can be categorized generally as scholars or political activists who emphasize the importance of pursuing public policies that will foster civic engagement, debate, and deliberative decisionmaking about societal issues and needs.
128. See generally Jacobs, supra note 82; James Howard Kunstler, Home From Nowhere: Remaking Our Everyday World for the Twenty-First Century (1996) (arguing that urban design trends need to be revisited). For planning and architecturally oriented works, see Moshe Safdie & Wendy Kohn, The City After the Automobile: An Architect's Vision (1997); Peter Katz, The New Urbanism: Toward an Architecture of Community (1994). For extensive bibliographies of sprawl-related literature, see Bollier, supra note 20, at 77-82; Ewing, supra note 2, at 119-26.
129. See generally Jacobs, supra note 82; James Howard Kunstler, Home From Nowhere: Remaking Our Everyday World for the Twenty-First Century (1996) (arguing that urban design trends need to be revisited). For planning and architecturally oriented works, see Moshe Safdie & Wendy Kohn, The City After the Automobile: An Architect's Vision (1997); Peter Katz, The New Urbanism: Toward an Architecture of Community (1994). For extensive bibliographies of sprawl-related literature, see Bollier, supra note 20, at 77-82; Ewing, supra note 2, at 119-26.
130. See generally Jacobs, supra note 82; James Howard Kunstler, Home From Nowhere: Remaking Our Everyday World for the Twenty-First Century (1996) (arguing that urban design trends need to be revisited). For planning and architecturally oriented works, see Moshe Safdie & Wendy Kohn, The City After the Automobile: An Architect's Vision (1997); Peter Katz, The New Urbanism: Toward an Architecture of Community (1994). For extensive bibliographies of sprawl-related literature, see Bollier, supra note 20, at 77-82; Ewing, supra note 2, at 119-26.
131. For a classic work that explores the deep roots of American's romanticized view of independent suburban home ownership, see Jackson, supra note 16.
132. For discussion of the magnitude and implications of biodiversity loss, see Edward O. Wilson, In Search of Nature (1996). For discussions of current federal policies and their effect on biodiversity protection, see Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1 (1997).
133. For discussion of the magnitude and implications of biodiversity loss, see Edward O. Wilson, In Search of Nature (1996). For discussions of current federal policies and their effect on biodiversity protection, see Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1 (1997).
134. Ruhl, supra note 36, at 66.
135. See infra Part IV. Professor Ruhl suggests that if the federal government sought to increase its involvement in biodiversity protection by enacting more laws or regulations utilizing coercive regulatory strategies, it would likely lead to "a full scale political rumble." Ruhl, supra note 11, at 651. Ruhl instead proposes increased reliance on a largely cooperative regulatory regime that includes monetary incentives and streamlined regulatory processes as enticements to involve state and local governments in biodiversity protection efforts. See id. at 661-71 (setting forth Ruhl's suggested components of a Biological Resources Zone Management Act).
136. The theoretical framework offered shares many attributes with the recent "political market" equilibrium suggested by Professors Keohane, Revesz and Stavins, see Nathaniel Keohane et al., The Choice of Regulatory Instruments in Environmental Policy, 22 Harv. Envtl. L. Rev. 313, 322-23 (1998), as well as often-similar insights about the dynamics of environmental politics suggested in Christopher H. Schroeder, Rational Choice Versus Republican Moment Explanations for Environmental Laws, 1969-73, 9 Duke Envtl. Law & Pol'y F. 29 (1998). Keohane, Schroeder, and this Article all draw on an earlier generation of legal, economic, and political science scholarship that bridges disciplines to explore the underpinnings of legislative and regulatory activity, particularly in environmental law, where rigorous regulatory regimes are generally unexpected due to disparate economic and political incentives of individuals and groups deciding whether and how to act to achieve political success. See id. at 33- 41(discussing theories of rational choice, collective action and environmental politics); infra Part III.B.3.a.
137. The theoretical framework offered shares many attributes with the recent "political market" equilibrium suggested by Professors Keohane, Revesz and Stavins, see Nathaniel Keohane et al., The Choice of Regulatory Instruments in Environmental Policy, 22 Harv. Envtl. L. Rev. 313, 322-23 (1998), as well as often-similar insights about the dynamics of environmental politics suggested in Christopher H. Schroeder, Rational Choice Versus Republican Moment Explanations for Environmental Laws, 1969-73, 9 Duke Envtl. Law & Pol'y F. 29 (1998). Keohane, Schroeder, and this Article all draw on an earlier generation of legal, economic, and political science scholarship that bridges disciplines to explore the underpinnings of legislative and regulatory activity, particularly in environmental law, where rigorous regulatory regimes are generally unexpected due to disparate economic and political incentives of individuals and groups deciding whether and how to act to achieve political success. See id. at 33-41(discussing theories of rational choice, collective action and environmental politics); infra Part III.B.3.a.
138. "Public Choice" scholarship generally refers to the application of the tools of economic analysis to the study of behavior in the political arena. See Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 1, 7 (1991) (citing the definition of public choice scholarship offered in D. Mueller, Public Choice II 1 (1989)). A basic tenet of public choice scholarship is that one cannot assume that political activity is public regarding or will in fact achieve its stated public regarding goal. Much as markets can fail, political solutions may from their inception or in their implementation fail to achieve stated goals. This skeptical perspective on politics predates the recent wave of public choice scholarship. One of the earliest modern critiques of politics that closely resembles the public choice perspective was offered by Ronald Coase in 1960: "[T]here is no reason to suppose that government regulation is called for simply because the problem is not well handled by the market or the firm. Satisfactory views on policy can only come from a patient study of how, in practice, the market, firms and governments handle the problem of harmful effects." Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 18 (1960).
139. "Public Choice" scholarship generally refers to the application of the tools of economic analysis to the study of behavior in the political arena. See Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 1, 7 (1991) (citing the definition of public choice scholarship offered in D. Mueller, Public Choice II 1 (1989)). A basic tenet of public choice scholarship is that one cannot assume that political activity is public regarding or will in fact achieve its stated public regarding goal. Much as markets can fail, political solutions may from their inception or in their implementation fail to achieve stated goals. This skeptical perspective on politics predates the recent wave of public choice scholarship. One of the earliest modern critiques of politics that closely resembles the public choice perspective was offered by Ronald Coase in 1960: "[T]here is no reason to suppose that government regulation is called for simply because the problem is not well handled by the market or the firm. Satisfactory views on policy can only come from a patient study of how, in practice, the market, firms and governments handle the problem of harmful effects." Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 18 (1960).
140. "Public Choice" scholarship generally refers to the application of the tools of economic analysis to the study of behavior in the political arena. See Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 1, 7 (1991) (citing the definition of public choice scholarship offered in D. Mueller, Public Choice II 1 (1989)). A basic tenet of public choice scholarship is that one cannot assume that political activity is public regarding or will in fact achieve its stated public regarding goal. Much as markets can fail, political solutions may from their inception or in their implementation fail to achieve stated goals. This skeptical perspective on politics predates the recent wave of public choice scholarship. One of the earliest modern critiques of politics that closely resembles the public choice perspective was offered by Ronald Coase in 1960: "[T]here is no reason to suppose that government regulation is called for simply because the problem is not well handled by the market or the firm. Satisfactory views on policy can only come from a patient study of how, in practice, the market, firms and governments handle the problem of harmful effects." Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 18 (1960).
141. To use the terminology recently suggested by Professor Schroeder, this Article instead adopts something closely resembling what he calls either "broad self-interest" or "material egoism" views of rationality. See Schroeder, supra note 92, at 40. For broader critiques of the limitations of narrower, public choice-based concepts of rationality, see Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. Rev. 1, 5-23 (1991). See also Robert C. Ellickson, Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics, 65 Chi.-Kent L. Rev. 23, 35-55 (1989) (discussing the relevance of psychology and sociology in understanding economic analysis).
142. To use the terminology recently suggested by Professor Schroeder, this Article instead adopts something closely resembling what he calls either "broad self-interest" or "material egoism" views of rationality. See Schroeder, supra note 92, at 40. For broader critiques of the limitations of narrower, public choice-based concepts of rationality, see Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. Rev. 1, 5-23 (1991). See also Robert C. Ellickson, Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics, 65 Chi.-Kent L. Rev. 23, 35-55 (1989) (discussing the relevance of psychology and sociology in understanding economic analysis).
143. See Jennifer Arien, Comment: The Future of Behavioral Economic Analysis of Law, 51 Vand. L. Rev. 1765, 1767-70 (1998) (acknowledging significance of diverse theories of human and institutional motivation and behavior, but arguing that "rational choice remains a reasonable description of individual choice" and that even where other theories of non-rational behavior apply, no alternate "robust, tractable model" yet exists).
144. For a similar framework built upon much of the same preceding theoretical literature but applied to address the different question of why particular regulatory instruments are used in environmental laws, see Keohane et al., supra note 92.
145. See, e.g., Jackson, supra note 16, at Chapters 5, 6, 9 & 11 (discussing the contributions to suburbanization of commuter railroads, trolleys, cars, and government policies); An Unlevel Playing Field, supra note 23, at 11-12 (attributing patterns of urban impoverishment and suburban wealth in Atlanta to the unintended consequences of transportation policies); Fishman, supra note 7, at 28-38 (correlating the transformation of modern cities with the development of the transportation system through the twentieth century); Frank, supra note 18, at 30 (arguing for linked transportation modes to reduce harms associated with the excessive use of cars).
146. New highways seldom create lasting lower traffic densities. Commuters and developers adjust, leading to quick elimination of touted lower density traffic. See Michelle Garland & Christopher Bender, How Bad Transportation Investment Decisions Affect the Quality of People's Lives, 9 Progress 4, 6 (May 1999) (Surface Transportation Policy Project) (reporting that traffic congestion levels in cities undertaking substantial new highway expansion projects was not significantly different than in cities undertaking 25% less growth in lane miles); Oren, supra note 41, at 172 (analyzing short-lived benefits of new highways and describing this phenomenon as the "'Field of Dreams' rule: if you build it they will come" (quoting a line from the movie, Field of Dreams (Universal 1989), which in turn was based on W. P. Kinsella's novel, Shoeless Joe (1982))).
147. New highways seldom create lasting lower traffic densities. Commuters and developers adjust, leading to quick elimination of touted lower density traffic. See Michelle Garland & Christopher Bender, How Bad Transportation Investment Decisions Affect the Quality of People's Lives, 9 Progress 4, 6 (May 1999) (Surface Transportation Policy Project) (reporting that traffic congestion levels in cities undertaking substantial new highway expansion projects was not significantly different than in cities undertaking 25% less growth in lane miles); Oren, supra note 41, at 172 (analyzing short-lived benefits of new highways and describing this phenomenon as the "'Field of Dreams' rule: if you build it they will come" (quoting a line from the movie, Field of Dreams (Universal 1989), which in turn was based on W. P. Kinsella's novel, Shoeless Joe (1982))).
148. See Adams, supra note 43, at 249; Jackson, supra note 16, at 163-68; supra note 43 and accompanying text. See generally Richard Fogelsong, Married to the Mouse: Walt Disney World and Orlando (Yale University Press, forthcoming) (recounting substantial efforts of Orlando business people and officials to build new highway links and the critical importance of those links to the decision of Disney to build Walt Disney World in Orlando).
149. Anti-highway politics may similarly be skewed in favor of private interests such as the rail and alternative transportation industry for the same reasons highway construction has been such a durable political and economic commodity. Public benefits may accrue from each type of development, especially rail transit's creation of an alternative to the automobile, but the likelihood of "rent seeking" behavior in which private citizens or officials seek to extract personal wealth from government decisions is high in these contexts. See Fred S. McChesney, Money for Nothing: Politicians, Rent Extraction, and Political Extortion 9-10 (1997) (defining "rents" as benefits created through government regulation "that were unavailable other than through politics, or were more cheaply available through politics"); see also Purdum, supra note 40 (reporting that Los Angeles' new subway segments were built with substantial cost overruns, costs of up to $500 million a mile, with "pork-barrel politicking . . . determin[ing] [their] proposed route in an effort to spread the spoils of construction jobs"). Commuter rail lines may encourage newer development to cluster near the rail lines, but as much as highways open up new land to economically attractive development, new rail lines will similarly trigger new exurban development, albeit in a more concentrated context that is also less reliant on automobiles. Less land will be consumed by development linked to new rail lines and less car pollution may be created, but such rail lines will trigger new development. For a historical discussion of the link between rail construction and suburbanization, see Jackson, supra note 16, at 91-102.
150. See, e.g., Holcombe, supra note 5, at 5 (arguing that government land-use planning is "more likely [to] hinder than help the development process"). But see John W. Frece & Andrea Leahy-Fucheck, Smart Growth and Neighborhood Conservation, 13 Nat. Resources. & Env't. 319, 322 (1998) (explaining Maryland's "smart growth" policies and showing how past government policies contributed to sprawl). 102. For the classic analysis of why small groups with high stakes in a particular action may prevail over more broadly held preferences that in the aggregate exceed the small groups' interests, see Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
151. See, e.g., Holcombe, supra note 5, at 5 (arguing that government land-use planning is "more likely [to] hinder than help the development process"). But see John W. Frece & Andrea Leahy-Fucheck, Smart Growth and Neighborhood Conservation, 13 Nat. Resources. & Env't. 319, 322 (1998) (explaining Maryland's "smart growth" policies and showing how past government policies contributed to sprawl). 102. For the classic analysis of why small groups with high stakes in a particular action may prevail over more broadly held preferences that in the aggregate exceed the small groups' interests, see Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
152. See Keohane et al., supra note 92, at 328; Schroeder, supra note 92, at 55-56; An Unlevel Playing Field, supra note 23, at 11 (reporting on wealth creation in land adjacent to new highway development); Poughkeepsie '85, supra note 34, at 24-52 (recounting the extraordinary efforts of a mall developer to elect candidates to the local zoning board through secret campaign contributions).
153. See Keohane et al., supra note 92, at 328; Schroeder, supra note 92, at 55-56; An Unlevel Playing Field, supra note 23, at 11 (reporting on wealth creation in land adjacent to new highway development); Poughkeepsie '85, supra note 34, at 24-52 (recounting the extraordinary efforts of a mall developer to elect candidates to the local zoning board through secret campaign contributions).
154. See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing capture theories of regulation, but noting how industry "orientation" can result from non-corrupt modes of repeat interactions with regulators). Political science literature often observes the "privileged position of business" in political arenas. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 5, 172-88 (1977); see also Richard E. Foglesong, Planning the Capitalist City: The Colonial Era to the 1920s 233-34, 239-40 (1986) (analyzing city planning trends and influence of private forms of land ownership within a capitalist market); Peterson, supra note 4, at 131-49 (analyzing city politics and success of pro-growth policies); Clarence Stone, Regime Politics: Governing Atlanta, 1946-1988 (1989) (analyzing power of business interests and growth policies but also considering effect of particular local political environment).
155. See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing capture theories of regulation, but noting how industry "orientation" can result from non-corrupt modes of repeat interactions with regulators). Political science literature often observes the "privileged position of business" in political arenas. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 5, 172-88 (1977); see also Richard E. Foglesong, Planning the Capitalist City: The Colonial Era to the 1920s 233-34, 239-40 (1986) (analyzing city planning trends and influence of private forms of land ownership within a capitalist market); Peterson, supra note 4, at 131-49 (analyzing city politics and success of pro-growth policies); Clarence Stone, Regime Politics: Governing Atlanta, 1946-1988 (1989) (analyzing power of business interests and growth policies but also considering effect of particular local political environment).
156. See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing capture theories of regulation, but noting how industry "orientation" can result from non-corrupt modes of repeat interactions with regulators). Political science literature often observes the "privileged position of business" in political arenas. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 5, 172-88 (1977); see also Richard E. Foglesong, Planning the Capitalist City: The Colonial Era to the 1920s 233-34, 239-40 (1986) (analyzing city planning trends and influence of private forms of land ownership within a capitalist market); Peterson, supra note 4, at 131-49 (analyzing city politics and success of pro-growth policies); Clarence Stone, Regime Politics: Governing Atlanta, 1946-1988 (1989) (analyzing power of business interests and growth policies but also considering effect of particular local political environment).
157. See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing capture theories of regulation, but noting how industry "orientation" can result from non-corrupt modes of repeat interactions with regulators). Political science literature often observes the "privileged position of business" in political arenas. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 5, 172-88 (1977); see also Richard E. Foglesong, Planning the Capitalist City: The Colonial Era to the 1920s 233-34, 239-40 (1986) (analyzing city planning trends and influence of private forms of land ownership within a capitalist market); Peterson, supra note 4, at 131-49 (analyzing city politics and success of pro-growth policies); Clarence Stone, Regime Politics: Governing Atlanta, 1946-1988 (1989) (analyzing power of business interests and growth policies but also considering effect of particular local political environment).
158. See generally Jackson, supra note 16 (exploring the deeply rooted American preference for suburban living despite the many attendant harms and losses).
159. See Carol M. Rose, Environmental Lessons, 27 Loy. L.A. L. Rev. 1023, 1025-26 (1994) (discussing reasons citizens in ordinary times "have too few reasons even to notice commons problems" that are leading to environmental destruction and hence lack the "motivational spur" to act to prevent environmental harm). That citizens have incentives to remain inactive in ordinary times, however, does not mean that citizen power will never successfully be asserted to override periods of "ordinary politics" when more concentrated interests are likely to sway government policy. See Schroeder, supra note 92, at 30. While legal scholars analyzing environmental laws sometimes describe them as the result of political entrepreneurs, "republican moments" of heightened and more enlightened politics, or periods where critical masses of citizens rationally came to the conclusion that their participation and their interest in an environmental goal mattered, citizens have in numerous instances participated in political initiatives resulting in laws that are stringent and to the detriment of concentrated industry interests. See id. Even then, however, the forms or tools of regulation chosen are often those that are the least unfavorable to regulatory targets of means to a regulatory end of reduced environmental damage. See Keohane, supra note 92, at 346-62 (explaining frequent use of command and control strategies and stringent regulation of new pollution sources as the regulatory tools most palatable to existing industry, while also offering benefits to politicians).
160. For the classic discussion of "collective action" issues and their effects on political outcomes, see Olson, supra note 102.
161. See, e.g., Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. Legal Stud. 101, 102 (1987) (developing hypothesis that politicians are not "mere brokers" but are "independent actors making their own demand[s]"); see also Keohane, supra note 92, at 326, 357-62 (discussing diverse considerations of politicians in assessing policy options and separating interest group and citizen "demands" and "supply" incentives of legislators). Economics-oriented theories of government behavior predicts that agency officials will almost invariably seek new dollars and expansion of agency budgets and programmatic or regulatory turf. For the classic statement of this hypothesis, see William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). See also Saul Levmore, Irreversibility and the Law: The Size of Firms and Other Organizations, 18 J. Corp. L. 333, 334 (1993), cited in Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 Va. L. Rev. 1347, 1359 n.31 (1997). For a sampling of criticisms and refinements of the budget-maximization hypothesis, see Buzbee, supra note 53, at 82-96 (critiquing the budget maximization hypothesis by examining reasons the EPA and analogous agencies decline opportunities to expand); Ronald N. Johnson & Gary D. Libecap, Agency Growth, Salaries and the Protected Bureaucrat, 27 Econ. Inquiry 431, 448 (1989) (questioning hypothesized link between agency budget, turf growth, and agency official self-interest).
162. See, e.g., Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. Legal Stud. 101, 102 (1987) (developing hypothesis that politicians are not "mere brokers" but are "independent actors making their own demand[s]"); see also Keohane, supra note 92, at 326, 357-62 (discussing diverse considerations of politicians in assessing policy options and separating interest group and citizen "demands" and "supply" incentives of legislators). Economics-oriented theories of government behavior predicts that agency officials will almost invariably seek new dollars and expansion of agency budgets and programmatic or regulatory turf. For the classic statement of this hypothesis, see William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). See also Saul Levmore, Irreversibility and the Law: The Size of Firms and Other Organizations, 18 J. Corp. L. 333, 334 (1993), cited in Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 Va. L. Rev. 1347, 1359 n.31 (1997). For a sampling of criticisms and refinements of the budget-maximization hypothesis, see Buzbee, supra note 53, at 82-96 (critiquing the budget maximization hypothesis by examining reasons the EPA and analogous agencies decline opportunities to expand); Ronald N. Johnson & Gary D. Libecap, Agency Growth, Salaries and the Protected Bureaucrat, 27 Econ. Inquiry 431, 448 (1989) (questioning hypothesized link between agency budget, turf growth, and agency official self-interest).
163. See, e.g., Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. Legal Stud. 101, 102 (1987) (developing hypothesis that politicians are not "mere brokers" but are "independent actors making their own demand[s]"); see also Keohane, supra note 92, at 326, 357-62 (discussing diverse considerations of politicians in assessing policy options and separating interest group and citizen "demands" and "supply" incentives of legislators). Economics-oriented theories of government behavior predicts that agency officials will almost invariably seek new dollars and expansion of agency budgets and programmatic or regulatory turf. For the classic statement of this hypothesis, see William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). See also Saul Levmore, Irreversibility and the Law: The Size of Firms and Other Organizations, 18 J. Corp. L. 333, 334 (1993), cited in Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 Va. L. Rev. 1347, 1359 n.31 (1997). For a sampling of criticisms and refinements of the budget-maximization hypothesis, see Buzbee, supra note 53, at 82-96 (critiquing the budget maximization hypothesis by examining reasons the EPA and analogous agencies decline opportunities to expand); Ronald N. Johnson & Gary D. Libecap, Agency Growth, Salaries and the Protected Bureaucrat, 27 Econ. Inquiry 431, 448 (1989) (questioning hypothesized link between agency budget, turf growth, and agency official self-interest).
164. See, e.g., Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. Legal Stud. 101, 102 (1987) (developing hypothesis that politicians are not "mere brokers" but are "independent actors making their own demand[s]"); see also Keohane, supra note 92, at 326, 357-62 (discussing diverse considerations of politicians in assessing policy options and separating interest group and citizen "demands" and "supply" incentives of legislators). Economics-oriented theories of government behavior predicts that agency officials will almost invariably seek new dollars and expansion of agency budgets and programmatic or regulatory turf. For the classic statement of this hypothesis, see William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). See also Saul Levmore, Irreversibility and the Law: The Size of Firms and Other Organizations, 18 J. Corp. L. 333, 334 (1993), cited in Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 Va. L. Rev. 1347, 1359 n.31 (1997). For a sampling of criticisms and refinements of the budget-maximization hypothesis, see Buzbee, supra note 53, at 82-96 (critiquing the budget maximization hypothesis by examining reasons the EPA and analogous agencies decline opportunities to expand); Ronald N. Johnson & Gary D. Libecap, Agency Growth, Salaries and the Protected Bureaucrat, 27 Econ. Inquiry 431, 448 (1989) (questioning hypothesized link between agency budget, turf growth, and agency official self-interest).
165. See, e.g., Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. Legal Stud. 101, 102 (1987) (developing hypothesis that politicians are not "mere brokers" but are "independent actors making their own demand[s]"); see also Keohane, supra note 92, at 326, 357-62 (discussing diverse considerations of politicians in assessing policy options and separating interest group and citizen "demands" and "supply" incentives of legislators). Economics-oriented theories of government behavior predicts that agency officials will almost invariably seek new dollars and expansion of agency budgets and programmatic or regulatory turf. For the classic statement of this hypothesis, see William A. Niskanen, Jr., Bureaucracy and Representative Government (1971). See also Saul Levmore, Irreversibility and the Law: The Size of Firms and Other Organizations, 18 J. Corp. L. 333, 334 (1993), cited in Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 Va. L. Rev. 1347, 1359 n.31 (1997). For a sampling of criticisms and refinements of the budget-maximization hypothesis, see Buzbee, supra note 53, at 82-96 (critiquing the budget maximization hypothesis by examining reasons the EPA and analogous agencies decline opportunities to expand); Ronald N. Johnson & Gary D. Libecap, Agency Growth, Salaries and the Protected Bureaucrat, 27 Econ. Inquiry 431, 448 (1989) (questioning hypothesized link between agency budget, turf growth, and agency official self-interest).
166. See Been, supra note 113, at 506-28.
167. See Peterson, supra note 4, at 22-38.
168. See id. at 57-58, 60-63.
169. See Purdum, supra note 40 (reporting on patronage-driven subway development in Los Angeles); cf. Jackson, supra note 1616, at 21 (observing that real estate exploitation of impending government decisions enhancing value of land was evident as long ago as the 1795 acquisition of Beacon Street land due to inside knowledge of imminent plans to locate the State House nearby).
170. See generally Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Colum. L. Rev. 473 (1991) (discussing the tendency of local governments to seek new investment and business activity rather than to overrregulate).
171. Actually, the urban planning and economics literature often questions the
172. For articles exploring the political and economic dynamics leading to the enactment of often stringent and durable federal environmental laws, see Buzbee, supra note 4, at 27-46; E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313 (1985); Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59 (1992); Schroeder, supra note 92. See also Rose, supra note 106, at 1025 (stating that "people in practice sometimes do manage to cope with collective resources, so that the 'inexorable' logic of commons does not always play out so inexorably after all"). While most literature on politicians' incentives finds a pro-growth slant, anti-growth or proenvironment politicians can seize a political advantage and enhance their political prospects. See Elliot et al., supra, at 338. See generally Mark Schneider & Paul Teske, The Antigrowth Entrepreneur: Challenging the "Equilibrium" of the Growth Machine, 55 J. of Pol. 720 (1993) (acknowledging frequent strength of the "growth machine" view of local politics, but also reviewing case studies and theory to explain why anti- growth entrepreneurs can be politically successful despite excessively "deterministic" views of politics by other scholars); Mark Schneider & Paul Teske, Toward a Theory of the Political Entrepreneur: Evidence from Local Government, 86 Am. Pol. Sci. Rev. 737, 745 (1992) (surveying literature on political entrepreneurs and concluding that such studies are "ill served by the wholesale importation of economic theories of the private sector entrepreneur" and calling for "the definition of an expanded utility function for the entrepreneur"); see also supra Part IV (discussing environmental lessons for urban sprawl and reasons politicians might, at times, take an anti-growth position).
173. For articles exploring the political and economic dynamics leading to the enactment of often stringent and durable federal environmental laws, see Buzbee, supra note 4, at 27-46; E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313 (1985); Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59 (1992); Schroeder, supra note 92. See also Rose, supra note 106, at 1025 (stating that "people in practice sometimes do manage to cope with collective resources, so that the 'inexorable' logic of commons does not always play out so inexorably after all"). While most literature on politicians' incentives finds a pro-growth slant, anti-growth or proenvironment politicians can seize a political advantage and enhance their political prospects. See Elliot et al., supra, at 338. See generally Mark Schneider & Paul Teske, The Antigrowth Entrepreneur: Challenging the "Equilibrium" of the Growth Machine, 55 J. of Pol. 720 (1993) (acknowledging frequent strength of the "growth machine" view of local politics, but also reviewing case studies and theory to explain why anti- growth entrepreneurs can be politically successful despite excessively "deterministic" views of politics by other scholars); Mark Schneider & Paul Teske, Toward a Theory of the Political Entrepreneur: Evidence from Local Government, 86 Am. Pol. Sci. Rev. 737, 745 (1992) (surveying literature on political entrepreneurs and concluding that such studies are "ill served by the wholesale importation of economic theories of the private sector entrepreneur" and calling for "the definition of an expanded utility function for the entrepreneur"); see also supra Part IV (discussing environmental lessons for urban sprawl and reasons politicians might, at times, take an anti-growth position).
174. For articles exploring the political and economic dynamics leading to the enactment of often stringent and durable federal environmental laws, see Buzbee, supra note 4, at 27-46; E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313 (1985); Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59 (1992); Schroeder, supra note 92. See also Rose, supra note 106, at 1025 (stating that "people in practice sometimes do manage to cope with collective resources, so that the 'inexorable' logic of commons does not always play out so inexorably after all"). While most literature on politicians' incentives finds a pro-growth slant, anti-growth or proenvironment politicians can seize a political advantage and enhance their political prospects. See Elliot et al., supra, at 338. See generally Mark Schneider & Paul Teske, The Antigrowth Entrepreneur: Challenging the "Equilibrium" of the Growth Machine, 55 J. of Pol. 720 (1993) (acknowledging frequent strength of the "growth machine" view of local politics, but also reviewing case studies and theory to explain why anti-growth entrepreneurs can be politically successful despite excessively "deterministic" views of politics by other scholars); Mark Schneider & Paul Teske, Toward a Theory of the Political Entrepreneur: Evidence from Local Government, 86 Am. Pol. Sci. Rev. 737, 745 (1992) (surveying literature on political entrepreneurs and concluding that such studies are "ill served by the wholesale importation of economic theories of the private sector entrepreneur" and calling for "the definition of an expanded utility function for the entrepreneur"); see also supra Part IV (discussing environmental lessons for urban sprawl and reasons politicians might, at times, take an anti-growth position).
175. For articles exploring the political and economic dynamics leading to the enactment of often stringent and durable federal environmental laws, see Buzbee, supra note 4, at 27-46; E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313 (1985); Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59 (1992); Schroeder, supra note 92. See also Rose, supra note 106, at 1025 (stating that "people in practice sometimes do manage to cope with collective resources, so that the 'inexorable' logic of commons does not always play out so inexorably after all"). While most literature on politicians' incentives finds a pro-growth slant, anti-growth or proenvironment politicians can seize a political advantage and enhance their political prospects. See Elliot et al., supra, at 338. See generally Mark Schneider & Paul Teske, The Antigrowth Entrepreneur: Challenging the "Equilibrium" of the Growth Machine, 55 J. of Pol. 720 (1993) (acknowledging frequent strength of the "growth machine" view of local politics, but also reviewing case studies and theory to explain why anti- growth entrepreneurs can be politically successful despite excessively "deterministic" views of politics by other scholars); Mark Schneider & Paul Teske, Toward a Theory of the Political Entrepreneur: Evidence from Local Government, 86 Am. Pol. Sci. Rev. 737, 745 (1992) (surveying literature on political entrepreneurs and concluding that such studies are "ill served by the wholesale importation of economic theories of the private sector entrepreneur" and calling for "the definition of an expanded utility function for the entrepreneur"); see also supra Part IV (discussing environmental lessons for urban sprawl and reasons politicians might, at times, take an anti-growth position).
176. See Buzbee, supra note 4, at 17-38 (noting that groups with common interests are more likely to prevail politically); Olson, supra note 102 (same); Clarence N. Stone, Summing Up: Urban Regimes, Development Policy, and Political Arrangements, in The Politics of Urban Development 269-88 (Clarence N. Stone & Heywood T. Sanders, eds.) (summarizing empirical studies presented in the book as showing that pursuit of growth remains a powerful force in urban politics, but that the particulars of local political history and climate influence the strength of that motivation and battles over what measures should be embraced to further growth). Nevertheless, as further explored below in Part IV, environmental laws that are both stringent and durable have been a prominent part of the legal landscape since the late 1960s. A combination of active citizens, political entrepreneurs and active and knowledgeable not-for-profit environmental and citizen groups can at times act together and succeed despite general predictions about collective action problems and interest group behavior. See infra Part IV; see also Rose, supra note 106, at 1025; Schroeder, supra note 92, at 43-56 (discussing the history of early federal environmental laws under a modified "rational choice" account).
177. See supra notes 26-28 and accompanying text.
178. For a discussion of "externalities," defined as costs associated with activities that are not borne by the person creating those costs, see Peter S. Menell & Richard B. Stewart, Environmental Law and Policy 54-60 (1994). Many local governments have begun to use exaction strategies to require entities requiring discretionary permits to pay for some of the costs of their proposed development, see Alan Altshuler et al., Regulation for Revenue: The Political Economy of Land Use Exactions 114-21 (1993), but it is doubtful such exaction could possibly pay for all governmental costs associated with new development.
179. For a discussion of "externalities," defined as costs associated with activities that are not borne by the person creating those costs, see Peter S. Menell & Richard B. Stewart, Environmental Law and Policy 54-60 (1994). Many local governments have begun to use exaction strategies to require entities requiring discretionary permits to pay for some of the costs of their proposed development, see Alan Altshuler et al., Regulation for Revenue: The Political Economy of Land Use Exactions 114-21 (1993), but it is doubtful such exaction could possibly pay for all governmental costs associated with new development.
180. For a discussion of the rationale for "commuter taxes" in the context of an analysis of tax policies and population shifts in the Washington D.C. area, see Robert P. Strauss, The Income of Central City and Suburban Immigrants: A Case Study of the Washington D.C. Metropolitan Area, 51 Nat'l Tax J. 493, 516 (Sept. 1, 1998), 1998 WL 25355913, at *1. See generally Wahrman, supra note 60 (advocating the use of "peak pricing" tolls to modify commuting patterns and harms flowing from traffic congestion). For a discussion of how a "Pigouvian" tax is a tax that seeks to correct an otherwise external cost by forcing the harming actor to in effect pay for the harms he causes, see Arthur Cecil Pigou, The Economics of Welfare (1920). As observed in the recent critique of choices of regulatory instruments in environmental laws, Pigouvian taxes are the preferred choice of economists to deal with pollution or other environmental harms. See Keohane et al., supra note 92, at 314 & n.2. Whether Pigou's contribution has been correctly characterized is doubtful, but the concept of a Pigouvian tax is now well established. See James E. Krier, The Tragedy of the Commons, Part Two, 15 Harv. J.L. & Pub. Pol'y 325, 325-26 & n.3 (1992) (observing that Pigou focused on subsidizing pollution control activities rather than taxing). Setting an appropriate tax, let alone finding political support for such a tax disincentive scheme, is fraught with difficulty. See Keohane et al., supra note 92, at 349 & n. 108 (exploring why firms that are already regulated prefer almost any regime of harm regulation over pollution taxes); Krier, supra, at 325-26 (pointing out overwhelming barriers to constructing a market-oriented environment protection regime).
181. For a discussion of the rationale for "commuter taxes" in the context of an analysis of tax policies and population shifts in the Washington D.C. area, see Robert P. Strauss, The Income of Central City and Suburban Immigrants: A Case Study of the Washington D.C. Metropolitan Area, 51 Nat'l Tax J. 493, 516 (Sept. 1, 1998), 1998 WL 25355913, at *1. See generally Wahrman, supra note 60 (advocating the use of "peak pricing" tolls to modify commuting patterns and harms flowing from traffic congestion). For a discussion of how a "Pigouvian" tax is a tax that seeks to correct an otherwise external cost by forcing the harming actor to in effect pay for the harms he causes, see Arthur Cecil Pigou, The Economics of Welfare (1920). As observed in the recent critique of choices of regulatory instruments in environmental laws, Pigouvian taxes are the preferred choice of economists to deal with pollution or other environmental harms. See Keohane et al., supra note 92, at 314 & n.2. Whether Pigou's contribution has been correctly characterized is doubtful, but the concept of a Pigouvian tax is now well established. See James E. Krier, The Tragedy of the Commons, Part Two, 15 Harv. J.L. & Pub. Pol'y 325, 325-26 & n.3 (1992) (observing that Pigou focused on subsidizing pollution control activities rather than taxing). Setting an appropriate tax, let alone finding political support for such a tax disincentive scheme, is fraught with difficulty. See Keohane et al., supra note 92, at 349 & n. 108 (exploring why firms that are already regulated prefer almost any regime of harm regulation over pollution taxes); Krier, supra, at 325-26 (pointing out overwhelming barriers to constructing a market-oriented environment protection regime).
182. See generally Briffault, Local Government, supra note 9; Frug, supra note 9. Analyses of the fiscal effects of sprawl sometimes neglect to acknowledge the significance of separate budgetary "ledgers" of local, state and federal governments, as well as further separate budgetary concerns of departments and agencies acting under local, state or federal authority. See, e.g., Burchell, supra note 14, at 165-70 (making a powerful case for aggregate fiscal waste associated with sprawl, but failing to break down budgetary and fiscal incentives of various units of government in connection with sprawl-related policies).
183. For a superb discussion of these classic works, see Rose, supra note 106, at 1024 (discussing commons overuse issues and citing Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243 (1968)); see also Briffault, Local Government, supra note 9, at 1149 (observing that local governments' parochial pursuit of self interest can lead to a tragedy of the "regional 'commons'"); Wahrman, supra note 60, at 183 (observing how traffic congestion in part results from "tragedy of the commons" dynamics).
184. For a superb discussion of these classic works, see Rose, supra note 106, at 1024 (discussing commons overuse issues and citing Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243 (1968)); see also Briffault, Local Government, supra note 9, at 1149 (observing that local governments' parochial pursuit of self interest can lead to a tragedy of the "regional 'commons'"); Wahrman, supra note 60, at 183 (observing how traffic congestion in part results from "tragedy of the commons" dynamics).
185. See Ruhl, supra note 11, at 658 & nn.314, 315 (discussing the "tragedy of the commons" in analyzing strategies to protect biodiversity); see also Karkkainen, supra note 11, at 74-75 (applying the common resource overdepletion theory to conclude that local governments are unlikely to protect important sources of biodiversity because they are better off externalizing the costs by leaving the costs of conservation to others).
186. For a more complete discussion of the benefits of sprawl, see supra Part I.A.
187. Critics of anti-sprawl reforms sometimes describe the current sprawling forms as though they are the result of some pre-legal set of market choices. See, e.g., Tierney, supra note 1 (discussing the benefits of urban sprawl when it is the result of local choice and initiative, not official government intervention). While market and social preferences are undoubtedly part of the sprawl equation and must be considered, see supra Part I.A., such preferences and development patterns are undoubtedly influenced by past government actions and legal frameworks. For example, whether the common law, statutes, and regulations recognize or deny a right to compensation for private activities imposing harms or cost on others is itself the result of legal and political choice, not some pre-legal allocation of natural rights. Similarly, whether citizens or businesses should pay for benefits conferred through government investments or acts is the result of existing political and legal frameworks. See, e.g., Altshuler et al., supra note 118, at 115-20 (exploring political and economic roots of increased reliance by local governments on exactions to raise revenue); Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev. 1433, 1442-51 (discussing the dynamic nature of what property rights are recognized by law and give rise to rights to compensation or obligations to pay for harms).
188. See Been, supra note 113, at 513-14; Vincent Ostrom et al., The Organization of Government in Metropolitan Areas: A Theoretical Inquiry, in Perspectives on Urban Politics 98, 113-17 (Jay S. Goodman ed., 1970).
189. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
190. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
191. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
192. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
193. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
194. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
195. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
196. See Briffault, Local Government, supra note 9, at 1133-41; Peterson, supra note 4, at 20-22. For a critique of development dynamics and interjurisdictional competition for business, and laws or judicial opinions addressing such dynamics, compare Been, supra note 113, at 478 (finding that "the market for development suffers many functions, but nevertheless may be sufficiently competitive to constrain local governments' exaction practices"), with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233 (1992) (stating there is no support for the claim that "without federal intervention, there will be a race to the bottom over environmental standards") [hereinafter Revesz, Rethinking]. For a sampling of the criticisms of the theoretical, empirical, and normative observations and implications of Revesz's influential article, see Buzbee, supra note 53, at 110-16 (discussing reasons why states might underprotect the environment); Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and is it "To the Bottom"?, 48 Hastings L.J. 271, 315-51 (1997) (challenging Revesz's conclusion with data indicating frequent state laxity); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 652-53 (1996) (concluding that the appropriate level of government intervention will vary based on the situation); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67, 91-94 (Symposium Issue 1996) (analyzing reasons why states might frequently underprotect the environment). For a response to some of those criticisms, see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 545-63 (1997) [hereinafter Revesz, A Response]. For a discussion of local government taxing and spending authority, see Perry Sentell, A Profile: The Theory and Practice of Local Government Law (1994) and R. Perry Sentell, Jr., The County Spending Power: An Abbreviated Audit of the Account, 16 Ga. L. Rev. 599 (1982) (describing county spending power under Georgia Law).
197. See Been, supra note 113, at 512-14 (citing articles discussing interjurisdictional competitions for business).
198. See Buzbee, supra note 53, at 114-15 (exploring similar government incentives to attract businesses through lax environmental policies due to delayed nature of any attendant harms and difficulty of monitoring such laxity); see also Swire, supra note 126, at 87-90 (exploring how, due to "measurement problems" in assessing benefits and costs of environmental regulation, environmental policy is likely to be "skewed" to the benefit of regulatory targets).
199. See supra note 29 and accompanying text.
200. See infra Part IV.
201. See infra Part IV (discussing reasons why anti-sprawl coalitions may form despite general political-economic dynamics and associated predictions).
202. See infra Part IV.
203. See Olson, supra note 102, at 2; see also Robert Axelrod, The Evolution of Cooperation 124-29 (1984) (developing and analyzing implications of "tit for tat" model of evolution of cooperative behavior and exploring how repeat interactions are essential for cooperative behavior to emerge). Axelrod demonstrates that repeat relationships can promote beneficial cooperation but also notes, as does this Article, that in some circumstances the cooperation that will likely flow from repeat interactions may be the opposite of the desired result. See id. at 125.
204. See Krier, supra note 119, at 331 (discussing "comparative organizational or lobbying advantage" of industry groups in battles over environmental quality); Glen O. Robinson, The FCC: An Essay on Regulatory Watchdogs, 64 Va. L. Rev. 169, 216-19 (1978) (discussing problem of agency's "uncritical reliance" on regulated industries for information and analysis); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1213-14 (1997) (discussing reasons agency officials can adopt policies favorable to regulated interests due to frequency of contacts).
205. See Krier, supra note 119, at 331 (discussing "comparative organizational or lobbying advantage" of industry groups in battles over environmental quality); Glen O. Robinson, The FCC: An Essay on Regulatory Watchdogs, 64 Va. L. Rev. 169, 216- 19 (1978) (discussing problem of agency's "uncritical reliance" on regulated industries for information and analysis); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1213-14 (1997) (discussing reasons agency officials can adopt policies favorable to regulated interests due to frequency of contacts).
206. For sources regarding pro-environment and anti-growth political entrepreneurs, see supra note 115.
207. See Briffault, Local Government, supra note 9, at 1133-41 for a discussion of different incentives of central city and more suburban or exurban jurisdictions. For a discussion of the implications of the common lack of regional forms of governance in the United States, see infra Parts III.A.2 & .3.
208. See Farber, supra note 115, at 71 (developing a theory to explain the successes of environmental laws despite concentrated opposition interests, and suggesting that environmental groups serve an informational role and that due to their "incentives as . . . 'repeat player[s]' to maintain [their] reputation for reliability" prompts such information to be "relatively unbiased"). See generally George J. Stigler, The Economics of Information, 69 J. Pol. Econ. 213 (1961) (exploring how reality of costliness of information must be considered in economic models).
209. See Axelrod, supra note 133, at 125; Farber, supra note 115, at 66.
210. See Farber, supra note 115, at 71.
211. See infra notes 335-39 and accompanying text.
212. In their critiques of several environmental "reinvention" and "reform" initiatives, Professors Steinzor and Mank explore why decentralized and largely discretionary decisionmaking is likely to lead to less effective or minimal participation by well funded and expert environmental not-for-profit entities, contrasted with such groups' effective participation at the national level. See Bradford C. Mank, The Environmental Protection Agency's Project XL and Other Regulatory Reform Initiatives: The Need for Legislative Authorization, 25 Ecology L.Q. 1, 60-61 (1998); Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous Journey from Command to Self-Control, 22 Harv. Envtl. L. Rev. 103, 144-45 (1998).
213. In their critiques of several environmental "reinvention" and "reform" initiatives, Professors Steinzor and Mank explore why decentralized and largely discretionary decisionmaking is likely to lead to less effective or minimal participation by well funded and expert environmental not-for-profit entities, contrasted with such groups' effective participation at the national level. See Bradford C. Mank, The Environmental Protection Agency's Project XL and Other Regulatory Reform Initiatives: The Need for Legislative Authorization, 25 Ecology L.Q. 1, 60-61 (1998); Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous Journey from Command to Self-Control, 22 Harv. Envtl. L. Rev. 103, 144-45 (1998).
214. For a discussion of how the link between legislative seniority and control of key committees and the legislative agenda is well established, particularly in the federal legislature, see Barbara Hinckley, The Seniority System in Congress (1971) (detailing the history and continued presence of the seniority system in choosing subcommittee leaders); David R. Mayhew, Congress: The Electoral Connection 94-97 (1974) (stating that as seniority increases in Congress so too does a representative's "turf"); Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am. Pol. Sci. Rev. 85, 87 (1987) (stating that committee power "consisting of gatekeeping, information advantage, and proposal power" establishes committees as agenda setters); see also Glenn R. Parker, Congress and the Rent- Seeking Society 143 (1996) (explaining that even with the implementation of new rules for electing committee chairs, seniority remains the overwhelming factor). Reduced reliance on seniority in choosing committee leaders and the proliferation of subcommittees in the U.S. Congress has reduced the clout once wielded by a handful of key senior legislators. Seniority, however, remains an important factor in choosing legislative leadership. See Christopher J. Deering & Steven S. Smith, Committees in Congress 126-44 (1997); McChesney, supra note 108, at 104-06.
215. For a discussion of how the link between legislative seniority and control of key committees and the legislative agenda is well established, particularly in the federal legislature, see Barbara Hinckley, The Seniority System in Congress (1971) (detailing the history and continued presence of the seniority system in choosing subcommittee leaders); David R. Mayhew, Congress: The Electoral Connection 94-97 (1974) (stating that as seniority increases in Congress so too does a representative's "turf"); Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am. Pol. Sci. Rev. 85, 87 (1987) (stating that committee power "consisting of gatekeeping, information advantage, and proposal power" establishes committees as agenda setters); see also Glenn R. Parker, Congress and the Rent- Seeking Society 143 (1996) (explaining that even with the implementation of new rules for electing committee chairs, seniority remains the overwhelming factor). Reduced reliance on seniority in choosing committee leaders and the proliferation of subcommittees in the U.S. Congress has reduced the clout once wielded by a handful of key senior legislators. Seniority, however, remains an important factor in choosing legislative leadership. See Christopher J. Deering & Steven S. Smith, Committees in Congress 126-44 (1997); McChesney, supra note 108, at 104-06.
216. For a discussion of how the link between legislative seniority and control of key committees and the legislative agenda is well established, particularly in the federal legislature, see Barbara Hinckley, The Seniority System in Congress (1971) (detailing the history and continued presence of the seniority system in choosing subcommittee leaders); David R. Mayhew, Congress: The Electoral Connection 94-97 (1974) (stating that as seniority increases in Congress so too does a representative's "turf"); Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am. Pol. Sci. Rev. 85, 87 (1987) (stating that committee power "consisting of gatekeeping, information advantage, and proposal power" establishes committees as agenda setters); see also Glenn R. Parker, Congress and the Rent-Seeking Society 143 (1996) (explaining that even with the implementation of new rules for electing committee chairs, seniority remains the overwhelming factor). Reduced reliance on seniority in choosing committee leaders and the proliferation of subcommittees in the U.S. Congress has reduced the clout once wielded by a handful of key senior legislators. Seniority, however, remains an important factor in choosing legislative leadership. See Christopher J. Deering & Steven S. Smith, Committees in Congress 126-44 (1997); McChesney, supra note 108, at 104-06.
217. For a discussion of how the link between legislative seniority and control of key committees and the legislative agenda is well established, particularly in the federal legislature, see Barbara Hinckley, The Seniority System in Congress (1971) (detailing the history and continued presence of the seniority system in choosing subcommittee leaders); David R. Mayhew, Congress: The Electoral Connection 94-97 (1974) (stating that as seniority increases in Congress so too does a representative's "turf"); Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am. Pol. Sci. Rev. 85, 87 (1987) (stating that committee power "consisting of gatekeeping, information advantage, and proposal power" establishes committees as agenda setters); see also Glenn R. Parker, Congress and the Rent- Seeking Society 143 (1996) (explaining that even with the implementation of new rules for electing committee chairs, seniority remains the overwhelming factor). Reduced reliance on seniority in choosing committee leaders and the proliferation of subcommittees in the U.S. Congress has reduced the clout once wielded by a handful of key senior legislators. Seniority, however, remains an important factor in choosing legislative leadership. See Christopher J. Deering & Steven S. Smith, Committees in Congress 126-44 (1997); McChesney, supra note 108, at 104-06.
218. See infra Part IV.D.
219. See Peterson, supra note 4, at ch. 4. See generally David L. Shapiro, Federalism: A Dialogue (1995) (exploring divergent approaches to the role of federalism in the functions of government); Alfred R. Light, He Who Pays the Piper Should Call the Tune: Dual Sovereignty in U.S. Environmental Law, 4 Envtl. Law. 779 (1998) (discussing the existence of a dual system of government and the relation between state and federal governments).
220. See Peterson, supra note 4, at ch. 4. See generally David L. Shapiro, Federalism: A Dialogue (1995) (exploring divergent approaches to the role of federalism in the functions of government); Alfred R. Light, He Who Pays the Piper Should Call the Tune: Dual Sovereignty in U.S. Environmental Law, 4 Envtl. Law. 779 (1998) (discussing the existence of a dual system of government and the relation between state and federal governments).
221. This tiered analysis of regulatory goals, institutional options, and regulatory tools must occur in any effort to attack a social ill, be it predominantly a local, state, federal, or global issue. See Wiener, supra note 11, at 686-701 (applying comparative institutional frameworks and political-economic literature to suggest regulatory strategies most likely to succeed in addressing global environmental ills). As Wiener notes, much of the existing political-economic literature assumes that a single, coercive, and effective government body is available to enforce a regulatory scheme. As he demonstrates, this assumption of what he calls "Unitary Fiat" is inappropriate at the level of global ills. Id. at 701-04. This assumption is seldom appropriate even in analyzing domestic environmental or urban sprawl policies in the context of a federalist scheme of government that grants and retains different spheres of authority for local, state, and federal governments. See Susan Rose-Ackerman, Does Federalism Matter? Political Choice in a Federal Republic, 89 J. of Pol. Econ. 152, 154-57 (1981). The array of appropriate regulatory designs and tools will necessarily differ in different contexts. See id. at 162 (stating that "[e]ven when the central government has the power to preempt state and local laws, its democratic choices will depend upon the strategic position of citizens living under alternative state legal regimes"); see also Buzbee, supra note 4, at 27-58 (examining the dynamics of environmental federalism to develop hypothesis that most effective allocation of authority among federal, state, and local governments shifts over time depending on context and cannot be predicted by an approach that assumes deterministic character traits of government institutions); Wiener, supra note 11, at 681 (stating that the "economics of instrument choice are embedded in and contingent on the underlying legal system").
222. See Daniel R. Mandelker, Land Use Law 1-2 (3d ed. 1993) (noting that all states authorize local governments to use comprehensive planning as a guide for land use controls); Tarlock, supra note 11, at 557 (explaining that land use has almost exclusively been dealt with by local governments).
223. For arguments that state and local governments will better tailor their policies to constituent desires and needs than would a federal regulator, see Revesz, A Response, supra note 126, at 536-45. See also Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 Yale L. & Pol'y Rev. 23, 25 (Symposium Issue 1996) (arguing that "the size of the geographic area affected by a specific pollution source should determine the appropriate governmental level for responding to the pollution"). Revesz explicitly acknowledges that his critique does not fully address different government dysfunctions that might be predicted by public choice scholarship. See Revesz, Rethinking, supra note 126, at 1223, 1243. The thesis of Butler and Macey is strangely imbalanced because it expresses concerns about interest group dominance and regulatory failure in Washington, but fails to consider different interest group and political- economic incentives and sources of potential regulatory failure if regulatory policies were shifted to state and local government venues. See Butler & Macey, supra, at 28, 44-45, 53. Butler and Macey critique federal regulation and its anticipated dysfunctions, but fail to look at state and local fora with a similarly skeptical eye. See Geoffrey Moulton, The Quixotic Search for a Judicially Enforceable Federalism, 83 Minn. L. Rev. 849, 918-19 (1999) (observing that advocates of more intrusive judicial review to protect states fail to examine interest group pressures at state and local levels).
224. For arguments that state and local governments will better tailor their policies to constituent desires and needs than would a federal regulator, see Revesz, A Response, supra note 126, at 536-45. See also Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 Yale L. & Pol'y Rev. 23, 25 (Symposium Issue 1996) (arguing that "the size of the geographic area affected by a specific pollution source should determine the appropriate governmental level for responding to the pollution"). Revesz explicitly acknowledges that his critique does not fully address different government dysfunctions that might be predicted by public choice scholarship. See Revesz, Rethinking, supra note 126, at 1223, 1243. The thesis of Butler and Macey is strangely imbalanced because it expresses concerns about interest group dominance and regulatory failure in Washington, but fails to consider different interest group and political-economic incentives and sources of potential regulatory failure if regulatory policies were shifted to state and local government venues. See Butler & Macey, supra, at 28, 44-45, 53. Butler and Macey critique federal regulation and its anticipated dysfunctions, but fail to look at state and local fora with a similarly skeptical eye. See Geoffrey Moulton, The Quixotic Search for a Judicially Enforceable Federalism, 83 Minn. L. Rev. 849, 918-19 (1999) (observing that advocates of more intrusive judicial review to protect states fail to examine interest group pressures at state and local levels).
225. For arguments that state and local governments will better tailor their policies to constituent desires and needs than would a federal regulator, see Revesz, A Response, supra note 126, at 536-45. See also Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 Yale L. & Pol'y Rev. 23, 25 (Symposium Issue 1996) (arguing that "the size of the geographic area affected by a specific pollution source should determine the appropriate governmental level for responding to the pollution"). Revesz explicitly acknowledges that his critique does not fully address different government dysfunctions that might be predicted by public choice scholarship. See Revesz, Rethinking, supra note 126, at 1223, 1243. The thesis of Butler and Macey is strangely imbalanced because it expresses concerns about interest group dominance and regulatory failure in Washington, but fails to consider different interest group and political- economic incentives and sources of potential regulatory failure if regulatory policies were shifted to state and local government venues. See Butler & Macey, supra, at 28, 44-45, 53. Butler and Macey critique federal regulation and its anticipated dysfunctions, but fail to look at state and local fora with a similarly skeptical eye. See Geoffrey Moulton, The Quixotic Search for a Judicially Enforceable Federalism, 83 Minn. L. Rev. 849, 918-19 (1999) (observing that advocates of more intrusive judicial review to protect states fail to examine interest group pressures at state and local levels).
226. See, e.g., Leonard, supra note 84, at xi (describing Oregon's commitment to sprawl control and growth boundaries); Peterson, supra note 4, at 20 (analyzing reasons why local governments tend to pursue pro-growth policies); Revesz, Rethinking, supra note 126, at 1228-29 (discussing how more stringent state environmental regula-tions have increased costs for intrastate industries); Steven Hayward, The Scourge of New Jobs, N.Y. Times, June 12, 1999, at A15 (discussing Portland, Oregon's decision to allow expansion of Intel Corporation's computer chip facility and the city's requirement that Intel pay a "growth impact fee" if Intel creates too many jobs); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Jobs, N.Y. Times, June 9, 1999, at A18 (reporting on Portland's decision concerning Intel and discussing politicians' and citizens' concerns that too much growth at Intel would contribute to sprawl and impair the area's quality of life). But see Buzbee, supra note 4, at 29-36, 46-58 (acknowledging some instances of state leadership in environmental regulation, but showing how federal legislators or regulators have generally been "the first mover[s]" and that states have often acted to displace a federal regulator rather than innovate or exceed federal standards).
227. See, e.g., Leonard, supra note 84, at xi (describing Oregon's commitment to sprawl control and growth boundaries); Peterson, supra note 4, at 20 (analyzing reasons why local governments tend to pursue pro-growth policies); Revesz, Rethinking, supra note 126, at 1228-29 (discussing how more stringent state environmental regula- tions have increased costs for intrastate industries); Steven Hayward, The Scourge of New Jobs, N.Y. Times, June 12, 1999, at A15 (discussing Portland, Oregon's decision to allow expansion of Intel Corporation's computer chip facility and the city's requirement that Intel pay a "growth impact fee" if Intel creates too many jobs); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Jobs, N.Y. Times, June 9, 1999, at A18 (reporting on Portland's decision concerning Intel and discussing politicians' and citizens' concerns that too much growth at Intel would contribute to sprawl and impair the area's quality of life). But see Buzbee, supra note 4, at 29-36, 46-58 (acknowledging some instances of state leadership in environmental regulation, but showing how federal legislators or regulators have generally been "the first mover[s]" and that states have often acted to displace a federal regulator rather than innovate or exceed federal standards).
228. See, e.g., Leonard, supra note 84, at xi (describing Oregon's commitment to sprawl control and growth boundaries); Peterson, supra note 4, at 20 (analyzing reasons why local governments tend to pursue pro-growth policies); Revesz, Rethinking, supra note 126, at 1228-29 (discussing how more stringent state environmental regula- tions have increased costs for intrastate industries); Steven Hayward, The Scourge of New Jobs, N.Y. Times, June 12, 1999, at A15 (discussing Portland, Oregon's decision to allow expansion of Intel Corporation's computer chip facility and the city's requirement that Intel pay a "growth impact fee" if Intel creates too many jobs); Sam Howe Verhovek, Fighting Sprawl, Oregon County Makes Deal With Intel to Limit Jobs, N.Y. Times, June 9, 1999, at A18 (reporting on Portland's decision concerning Intel and discussing politicians' and citizens' concerns that too much growth at Intel would contribute to sprawl and impair the area's quality of life). But see Buzbee, supra note 4, at 29-36, 46-58 (acknowledging some instances of state leadership in environmental regulation, but showing how federal legislators or regulators have generally been "the first mover[s]" and that states have often acted to displace a federal regulator rather than innovate or exceed federal standards).
229. See Clean Air Act, 42 U.S.C. § 7410 (1994) (State Implementation Plan provisions); TEA-21, Pub L. No. 105-178, § 1203, 112 Stat. 107, 170-79 (1998) (setting forth requirements for metropolitan transportation planning process); id. § 1204, 112 Stat. at 180-84 (setting forth requirement for statewide transportation planning).
230. See Buzbee, supra note 4, at 52-54.
231. See John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 Md. L. Rev. 1183, 1217-18, 1223-25 (1995); Stewart, supra note 134, at 1202.
232. For a recent work applying comparative institutional analysis frameworks, see Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (1994). For an essay reviewing Komesar, and further developing a framework for assessing relative competence of various institutions in different contexts, see Edward L. Rubin, Institutional Analysis and the New Legal Process, 1995 Wis. L. Rev. 463.
233. For a recent work applying comparative institutional analysis frameworks, see Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (1994). For an essay reviewing Komesar, and further developing a framework for assessing relative competence of various institutions in different contexts, see Edward L. Rubin, Institutional Analysis and the New Legal Process, 1995 Wis. L. Rev. 463.
234. See Briffault, Local Government, supra note 9, at 1117 (referring to New York City's 1898 consolidation but also stating its goals were "undone" by the further expansion of the city); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775, 775-76, 780-82 (1992) (discussing New York's 1898 consolidation and proposed secession of Staten Island).
235. See Briffault, Local Government, supra note 9, at 1117 (referring to New York City's 1898 consolidation but also stating its goals were "undone" by the further expansion of the city); Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 Colum. L. Rev. 775, 775-76, 780-82 (1992) (discussing New York's 1898 consolidation and proposed secession of Staten Island).
236. Instead, approximately ten counties include at least portions of what is commonly described as the Atlanta metropolitan area. Furthermore, county governments wield substantial clout and independent authority. See R. Perry Sentell, Jr., Georgia Local Government Law: A Reflection on Thirty Surveys, 46 Mercer L. Rev. 1, 24-25 (1994).
237. See generally Myron Orfield, Atlanta Metropolitics: A Regional Agenda for Community and Stability (1998) (analyzing the urban sprawl effect in the Atlanta metropolitan area).
238. Local governments have incentives to free ride on the anticipated or desired actions of others. As anticipated in the literature on free riding, the result may be that no one takes the lead in addressing the sprawl harms that all feel. See supra Part II (discussing free riding and political dynamics leading to exacerbation of sprawl's harms).
239. Urban policy critic William Whyte noted this tension between urban governments and exurban or suburban counties 40 years ago. See William H. Whyte, Jr., Introduction to The Exploding Metropolis, supra note 2, at 13 (discussing "anti-city bias of the rural counties" throughout the United States); see also Briffault, Local Government, supra note 9, at 1133-41 (discussing consequences of locally bounded regulation).
240. Urban policy critic William Whyte noted this tension between urban governments and exurban or suburban counties 40 years ago. See William H. Whyte, Jr., Introduction to The Exploding Metropolis, supra note 2, at 13 (discussing "anti-city bias of the rural counties" throughout the United States); see also Briffault, Local Government, supra note 9, at 1133-41 (discussing consequences of locally bounded regulation).
241. See Robert H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 Urb. Law. 183, 195-98 (1997).
242. See Briffault, Local Government, supra note 9, at 1117-18.
243. See, e.g., Terry L. Anderson & Donald R. Leal, Free Market Environmentalism 6-7, 11, 16 (1991) (asserting the budgetary and turf expansion hypothesis). For a critique of this hypothesis and literature, see Buzbee, supra note 53, at 83-90; Whyte, supra note 157, at 14 ("It is sheer escapism, however, for people to address their energies to a scheme that calls for counties and suburbs to help vote themselves out of existence.").
244. See Briffault, Local Government, supra note 9, at 1167-69.
245. The Georgia Department of Transportation ("DOT"), for example, is an agency with a culture and history aimed at new highway construction and little interest in transit alternatives. See Goldberg, supra note 67, at 15. Without a constitutional amendment, DOT could not use gas tax dollars on projects other than roads and bridges. See id. Recent legislation bypasses Georgia's DOT to establish a new regional commission, the Georgia Regional Transportation Authority, that will wield substantial oversight authority over any transportation-related project in the Atlanta metropolitan area. See Ga. Reg'l Transp. Auth. Act, ch. 32, 1999 Ga. Laws 38; David Firestone, Georgia Setting Up Tough Anti-Sprawl Agency, N.Y. Times, Mar. 25, 1999, at A20.
246. For a general discussion of the uses of authorities, including judicial and scholarly assessments of authorities, see Comment, An Analysis of Authorities: Traditional and Multicounty, 71 Mich. L. Rev. 1376, 1377-78, 1418-20, 1422-25 (1973), reprinted in Clayton P. Gillette, Local Government Law 670-83 (1994).
247. For a general discussion of the uses of authorities, including judicial and scholarly assessments of authorities, see Comment, An Analysis of Authorities: Traditional and Multicounty, 71 Mich. L. Rev. 1376, 1377-78, 1418-20, 1422-25 (1973), reprinted in Clayton P. Gillette, Local Government Law 670-83 (1994).
248. Yet another type of quasi-governmental institution that can influence urban form and vitality are business improvement districts, often referred to as "BIDs." See Richard Briffault, A Government For Our Time? Business Improvement Districts and Urban Governance, 99 Colum. L. Rev. 365, 366 (1999) [hereinafter Briffault, Business Improvement Districts]. BIDs share features with special districts, but unlike special districts, BIDs undertake little infrastructure work and are funded through different devices. See id. at 417-20. BIDs are not an answer to the need for regional forms of government due to their generally sublocal focus, but BIDs have the potential to assist with efforts to revitalize urban centers and compete with suburban malls that often draw shoppers away from urban centers. See id. at 365-71, 425-29. Like other types of quasi-governmental authorities, BIDs are only indirectly subject to democratic control. See id. at 430-61. For additional analysis of BIDs and other sublocal entities that assume traditional government functions, see generally Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 Minn. L. Rev. 503, (1997) [hereinafter Briffault, Sublocal].
249. Yet another type of quasi-governmental institution that can influence urban form and vitality are business improvement districts, often referred to as "BIDs." See Richard Briffault, A Government For Our Time? Business Improvement Districts and Urban Governance, 99 Colum. L. Rev. 365, 366 (1999) [hereinafter Briffault, Business Improvement Districts]. BIDs share features with special districts, but unlike special districts, BIDs undertake little infrastructure work and are funded through different devices. See id. at 417-20. BIDs are not an answer to the need for regional forms of government due to their generally sublocal focus, but BIDs have the potential to assist with efforts to revitalize urban centers and compete with suburban malls that often draw shoppers away from urban centers. See id. at 365-71, 425-29. Like other types of quasi-governmental authorities, BIDs are only indirectly subject to democratic control. See id. at 430-61. For additional analysis of BIDs and other sublocal entities that assume traditional government functions, see generally Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 Minn. L. Rev. 503, (1997) [hereinafter Briffault, Sublocal].
250. In Atlanta, for example, the Atlanta Regional Commission ("ARC") has been authorized for many years to address regional transportation problems, but jurisdictional conflict between DOT and ARC and weak ARC authority have led to ARC having little impact. A regional transportation authority created by 1999 legislation will now oversee metropolitan Atlanta transportation decisions. See supra note 162.
251. See Donald Axelrod, Shadow Government: The Hidden World of Public Authorities - And How They Control Over $1 Trillion of Your Money 15-20, 35-62 (1992); Briffault, Business Improvement Districts, supra note 164, at 389-94, 414-20; Briffault, Sublocal, supra note 164, at 525. Former New York Governor Mario Cuomo characterized authorities as having the "big advantage: free from the control the people have; the big disadvantage: free from the control the people have." Axelrod, supra, at viii; see also Robert G. Smith, The Changing Role of Funding in Authority Policy Implementation, in Public Authorities and Public Policy: The Business of Government 83-95 (Jerry Mitchell ed., 1992) (describing self-financing strategies for authorities and particular authority projects and their financing). Georgia's new Regional Transportation Authority consists of members appointed by the governor. See Ga. Reg'l Transp. Auth. Act, ch. 32, art. 4(a).
252. See Donald Axelrod, Shadow Government: The Hidden World of Public Authorities - And How They Control Over $1 Trillion of Your Money 15-20, 35-62 (1992); Briffault, Business Improvement Districts, supra note 164, at 389-94, 414-20; Briffault, Sublocal, supra note 164, at 525. Former New York Governor Mario Cuomo characterized authorities as having the "big advantage: free from the control the people have; the big disadvantage: free from the control the people have." Axelrod, supra, at viii; see also Robert G. Smith, The Changing Role of Funding in Authority Policy Implementation, in Public Authorities and Public Policy: The Business of Government 83-95 (Jerry Mitchell ed., 1992) (describing self-financing strategies for authorities and particular authority projects and their financing). Georgia's new Regional Transportation Authority consists of members appointed by the governor. See Ga. Reg'l Transp. Auth. Act, ch. 32, art. 4(a).
253. See Donald Axelrod, Shadow Government: The Hidden World of Public Authorities - And How They Control Over $1 Trillion of Your Money 15-20, 35-62 (1992); Briffault, Business Improvement Districts, supra note 164, at 389-94, 414-20; Briffault, Sublocal, supra note 164, at 525. Former New York Governor Mario Cuomo characterized authorities as having the "big advantage: free from the control the people have; the big disadvantage: free from the control the people have." Axelrod, supra, at viii; see also Robert G. Smith, The Changing Role of Funding in Authority Policy Implementation, in Public Authorities and Public Policy: The Business of Government 83-95 (Jerry Mitchell ed., 1992) (describing self-financing strategies for authorities and particular authority projects and their financing). Georgia's new Regional Transportation Authority consists of members appointed by the governor. See Ga. Reg'l Transp. Auth. Act, ch. 32, art. 4(a).
254. See Donald Axelrod, Shadow Government: The Hidden World of Public Authorities - And How They Control Over $1 Trillion of Your Money 15-20, 35-62 (1992); Briffault, Business Improvement Districts, supra note 164, at 389-94, 414-20; Briffault, Sublocal, supra note 164, at 525. Former New York Governor Mario Cuomo characterized authorities as having the "big advantage: free from the control the people have; the big disadvantage: free from the control the people have." Axelrod, supra, at viii; see also Robert G. Smith, The Changing Role of Funding in Authority Policy Implementation, in Public Authorities and Public Policy: The Business of Government 83-95 (Jerry Mitchell ed., 1992) (describing self-financing strategies for authorities and particular authority projects and their financing). Georgia's new Regional Transportation Authority consists of members appointed by the governor. See Ga. Reg'l Transp. Auth. Act, ch. 32, art. 4(a).
255. See Briffault, Local Government, supra note 9, at 1145-48 (discussing option of special districts and "federally inspired" regional councils as means to address regional metropolitan issues and noting appointed nature of officials within such entities and lack of accountability and legitimacy).
256. See Clayton P. Gillette, Fiscal Federalism and the Use of Municipal Bond Proceeds, 58 N.Y.U. L. Rev. 1030, 1065-66 (1983).
257. Briffault, Local Government, supra note 9, at 1169.
258. Professors Frug and Ford hence devote much of their analysis of metropolitan growth, problems and community to the proposition that a regional legislature is the best cure for regional problems. See Ford, supra note 9, at 1908-09; Frug, supra notes 8, at 1075-81. Professor Briffault questions the viability of such a regional legislature coming into existence as a result of local government sacrifice, and concludes that states will have to act to create effective regional entities, but that such regional entities must be staffed with elected representatives to avoid problems of unresponsiveness and to ensure that their actions are viewed as legitimate. See Briffault, Local Government, supra note 9, at 1166-68.
259. Senator Jackson's proposals to enact federal land use legislation had substantial support, but in the end were not enacted. See supra note 2.
260. See generally Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167 (1996) (advocating for a pre-New Deal interpretation of the Commerce Clause); William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political Theory of American Federalism, 47 Vand. L. Rev. 1355 (1994) (examining the development of federalism in the context of the Commerce Clause); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213 (1996) (critiquing the Lopez and Seminole Tribe Commerce Clause decisions of the Supreme Court).
261. See generally Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167 (1996) (advocating for a pre-New Deal interpretation of the Commerce Clause); William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political Theory of American Federalism, 47 Vand. L. Rev. 1355 (1994) (examining the development of federalism in the context of the Commerce Clause); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213 (1996) (critiquing the Lopez and Seminole Tribe Commerce Clause decisions of the Supreme Court).
262. See generally Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167 (1996) (advocating for a pre-New Deal interpretation of the Commerce Clause); William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political Theory of American Federalism, 47 Vand. L. Rev. 1355 (1994) (examining the development of federalism in the context of the Commerce Clause); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213 (1996) (critiquing the Lopez and Seminole Tribe Commerce Clause decisions of the Supreme Court).
263. 514 U.S. 549 (1995).
264. See id. at 552.
265. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
266. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
267. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
268. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
269. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
270. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
271. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 175-76 (1998) (exploring the reach of the Commerce Clause and the Lopez case in the context of a constitutional challenge to the reach of the federal endangered species law). A separate development that may also confound anti-sprawl efforts is an increasingly anti-regulatory body of "takings" jurisprudence. Recent Supreme Court cases involving claims of regulatory takings have created disincentives for federal or state efforts to modify land uses to reduce environmental harms. Compare Hadacheck v. Sebastian, 239 U.S. 394 (1915) (upholding a municipal ordinance substantially restricting harmful land use activities), with Dolan v. City of Tigard, 512 U.S. 374 (1994) (finding a taking due to an insufficiently proportional exaction imposed by a local government), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (determining a regulation that denies a property owner all economically viable use of his land invalid unless the owner receives compensation, unless the harm regulated was prohibited under common law). These cases indicate that a requirement of compensation under takings claims is a distinct possibility where governments restrict land uses either in the form of direct prohibitions on all economically productive land uses or bargained-for-permits conditioned on a permittee providing some kind of environmental benefit that is inadequately linked in type or in proportion to the anticipated harms of the proposed conduct. A narrow majority of the current Supreme Court views land use regulations to further environmental ends with particular disfavor. A further complicating variable for anti-sprawl efforts is the passage in several states of takings legislation that creates a state law legislative right to compensation for landowners whose land loses substantial value due to use restrictions. See generally Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187 (1997). Similar bills have been proposed by several federal legislators, but such bills to date have been defeated. For a discussion of one of the leading federal takings bills, see Sharon Buccino, Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases, 28 Env. L. Rep. 10,083 (Feb. 1998). For a discussion of how a less compensation-oriented takings jurisprudence would create incentives for a "race to develop," see David A. Dana, Natural Preservation and the Race to Develop, 143 U. Pa. L. Rev. 655 (1995).
272. 505 U.S. 144 (1992).
273. For the Supreme Court's earlier upholding of federal authority to use conditional funding to encourage changed state behavior, see South Dakota v. Dole, 483 U.S. 203 (1987).
274. See id. at 210. As stated by Richard Epstein, a strong critic of conditional federal spending, after Dole "any constitutional challenges to the conditions attached to federal grants are hopeless under the current law." Richard A. Epstein, Bargaining With the State 157 (1993).
275. Printz v. United States, 521 U.S. 898, 927-31 (1997). For a critique of New York and Printz, see Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813, 824 (1998). See also Moulton, supra note 147, at 868-85.
276. Printz v. United States, 521 U.S. 898, 927-31 (1997). For a critique of New York and Printz, see Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813, 824 (1998). See also Moulton, supra note 147, at 868-85.
277. Printz v. United States, 521 U.S. 898, 927-31 (1997). For a critique of New York and Printz, see Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813, 824 (1998). See also Moulton, supra note 147, at 868-85.
278. Alden v. Maine, 119 S. Ct. 2240 (1999). See generally Florida Prepaid Post- secondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).
279. Alden v. Maine, 119 S. Ct. 2240 (1999). See generally Florida Prepaid Post-secondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).
280. Alden v. Maine, 119 S. Ct. 2240 (1999). See generally Florida Prepaid Post- secondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).
281. Alden thus closed the door on the option seemingly left open in Seminole Tribe v. Florida, 517 U.S. 44 (1996), for federal statutory rights to be enforced against states in state courts, even though Seminole concluded that "Congress lacks power under Article I to abrogate the States' sovereign immunity from suits commenced or prosecuted in the federal courts." Alden, 119 S. Ct. at 2243 (citing and characterizing Seminole).
282. Alden thus closed the door on the option seemingly left open in Seminole Tribe v. Florida, 517 U.S. 44 (1996), for federal statutory rights to be enforced against states in state courts, even though Seminole concluded that "Congress lacks power under Article I to abrogate the States' sovereign immunity from suits commenced or prosecuted in the federal courts." Alden, 119 S. Ct. at 2243 (citing and characterizing Seminole).
283. Alden, 119 S. Ct. at 2267 ("Nor, subject to constitutional limitations, does the federal government lack the authority or means to seek the State's voluntary consent to private suits." (citing with a "cf." signal South Dakota v. Dole, 483 U.S. 203 (1987))).
284. Alden, 119 S. Ct. at 2267 ("Nor, subject to constitutional limitations, does the federal government lack the authority or means to seek the State's voluntary consent to private suits." (citing with a "cf." signal South Dakota v. Dole, 483 U.S. 203 (1987))).
285. College Savings Bank, 119 S. Ct. at 2231. Justice Scalia's opinion for the Court also includes language that perhaps sets the stage for efforts to undercut South Dakota by limiting contexts in which offers of conditional federal dollars will not be viewed as "coercive" and hence unconstitutional. He states: In any event, we think that where the constitutionally guaranteed protection of the States' sovereign immunity is involved, the point of coercion is automatically passed - and the voluntariness of waiver destroyed - when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity. Id. "Otherwise lawful activity" will perhaps be limited to contexts like that in College Savings Bank where a state participates in markets and it is therefore asserted (unsuccessfully in College Savings), that the state waived its immunity from suit under federal law, but one can easily foresee contexts in which this language might be extended to limit the use of federal dollars to enlist states in furtherance of federal ends. For example, if instead of a state hiring private contractors to build transportation infrastructure with partial federal funds, a state decides to do the work itself, could it be subject to a waiver argument if the dollars arrived with an explicit state acceptance of certain administrative obligations or waivers of sovereign immunity? Such an argument would substantially undercut the usual understanding of South Dakota. See Epstein, supra note 178, at 155.
286. For discussion of ways states can waive and federal actions that will not suffice to create a waiver, see Alden v. Maine, 119 S. Ct. 2240, 2267-68 (1999); for a discussion of reasons states will still be subject to suits for declaratory and injunctive relief, see id. at 2262-63.
287. 209 U.S. 123 (1908) (discussed approvingly, with explanation for why Young remains sound law, in Alden, 119 S. Ct. at 2262-63).
288. 209 U.S. 123 (1908) (discussed approvingly, with explanation for why Young remains sound law, in Alden, 119 S. Ct. at 2262-63).
289. Much as the 1999 trio of federalism cases reaffirm the validity of state waivers of sovereign immunity in connection with receipt of conditional federal dollars, states will be held to waive federalism objections when they choose to displace the federal regulator. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981), cited approvingly in New York v. United States, 505 U.S. 144, 167 (1992)). Even if this waiver logic were held to be modified in light of the 1999 federalism decisions discussed supra notes 180-85 and accompanying text, Ex Parte Young still provides for injunctive or declaratory relief against state officials. See supra note 185 and accompanying text. Federal enforcement against states also remains an option. See Alden, 119 S. Ct. at 2262-63.
290. Much as the 1999 trio of federalism cases reaffirm the validity of state waivers of sovereign immunity in connection with receipt of conditional federal dollars, states will be held to waive federalism objections when they choose to displace the federal regulator. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981), cited approvingly in New York v. United States, 505 U.S. 144, 167 (1992)). Even if this waiver logic were held to be modified in light of the 1999 federalism decisions discussed supra notes 180-85 and accompanying text, Ex Parte Young still provides for injunctive or declaratory relief against state officials. See supra note 185 and accompanying text. Federal enforcement against states also remains an option. See Alden, 119 S. Ct. at 2262-63.
291. Much as the 1999 trio of federalism cases reaffirm the validity of state waivers of sovereign immunity in connection with receipt of conditional federal dollars, states will be held to waive federalism objections when they choose to displace the federal regulator. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981), cited approvingly in New York v. United States, 505 U.S. 144, 167 (1992)). Even if this waiver logic were held to be modified in light of the 1999 federalism decisions discussed supra notes 180-85 and accompanying text, Ex Parte Young still provides for injunctive or declaratory relief against state officials. See supra note 185 and accompanying text. Federal enforcement against states also remains an option. See Alden, 119 S. Ct. at 2262-63.
292. See Alden, 119 S. Ct. at 2267 ("[The] second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the state." (citations omitted)).
293. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 558-60 (1954). For a critique of Wechsler's theory, see William T. Mayton, "The Fate of Lesser Voices": Calhoun v. Wechsler on Federalism, 32 Wake Forest L. Rev. 1083 (1997). Wechsler's theory was embraced by a majority of the Court in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551 n.11 (1985). While the cases discussed above do not directly overrule Garcia, they reflect a markedly different judicial approach in their active redrawing of the lines of federal and state authority despite Congress having drawn different lines in statutes at issue. See Moulton, supra note 147, at 850, 886.
294. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 558-60 (1954). For a critique of Wechsler's theory, see William T. Mayton, "The Fate of Lesser Voices": Calhoun v. Wechsler on Federalism, 32 Wake Forest L. Rev. 1083 (1997). Wechsler's theory was embraced by a majority of the Court in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551 n.11 (1985). While the cases discussed above do not directly overrule Garcia, they reflect a markedly different judicial approach in their active redrawing of the lines of federal and state authority despite Congress having drawn different lines in statutes at issue. See Moulton, supra note 147, at 850, 886.
295. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 558-60 (1954). For a critique of Wechsler's theory, see William T. Mayton, "The Fate of Lesser Voices": Calhoun v. Wechsler on Federalism, 32 Wake Forest L. Rev. 1083 (1997). Wechsler's theory was embraced by a majority of the Court in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551 n.11 (1985). While the cases discussed above do not directly overrule Garcia, they reflect a markedly different judicial approach in their active redrawing of the lines of federal and state authority despite Congress having drawn different lines in statutes at issue. See Moulton, supra note 147, at 850, 886.
296. See Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 319 (1997); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 907-08 (1994); see also Buzbee, supra note 4, at 21-27 (discussing normative and instrumental federalism views to explore changing federal and state roles in environmental law).
297. See Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 319 (1997); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 907-08 (1994); see also Buzbee, supra note 4, at 21-27 (discussing normative and instrumental federalism views to explore changing federal and state roles in environmental law).
298. The "race-to-the-bottom" theory is that states or local governments seeking to secure or retain potentially mobile business and industry (or low fiscal burden residents in the social safety net program context) will sacrifice regulatory rigor, particularly safety and health regulation, to offer business and industry potentially higher returns in a more favorable business environment. Other jurisdictions, however, will compete by offering similarly lax regulation, resulting in competing jurisdictions offering sub-optimal levels of regulatory protections as jurisdictions race to the regulatory bottom to retain business, but with no actual ultimate business-attracting advantage due to the equally low levels of protection resulting from this competition. For one of the early influential explorations of "race-to-the-bottom" theories, see Richard B. Stewart, supra note 134, at 1210-12 (describing race-to-the-bottom dynamics and characterizing this regulatory competition as an example of a "Tragedy of the Commons"). See also Revesz, Rethinking, supra note 126, at 1211-12 (agreeing that such regulatory competition occurs, but arguing that such competition is desirable and should not be foreclosed by federal standards unless some other independent rationale justifies such federal intervention).
299. See Revesz, Rethinking, supra note 126, at 1211-12. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956) (discussed in Revesz, Rethinking, supra note 126, along with a survey of further refinements of Tiebout's theory). For a survey of articles critiquing Revesz's analysis of regulatory dynamics and federalism, see supra note 126.
300. See Revesz, Rethinking, supra note 126, at 1211-12. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956) (discussed in Revesz, Rethinking, supra note 126, along with a survey of further refinements of Tiebout's theory). For a survey of articles critiquing Revesz's analysis of regulatory dynamics and federalism, see supra note 126.
301. See Revesz, Rethinking, supra note 126, at 1211-12. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956) (discussed in Revesz, Rethinking, supra note 126, along with a survey of further refinements of Tiebout's theory). For a survey of articles critiquing Revesz's analysis of regulatory dynamics and federalism, see supra note 126.
302. See Rubin & Feeley, supra note 189, at 907. For a critique of debates over the federal role in light of federalism doctrine, see Shapiro, supra note 144, at 104-06. For Shapiro's critique of the argument that federalism principles should constrain the federal role, see id. at 58-106.
303. See Shapiro, supra note 144, at 107-08.
304. As concluded above, Supreme Court cases make clear that in addressing sprawl, federal, state, and local governments all have authority to act.
305. As observed by Jonathan Macey, officials will sometimes find it politically advantageous to surrender or delegate authority to subordinate levels of government. See Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 Va. L. Rev. 265, 267 (1990) ("Congress will delegate to local regulators only when the political support it obtains from deferring to the states is greater than the political support it obtains from regulating itself.").
306. See supra Part II.
307. This comparison to cumulative voting is similar in concept to Professor Frug's suggestion of the use of cumulative voting to allow voters to influence various local governments in a region and thereby reduce detrimental interjurisdictional competition or failures to cooperate. See Frug, supra note 9, at 329-30. Briffault critiques Frug's proposal by questioning if regional cooperation could ever be achieved without substantial reliance on oversight or coercion from higher levels of government. See Briffault, Local Government, supra note 9, at 1156-64.
308. For an exploration of ways government officials may use threatened changes in policy to extract benefits or "rents" from potentially affected entities, whether these entities support or oppose the government proposal, see Fred S. McChesney, supra note 100.
309. See Peterson, supra note 4, at 69-70 (discussing reasons central governments are more likely to enact redistributional policies than are local governments), 90-91 (arguing that larger constituencies influence central governments and will support policies providing "broader and more diffuse" benefits, while local governments will be more influenced by dominant economic interests), 116-23 (observing lack of group politics at local level that might give voice to diffuse citizen concerns), 170-71 (explaining reasons local governments are unlikely to embrace pollution control measures without preceding central government commands due to fear of disadvantaging local business). See generally Mark Schneider, The Competitive City: The Political Economy of Suburbia (1989) (exploring political and economic incentives of suburban governments, with a particular focus on implications of competition among local governments).
310. See Peterson, supra note 4, at 167-83 (stating that lessening of restrictions on flow of capital and credit at the national level allows for redistributive policies). Even Clarence Stone concedes such a local government focus on growth, although Stone's work concludes that local political coalitions and history will at times embrace policies contrary to the "growth machine" hypothesis. See supra note 104 (citing Stone's scholarship). Other scholars examining local politics observe that "anti-growth" political entrepreneurs also may find success in local governments. See supra note 115 and accompanying text.
311. Professor Stewart, in an early important work on environmental federalism, posits that federal regulatory turf and stringency are unlikely to be "abandoned or compromised" in part because the costs of such regulation will be felt remotely at the state and local level. See Stewart, supra note 134, at 1218-19. For a critique of Stewart's view, see Butler & Macey, supra note 147, at 48-51.
312. See, e.g., Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263, 265-66 (1979) (describing several classes of choice problems in which preferences systematically violate the axioms of expected utility theory where individuals value objects in possession more highly than they would pay initially to acquire the same object).
313. See infra Part IV.
314. See Mitchell, supra note 1 (reporting that due to growing numbers of suburban voters and relative decline in urban voters, coupled with suburban voters' shifting of political alignments, both parties are tailoring "the language and policy proposals" to attract such votes).
315. The concept of government "drift" is similar to the concept of "agency cost." Both terms describe the phenomenon of a government agent or agency with a defined task straying from, or deviating from, the intent of the entity defining the agency's task. See, e.g., Arthur Lupia & Matthew D. McCubbins, Designing Bureaucratic Accountability, 57 L. & Contemp. Probs. 91, 91-94, 106-110 (1994) (discussing bureaucrat's drift from legislative goals and responsive strategies).
316. See supra Part III.B.1. (discussing implications of Supreme Court federalism and Commerce Clause decisions).
317. See Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1918 (1995); Jerry L. Mashaw & Dylan S. Calsyn, Block Grants, Entitlements and Federalism: A Conceptual Map of Contested Terrain, 14 Yale L. & Pol'y Rev. 297, 299 (Symposium Issue 1996) (discussing block grant and entitlement regulatory schemes and stating that such federal grants "each have more varied structures and more heterogeneous purposes than the current debate suggests").
318. See Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1918 (1995); Jerry L. Mashaw & Dylan S. Calsyn, Block Grants, Entitlements and Federalism: A Conceptual Map of Contested Terrain, 14 Yale L. & Pol'y Rev. 297, 299 (Symposium Issue 1996) (discussing block grant and entitlement regulatory schemes and stating that such federal grants "each have more varied structures and more heterogeneous purposes than the current debate suggests").
319. See supra Part III.B.
320. Although such federal spending is an option for potential recipients to consider, some scholars question if state and local governments have much actual choice to turn down available federal dollars. See, e.g., Baker, supra note 207, at 1935-54 (developing a normative argument against the appropriateness of conditional federal spending jurisprudence and characterizing the federal government as having "monopoly power" over sources of state revenue); Epstein, supra note 178, at 153 (discussing conditional federal spending cases and characterizing federal use of tax and spending incentives as "coercive" and unfortunate due to their subversion of the structural benefits of more independent and competitive governments).
321. See Sidney Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 Admin. L. Rev. 1, 3-19, 27-36 (1994) (analyzing effects of political oversight of agency action and suggesting ways intrusive oversight can harm the quality of agency actions); cf. William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 59-60 (1975) (observing that oversight of agency action by courts improves the quality of agency decisionmaking).
322. See Sidney Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 Admin. L. Rev. 1, 3-19, 27-36 (1994) (analyzing effects of political oversight of agency action and suggesting ways intrusive oversight can harm the quality of agency actions); cf. William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 59-60 (1975) (observing that oversight of agency action by courts improves the quality of agency decisionmaking).
323. For a recent critical assessment of the concept of "cooperative federalism" and reasons "the federal government should not . . . conscript the services of nonfederal governments," see Hills, supra note 179, at 817.
324. See Nelson et al., supra note 3, at 2-3; Peterson, supra note 4, at 144-46 (discussing federal policies facilitating use of the automobile); id. at ch. 11 (discussing tax policies acting to promote home ownership and suburban development).
325. See Advisory Comm'n on Intergovernmental Relations ("ACIR"), Regulatory Federalism: Policy, Process, Impact and Reform 8-9 (1984) (describing "crosscutting" sanctions as "across the board" requirements attached to federal dollars, while "crossover" sanctions "threaten the termination or reduction of aid provided under one or more specified programs unless the requirements of another program are satisfied"); Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 375 & n.90 (1999) (discussing use of federal highway funds "as a recurring tool of persuasion" under other regulatory programs). The conditional federal spending threat of greatest significance to sprawl is found in the Clean Air Act and linked provisions of transportation laws. Where a jurisdiction is not meeting its Clean Air Act obligations, federal transportation dollars are often subject to a project moratorium. See Environmental Defense Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (striking down EPA regulations and discussing restrictions on use of federal transportation dollars for projects in areas not conforming to Clean Air Act and planning requirements). TEA-21 largely reauthorizes, but also in substantial part replaces and amends the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C.). For a complete version of the House Conference Report on TEA-21, see H.R. Conf. Rep. No. 105-550, at 1 (1998), reprinted in 1998 U.S.C.C.A.N. 70. As of the time of drafting and submission of this Article, no fully conformed version of TEA-21 that combines previous law and amending or new language is yet codified in the United States Code. Numerous TEA-21 provisions link state and local transportation activities to potential federal transportation funding. See, e.g., TEA-21, Pub. L. No. 105-178, §§ 1110, 1203, 1204, 3004, 3005 & 3037, 112 Stat. 107 (1998).
326. See Advisory Comm'n on Intergovernmental Relations ("ACIR"), Regulatory Federalism: Policy, Process, Impact and Reform 8-9 (1984) (describing "crosscutting" sanctions as "across the board" requirements attached to federal dollars, while "crossover" sanctions "threaten the termination or reduction of aid provided under one or more specified programs unless the requirements of another program are satisfied"); Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 375 & n.90 (1999) (discussing use of federal highway funds "as a recurring tool of persuasion" under other regulatory programs). The conditional federal spending threat of greatest significance to sprawl is found in the Clean Air Act and linked provisions of transportation laws. Where a jurisdiction is not meeting its Clean Air Act obligations, federal transportation dollars are often subject to a project moratorium. See Environmental Defense Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (striking down EPA regulations and discussing restrictions on use of federal transportation dollars for projects in areas not conforming to Clean Air Act and planning requirements). TEA-21 largely reauthorizes, but also in substantial part replaces and amends the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C.). For a complete version of the House Conference Report on TEA-21, see H.R. Conf. Rep. No. 105-550, at 1 (1998), reprinted in 1998 U.S.C.C.A.N. 70. As of the time of drafting and submission of this Article, no fully conformed version of TEA-21 that combines previous law and amending or new language is yet codified in the United States Code. Numerous TEA-21 provisions link state and local transportation activities to potential federal transportation funding. See, e.g., TEA-21, Pub. L. No. 105-178, §§ 1110, 1203, 1204, 3004, 3005 & 3037, 112 Stat. 107 (1998).
327. See Advisory Comm'n on Intergovernmental Relations ("ACIR"), Regulatory Federalism: Policy, Process, Impact and Reform 8-9 (1984) (describing "crosscutting" sanctions as "across the board" requirements attached to federal dollars, while "crossover" sanctions "threaten the termination or reduction of aid provided under one or more specified programs unless the requirements of another program are satisfied"); Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 375 & n.90 (1999) (discussing use of federal highway funds "as a recurring tool of persuasion" under other regulatory programs). The conditional federal spending threat of greatest significance to sprawl is found in the Clean Air Act and linked provisions of transportation laws. Where a jurisdiction is not meeting its Clean Air Act obligations, federal transportation dollars are often subject to a project moratorium. See Environmental Defense Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (striking down EPA regulations and discussing restrictions on use of federal transportation dollars for projects in areas not conforming to Clean Air Act and planning requirements). TEA-21 largely reauthorizes, but also in substantial part replaces and amends the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C.). For a complete version of the House Conference Report on TEA-21, see H.R. Conf. Rep. No. 105-550, at 1 (1998), reprinted in 1998 U.S.C.C.A.N. 70. As of the time of drafting and submission of this Article, no fully conformed version of TEA-21 that combines previous law and amending or new language is yet codified in the United States Code. Numerous TEA-21 provisions link state and local transportation activities to potential federal transportation funding. See, e.g., TEA-21, Pub. L. No. 105-178, §§ 1110, 1203, 1204, 3004, 3005 & 3037, 112 Stat. 107 (1998).
328. See Advisory Comm'n on Intergovernmental Relations ("ACIR"), Regulatory Federalism: Policy, Process, Impact and Reform 8-9 (1984) (describing "crosscutting" sanctions as "across the board" requirements attached to federal dollars, while "crossover" sanctions "threaten the termination or reduction of aid provided under one or more specified programs unless the requirements of another program are satisfied"); Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 375 & n.90 (1999) (discussing use of federal highway funds "as a recurring tool of persuasion" under other regulatory programs). The conditional federal spending threat of greatest significance to sprawl is found in the Clean Air Act and linked provisions of transportation laws. Where a jurisdiction is not meeting its Clean Air Act obligations, federal transportation dollars are often subject to a project moratorium. See Environmental Defense Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (striking down EPA regulations and discussing restrictions on use of federal transportation dollars for projects in areas not conforming to Clean Air Act and planning requirements). TEA-21 largely reauthorizes, but also in substantial part replaces and amends the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C.). For a complete version of the House Conference Report on TEA-21, see H.R. Conf. Rep. No. 105-550, at 1 (1998), reprinted in 1998 U.S.C.C.A.N. 70. As of the time of drafting and submission of this Article, no fully conformed version of TEA-21 that combines previous law and amending or new language is yet codified in the United States Code. Numerous TEA-21 provisions link state and local transportation activities to potential federal transportation funding. See, e.g., TEA-21, Pub. L. No. 105-178, §§ 1110, 1203, 1204, 3004, 3005 & 3037, 112 Stat. 107 (1998).
329. See Advisory Comm'n on Intergovernmental Relations ("ACIR"), Regulatory Federalism: Policy, Process, Impact and Reform 8-9 (1984) (describing "crosscutting" sanctions as "across the board" requirements attached to federal dollars, while "crossover" sanctions "threaten the termination or reduction of aid provided under one or more specified programs unless the requirements of another program are satisfied"); Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 375 & n.90 (1999) (discussing use of federal highway funds "as a recurring tool of persuasion" under other regulatory programs). The conditional federal spending threat of greatest significance to sprawl is found in the Clean Air Act and linked provisions of transportation laws. Where a jurisdiction is not meeting its Clean Air Act obligations, federal transportation dollars are often subject to a project moratorium. See Environmental Defense Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (striking down EPA regulations and discussing restrictions on use of federal transportation dollars for projects in areas not conforming to Clean Air Act and planning requirements). TEA-21 largely reauthorizes, but also in substantial part replaces and amends the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C.). For a complete version of the House Conference Report on TEA-21, see H.R. Conf. Rep. No. 105-550, at 1 (1998), reprinted in 1998 U.S.C.C.A.N. 70. As of the time of drafting and submission of this Article, no fully conformed version of TEA-21 that combines previous law and amending or new language is yet codified in the United States Code. Numerous TEA-21 provisions link state and local transportation activities to potential federal transportation funding. See, e.g., TEA-21, Pub. L. No. 105-178, §§ 1110, 1203, 1204, 3004, 3005 & 3037, 112 Stat. 107 (1998).
330. See Advisory Comm'n on Intergovernmental Relations ("ACIR"), Regulatory Federalism: Policy, Process, Impact and Reform 8-9 (1984) (describing "crosscutting" sanctions as "across the board" requirements attached to federal dollars, while "crossover" sanctions "threaten the termination or reduction of aid provided under one or more specified programs unless the requirements of another program are satisfied"); Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. Rev. 351, 375 & n.90 (1999) (discussing use of federal highway funds "as a recurring tool of persuasion" under other regulatory programs). The conditional federal spending threat of greatest significance to sprawl is found in the Clean Air Act and linked provisions of transportation laws. Where a jurisdiction is not meeting its Clean Air Act obligations, federal transportation dollars are often subject to a project moratorium. See Environmental Defense Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999) (striking down EPA regulations and discussing restrictions on use of federal transportation dollars for projects in areas not conforming to Clean Air Act and planning requirements). TEA-21 largely reauthorizes, but also in substantial part replaces and amends the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections of 23 U.S.C.). For a complete version of the House Conference Report on TEA-21, see H.R. Conf. Rep. No. 105-550, at 1 (1998), reprinted in 1998 U.S.C.C.A.N. 70. As of the time of drafting and submission of this Article, no fully conformed version of TEA-21 that combines previous law and amending or new language is yet codified in the United States Code. Numerous TEA-21 provisions link state and local transportation activities to potential federal transportation funding. See, e.g., TEA-21, Pub. L. No. 105-178, §§ 1110, 1203, 1204, 3004, 3005 & 3037, 112 Stat. 107 (1998).
331. 16 U.S.C. §§ 1451-64 (1994).
332. TEA-21, § 1203, 112 Stat. 107, 170-79.
333. See The Center for Urban and Regional Studies (University of North Carolina at Chapel Hill), Evaluation of the National Coastal Zone Management Program iii-vii, 1-31, 53-77 (1991) [hereinafter CZMA Evaluation] (describing CZMA's provisions and its passage and implementation); see also Karkkainen, supra note 11, at 81-82 (assessing CZMA as a possible model for enhanced federal efforts to protect biodiversity); Ruhl, supra note 11, at 616-20 (same); Martin J. LaLonde, Note, Allocating the Burden of Proof to Effectuate the Preservation and Federalism Goals of the Coastal Zone Management Act, 92 Mich. L. Rev. 438, 441-46 (1993) (describing CZMA and focusing on federal consistency provisions' implementation).
334. See The Center for Urban and Regional Studies (University of North Carolina at Chapel Hill), Evaluation of the National Coastal Zone Management Program iii- vii, 1-31, 53-77 (1991) [hereinafter CZMA Evaluation] (describing CZMA's provisions and its passage and implementation); see also Karkkainen, supra note 11, at 81-82 (assessing CZMA as a possible model for enhanced federal efforts to protect biodiversity); Ruhl, supra note 11, at 616-20 (same); Martin J. LaLonde, Note, Allocating the Burden of Proof to Effectuate the Preservation and Federalism Goals of the Coastal Zone Management Act, 92 Mich. L. Rev. 438, 441-46 (1993) (describing CZMA and focusing on federal consistency provisions' implementation).
335. See CZMA Evaluation, supra note 216, at 81-166 (reviewing states' varied responses to CZMA incentives).
336. See id. at 33-41; LaLonde, supra note 216, at 441-46.
337. See 16 U.S.C. §§ 3501-10.
338. See Elise Jones, The Coastal Barrier Resources Act: A Common Cents Approach to Coastal Protection, 21 Envtl. L. 1015, 1017 (1991).
339. David Salvesen, Sand Castles: On Topsail Island, Homeowners Discover that Building on Barrier Islands is Risky Business, The Amicus J., Winter 1997, at 28, 31 (reporting that aerial photographs show markedly different development patterns in CBRA and non-CBRA areas).
340. See CZMA Evaluation, supra note 216, at 81-166 (surveying state coastal protection programs).
341. See Oliver A. Houck, Ending the War: A Strategy to Save America's Coastal Zone, 47 Md. L. Rev. 358, 359-60 (1988).
342. See Ruhl, supra note 11, at 616-20. "Swampbuster" provisions in federal farm bills have similarly provided for losses of federal subsidies should a farmer convert wetlands to crop production. See Federal Agriculture Improvement and Reform Act of 1996 § 321(a)(2), 16 U.S.C. § 3821 (Supp. 1999). The efficacy of such provisions is in doubt due to recent shifts in strategies to provide farmers with monetary support; instead of variable price supports, recent legislation relies more on "market transition payments" that are less targeted to particular activities. See Karkkainen, supra note 11, at 66-68 (citation omitted). Without activity-specific subsidies, "swampbuster" provisions lose much of their efficacy. See id.
343. See U.S. Dep't of Transp., Pub. No. FHWA-PL-98-038, A Summary: Transportation Equity Act for the 21st Century 3-7, 44-49 (1997).
344. For a sympathetic review of ISTEA's achievement published by a group favoring alternative transportation methods, see Surface Transportation Policy Project, Green Streets, The 1991 Intermodal Surface Transportation Efficiency Act and the Greening of Transportation Policy in the United States 24. For analysis of the intersection of Clean Air Act programs and federal transportation laws, particularly focusing on transportation planning requirements, see Arnold W. Reitze, Jr., Transportation-Related Pollution and the Clean Air Act's Conformity Requirements, 13 Nat. Resources & Env't 406 (1998).
345. See Briffault, Local Government, supra note 9, at 1152-56 (discussing viability of a regional legislature and concluding that past federal laws encouraging or requiring regional planning and deliberation did not force planning participants to surrender preexisting positions of strength). Briffault critiques Jerry Frug, Decentering Decentralization, supra note 9, at 294-98, and approvingly quotes Frug's statement that "it is unlikely that those who profit from current law will undo it themselves." Briffault, Local Government, supra note 9, at 1155 n.194 (citing Frug, supra note 9, Decentering Decentralization, at 285).
346. See Briffault, Local Government, supra note 9, at 1152-56 (discussing viability of a regional legislature and concluding that past federal laws encouraging or requiring regional planning and deliberation did not force planning participants to surrender preexisting positions of strength). Briffault critiques Jerry Frug, Decentering Decentralization, supra note 9, at 294-98, and approvingly quotes Frug's statement that "it is unlikely that those who profit from current law will undo it themselves." Briffault, Local Government, supra note 9, at 1155 n.194 (citing Frug, supra note 9, Decentering Decentralization, at 285).
347. See Briffault, Local Government, supra note 9, at 1152-56 (discussing viability of a regional legislature and concluding that past federal laws encouraging or requiring regional planning and deliberation did not force planning participants to surrender preexisting positions of strength). Briffault critiques Jerry Frug, Decentering Decentralization, supra note 9, at 294-98, and approvingly quotes Frug's statement that "it is unlikely that those who profit from current law will undo it themselves." Briffault, Local Government, supra note 9, at 1155 n.194 (citing Frug, supra note 9, Decentering Decentralization, at 285).
348. See Briffault, Local Government, supra note 9, at 1152-56 (discussing viability of a regional legislature and concluding that past federal laws encouraging or requiring regional planning and deliberation did not force planning participants to surrender preexisting positions of strength). Briffault critiques Jerry Frug, Decentering Decentralization, supra note 9, at 294-98, and approvingly quotes Frug's statement that "it is unlikely that those who profit from current law will undo it themselves." Briffault, Local Government, supra note 9, at 1155 n.194 (citing Frug, supra note 9, Decentering Decentralization, at 285).
349. See 23 C.F.R. § 450.212(c) (1999) (ISTEA's implementing regulations).
350. See, e.g., Surface Transportation Policy Project, A Blueprint for ISTEA Reauthorization: A Common Sense Guide to Transportation Priorities for the 21st Century 3 (1997) (making twenty-five recommendations to improve and reauthorize ISTEA); Cynthia Burbank & S. Lawrence Paulson, Congress Battles Over Successor to ISTEA, Public Roads, July/Aug. 1997, at 41 (ISTEA "gave states unprecedented flexibility to use federal funds . . . [a]nd it attempted to balance the need for improved transportation with other vital national goals - a cleaner environment . . . .").
351. See, e.g., Surface Transportation Policy Project, A Blueprint for ISTEA Reauthorization: A Common Sense Guide to Transportation Priorities for the 21st Century 3 (1997) (making twenty-five recommendations to improve and reauthorize ISTEA); Cynthia Burbank & S. Lawrence Paulson, Congress Battles Over Successor to ISTEA, Public Roads, July/Aug. 1997, at 41 (ISTEA "gave states unprecedented flexibility to use federal funds . . . [a]nd it attempted to balance the need for improved transportation with other vital national goals - a cleaner environment . . . .").
352. As discussed infra notes 247-52 and accompanying text, these and most other conditional federal spending regulatory schemes make little or no use of statutory citizen suit provisions to enlist citizens in ensuring that programs or projects receiving federal funds conform to legal requirements.
353. For the most famous case under such transportation law provisions, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411 (1971) (stating that § 4(f) of the Department of Transportation Act of 1966 and another statute with similar language prohibited release of federal highway funds for a new road through a Tennessee park unless there was a federal finding that there was "no feasible and prudent alternative to the use of such land, and . . . [the] program include[d] all possible planning to minimize harm" (citation omitted)). Critics question the effectiveness of this provision. See Oliver A. Houck, Hard Choices: The Analysis of Alternatives Under Section 404 of the Clean Water Act and Similar Environmental Laws, 60 U. Colo. L. Rev. 773, 821-22 (1989).
354. For the most famous case under such transportation law provisions, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411 (1971) (stating that § 4(f) of the Department of Transportation Act of 1966 and another statute with similar language prohibited release of federal highway funds for a new road through a Tennessee park unless there was a federal finding that there was "no feasible and prudent alternative to the use of such land, and . . . [the] program include[d] all possible planning to minimize harm" (citation omitted)). Critics question the effectiveness of this provision. See Oliver A. Houck, Hard Choices: The Analysis of Alternatives Under Section 404 of the Clean Water Act and Similar Environmental Laws, 60 U. Colo. L. Rev. 773, 821-22 (1989).
355. For a discussion of brownfields initiatives and federal-state interactions and innovations, see Buzbee, supra note 4.
356. See supra note 50-54 and accompanying text.
357. See Eisen, supra note 52, at 887-88.
358. See supra notes 50-54 and accompanying text.
359. See Karkkainen, supra note 11, at 68-70 (discussing Conservation Reserve Program, 16 U.S.C. § 3831(b) (1994), and Wetlands Reserve Program, 16 U.S.C. § 3837(a) & (e), and accompanying regulations, both of which provide for direct monetary payments to farmers retaining or restoring wetlands). Karkkainen notes that, in contrast to schemes that seek to protect wetlands through regulatory prohibitions, these subsidy programs are "warmly regard[ed]" by farmers subject to their provisions. Karkkainen, supra note 11, at 70.
360. See Rachel L. Schowalter, Reuse, Restore, Recycle: Historic Preservation as an Alternative to Sprawl, 29 Envtl. L. Rep. 10,418, 10,424 (1999).
361. See supra Part II.F. (discussing how government officials depend on information and contacts with constituents to assess policy options).
362. Citizens seldom would be expected to prevail in such battles, but dispersed interests have in the past prevailed despite general political-economic predictions. See Schroeder, supra note 92, at 31; supra Part IV.
363. See supra Part II for a discussion of political-economic dynamics underlying sprawl and how individually rational decisions can create substantial harms due to "tragedy of the commons" attributes of sprawling development patterns.
364. For assessments of the value of the environmental impact analysis process, particularly in the context of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370 (1994 & Supp. 1999), see Michael C. Blumm, The National Environmental Policy Act at Twenty: A Preface, 20 Envtl. L. 447, 451 (1990); Michael Herz, Parallel Universes: NEPA Lessons for the New Property, 93 Colum. L. Rev. 1668, 1669-70 (1993); William H. Rodgers, Jr., NEPA at Twenty: Mimicry and Recruitment in Environmental Law, 20 Envtl. L. 485, 487 (1990).
365. For assessments of the value of the environmental impact analysis process, particularly in the context of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370 (1994 & Supp. 1999), see Michael C. Blumm, The National Environmental Policy Act at Twenty: A Preface, 20 Envtl. L. 447, 451 (1990); Michael Herz, Parallel Universes: NEPA Lessons for the New Property, 93 Colum. L. Rev. 1668, 1669-70 (1993); William H. Rodgers, Jr., NEPA at Twenty: Mimicry and Recruitment in Environmental Law, 20 Envtl. L. 485, 487 (1990).
366. For assessments of the value of the environmental impact analysis process, particularly in the context of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370 (1994 & Supp. 1999), see Michael C. Blumm, The National Environmental Policy Act at Twenty: A Preface, 20 Envtl. L. 447, 451 (1990); Michael Herz, Parallel Universes: NEPA Lessons for the New Property, 93 Colum. L. Rev. 1668, 1669-70 (1993); William H. Rodgers, Jr., NEPA at Twenty: Mimicry and Recruitment in Environmental Law, 20 Envtl. L. 485, 487 (1990).
367. See William W. Buzbee, Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis After Bennett v. Spear, 49 Admin. L. Rev. 763, 769-72 (1997) (discussing how citizens' ability to enforce legal requirements in court influences dynamics of even discretionary regulatory decisions).
368. See Karkkainen, supra note 11, 76-78.
369. See supra notes 64-74 (discussing Clean Air Act and its sanction provisions).
370. See supra notes 216-24, 230 & 236-37 and accompanying text.
371. See, e.g., Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L & Litig. 309, 311-14 (1994) (describing the use of Title VI in battling environmental racism); Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1, 5-6 (1996) (discussing the benefits of Title VI litigation); Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations? The Need to Empower Environmental Justice Plaintiffs, 24 Colum. J. Envtl. L. 1, 5 (1999) (explaining how a private right of action will serve the purposes of Title VI).
372. See, e.g., Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L & Litig. 309, 311-14 (1994) (describing the use of Title VI in battling environmental racism); Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1, 5-6 (1996) (discussing the benefits of Title VI litigation); Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations? The Need to Empower Environmental Justice Plaintiffs, 24 Colum. J. Envtl. L. 1, 5 (1999) (explaining how a private right of action will serve the purposes of Title VI).
373. See, e.g., Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. Envtl. L & Litig. 309, 311-14 (1994) (describing the use of Title VI in battling environmental racism); Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 Mich. J. Race & L. 1, 5-6 (1996) (discussing the benefits of Title VI litigation); Bradford C. Mank, Is There a Private Cause of Action Under EPA's Title VI Regulations? The Need to Empower Environmental Justice Plaintiffs, 24 Colum. J. Envtl. L. 1, 5 (1999) (explaining how a private right of action will serve the purposes of Title VI).
374. For an analysis of why private enforcement may be necessary to implement anti-sprawl control laws, see James Poradek, Putting the Use Back in Metropolitan Land-Use Planning: Private Enforcement of Urban Sprawl Control Laws, 81 Minn. L. Rev. 1343, 1366-74 (1997).
375. 5 U.S.C. §§ 551-706 (1994).
376. These provisions empower aggrieved citizens to sue polluters, government officials, or agencies that are breaking the law. Such citizen suit provisions have been essential to prod reluctant agencies or correct illegal agency activity. See infra Part IV for further discussion of the importance of such provisions to federal environmental laws.
377. See Sierra Club v. Pena, 915 F. Supp. 1381, 1381 (N.D. Ohio 1996), aff'd sub nom., Sierra Club v. Slater, 120 F.3d 623, 624 (6th Cir. 1997); Town of Secaucus v. United States Dep't of Trans., 889 F. Supp. 779, 786-90 (D.N.J. 1995).
378. See TEA-21 §§ 1203(f)(2) & 1204(c)(2) (to be codified at 23 U.S.C. §§ 134(f)) & 135(c)). Both provisions, pertaining, respectively, to metropolitan and state transportation planning, state that failures to consider planning factors required by the statute "shall not be reviewable by any court under this title, subchapter II of chapter 5 of Title 5, or chapter 7 of title 5 in any matter affecting" such plans or planning process. Brownfields funding seldom provides opportunities for citizen litigation, although brownfields rehabilitation efforts could implicate provisions in the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, 42 U.S.C. §§ 9601-9675 (1994), or the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. §§ 6901-6992 (1994), both of which do contain citizen suit provisions and other provisions providing for citizen recourse to the courts. See, e.g., 42 U.S.C. § 9613 (providing for challenges to CERCLA regulations); id. § 9659 (providing for CERCLA citizen suits); 42 U.S.C. § 6972 (providing for RCRA citizen suits); id. § 6976 (providing for challenges to RCRA regulations).
379. See infra Part IV.
380. See Briffault, Local Government, supra note 9, at 1148 & nn.162-64 (discussing "rise and fall of federally inspired regional planning councils" and citing sources regarding the same). These programs succeeded during the period of federal funding in modifying state and local planning processes while regional planning councils did their work, but as soon as most federal subsidization ended during the Reagan administration, these councils ceased to serve an important planning function. See id.
381. See, e.g., Nicholas Lemann, The Myth of Community Development, N.Y. Times, Jan. 9, 1994, Magazine, at 27 (questioning efficacy of efforts to revitalize impoverished neighborhoods).
382. See generally Komesar, supra note 152, at 274-75 ("The best choices we have or are likely to have will be imperfect and usually significantly so.").
383. See Wiener, supra note 11, at 714-26.
384. See supra notes 177-86 and accompanying text.
385. For analysis of ways "block grants" and other funding approaches actually exhibit "more varied structures and more heterogeneous purposes than" the block grant debate suggests, see Mashaw & Calsyn, supra note 207, at 299. For discussions of shifts in the politics and substance of federal grants, see Timothy J. Conlan, The Politics of Federal Block Grants: From Nixon to Reagan, 99 Pol. Sci. Q. 247, 247-48 (1984); Hills, supra note 179, at 858-61 (discussing variety of forms of conditional grants and their implications for the political economy of cooperative federalism); Richard P. Nathan & Fred C. Doolittle, Federal Grants: Giving and Taking Away, 100 Pol. Sci. Q. 53 (1985). See generally Bruce Casino, Federal Grants-in Aid: Evolution, Crisis, and Future, 20 Urb. Law. 25 (1988) (reviewing types of grants and their political history).
386. For analysis of ways "block grants" and other funding approaches actually exhibit "more varied structures and more heterogeneous purposes than" the block grant debate suggests, see Mashaw & Calsyn, supra note 207, at 299. For discussions of shifts in the politics and substance of federal grants, see Timothy J. Conlan, The Politics of Federal Block Grants: From Nixon to Reagan, 99 Pol. Sci. Q. 247, 247-48 (1984); Hills, supra note 179, at 858-61 (discussing variety of forms of conditional grants and their implications for the political economy of cooperative federalism); Richard P. Nathan & Fred C. Doolittle, Federal Grants: Giving and Taking Away, 100 Pol. Sci. Q. 53 (1985). See generally Bruce Casino, Federal Grants-in Aid: Evolution, Crisis, and Future, 20 Urb. Law. 25 (1988) (reviewing types of grants and their political history).
387. For analysis of ways "block grants" and other funding approaches actually exhibit "more varied structures and more heterogeneous purposes than" the block grant debate suggests, see Mashaw & Calsyn, supra note 207, at 299. For discussions of shifts in the politics and substance of federal grants, see Timothy J. Conlan, The Politics of Federal Block Grants: From Nixon to Reagan, 99 Pol. Sci. Q. 247, 247-48 (1984); Hills, supra note 179, at 858-61 (discussing variety of forms of conditional grants and their implications for the political economy of cooperative federalism); Richard P. Nathan & Fred C. Doolittle, Federal Grants: Giving and Taking Away, 100 Pol. Sci. Q. 53 (1985). See generally Bruce Casino, Federal Grants-in Aid: Evolution, Crisis, and Future, 20 Urb. Law. 25 (1988) (reviewing types of grants and their political history).
388. A notable example of a so-called block grant scheme that shares attributes with competition-based grant schemes is the Community Development Block Grant program first enacted and implemented during the 1970's. This program combined previously separate categorical grants into so-called block grants, but those block grants were provided only to jurisdictions whose applications and plans were determined to be worthy of funding by the Department of Housing and Urban Development ("HUD"). See Donald F. Kettl, Can the Cities Be Trusted?: The Community Development Experience, 94 Pol. Sci. Q. 437, 437-38 (1979). They provided local governments with substantial discretion in their minimal provision of federal criteria for what projects would be eligible for federal support, but cities only received such funds if they had HUD's support. See id.
389. See Richard P. Nathan, State and Local Governments Under Federal Grants: Toward a Predictive Theory, 98 Pol. Sci. Q. 47, 54 (1983) (describing revenue sharing as allowing "the most discretion of any current grant"). For a discussion of revenue sharing, see generally Richard P. Nathan & Charles F. Adams, Jr., Revenue Sharing: The Second Round (Brookings Institution, 1977); Carol M. Rose, Citizen Participation in Revenue Sharing: A Report from the South 9-12 (Southern Regional Council, 1975).
390. See Richard P. Nathan, State and Local Governments Under Federal Grants: Toward a Predictive Theory, 98 Pol. Sci. Q. 47, 54 (1983) (describing revenue sharing as allowing "the most discretion of any current grant"). For a discussion of revenue sharing, see generally Richard P. Nathan & Charles F. Adams, Jr., Revenue Sharing: The Second Round (Brookings Institution, 1977); Carol M. Rose, Citizen Participation in Revenue Sharing: A Report from the South 9-12 (Southern Regional Council, 1975).
391. See Richard P. Nathan, State and Local Governments Under Federal Grants: Toward a Predictive Theory, 98 Pol. Sci. Q. 47, 54 (1983) (describing revenue sharing as allowing "the most discretion of any current grant"). For a discussion of revenue sharing, see generally Richard P. Nathan & Charles F. Adams, Jr., Revenue Sharing: The Second Round (Brookings Institution, 1977); Carol M. Rose, Citizen Participation in Revenue Sharing: A Report from the South 9-12 (Southern Regional Council, 1975).
392. For a thorough discussion of TEA-21, with a particularly detailed focus on TEA-21's funding strategies and the general mechanics of federal transportation funding, see Surface Transportation Policy Project, TEA-21 User's Guide 4-11 (1998).
393. As discussed supra note 213 and accompanying text, if such dollars, particularly transportation dollars, are subject to loss or freezing due to crossover or cross-cutting sanctions, then state or local dependency on general revenue sharing can be a key part of efforts to enlist state and local cooperation in achieving federal goals.
394. Rose, supra note 260, at v, 2 (discussing general revenue sharing's stated goals and results of empirical study of 60 southern communities indicating that "the influx of federal funds - added to local budgets without any increase in local taxation - has actually tended to reduce citizen participation in local government in many jurisdictions").
395. See id. at 11-12.
396. See Conlan, supra note 258, at 251-56; Nathan & Doolittle, supra note 258, at 58-59.
397. See Robert M. Stein, The Allocation of Federal Aid Monies: The Synthesis of Demand-Side and Supply-Side Explanations, 75 Am. Pol. Sci. Rev. 334, 335-36, 341 (1981) (describing shift from categorical grants provided with substantial federal regulatory restrictions to revenue sharing or block grant strategies); see also Conlan, supra note 258, at 261 (observing that versions of block grants lacking few eligibility or reporting requirements advocated by the Reagan administration shared many attributes with 1970s funding schemes labeled as general revenue sharing). Much of the debate over block grants has arisen in the setting of federal "entitlement" programs such as welfare and other social safety net programs. See Mashaw & Calsyn, supra note 207, at 298-301.
398. See Conlan, supra note 258, at 250-51, 252-53 (noting goal of returning freedom of choice to state and local governments, and also stating that an additional goal was to undercut the "influence of Washington-centered interest groups and their congressional and bureaucratic allies"); Stein, supra note 266, at 335-36, 341.
399. Professor Stein notes the evolutionary nature of grant use: "[N]ew entrants to the federal aid system seek more secure and less restrictive block grant and revenue-sharing monies. Having experienced the dependence of federal aid, new entrants seek to broaden their use of federal largesse by seeking and receiving monies from the larger pool of project grants." Stein, supra note 265, at 341.
400. See, e.g., Kettl, supra note 259, at 447 (reporting that in New Haven, Connecticut, so-called Community Development Block Grants ("CDBGs") were distributed by the mayor to each of the city's neighborhood corporations, "whose support he sought to strengthen, shortly before his party's mayoral primary").
401. See generally Mashaw & Calsyn, supra note 207, at 297-300 (providing accountability arguments and counterarguments in discussion of variety of funding strategies actually used). For an article arguing that unfunded mandates may actually increase political accountability, contrary to the common argument that unfunded federal mandates are unaccountable and therefore problematic, see David A. Dana, The Case for Unfunded Environmental Mandates, 69 S. Cal. L. Rev. 1, 10-25 (1995).
402. See Rose, supra note 260, at 11-12.
403. See id. at 1-2.
404. For a detailed critique of the difficulty in assessing the effectiveness of uses of such funding, see generally United States General Accounting Office, GAO/RCED-99-98, Community Development: Weak Management Controls Compromise Integrity of Four HUD Grant Programs (Apr. 1999).
405. David Mayhew's influential work on legislators' focus on reelection predicts that such credit claiming will virtually always occur. See Mayhew, supra note 142, at 16-19, 52-61. Jonathan Macey observes that legislators will sometimes obtain maximum advantage by publicly devolving responsibility to subordinate units of government. See Macey, supra note 195, at 267-68.
406. Interest groups may prefer the certainty of targeted grants. See Conlan, supra note 258, at 253, 256-57, 263 (discussing contexts in which interest groups opposed funding shifts that threatened previously secured funding). But see id. at 257-58 (discussing broad-based interest group support for community-based block grants).
407. Cf. Dana, supra note 270, at 31-35 (arguing that unfunded mandates requiring state or local activities in compliance with federal requirements, but without federal funding, actually may reflect rational preferences of industry and business due to a more favorable enforcement and implementation terrain at the state and local level and business and industry concern with preventing state and local government advantages in a setting where governments act as market participants).
408. See Kettl, supra note 259, at 444-46 (observing substantial local participation in all aspects of CDBGs, with "far stronger [public interest] than in the local general fund budget" and numerous citizens seeking government provision of funds for particular projects). Kettl also observes, however, that such participation did not necessarily translate into influence and over time tapered off. See id. As discussed supra note 259, the CDBGs discussed by Kettl were sought in applications and provided only if deemed deserving by HUD. Kettl concludes CDBGs led to "a city manifestation of Lowi's interest group liberalism." Id. at 446 (citing Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (1969)).
409. Dislike of "categorical" grants that limited state and local discretion due to narrowly defined funding purposes and often detailed regulatory requirements led to political support for general revenue sharing and block grant funding strategies starting in the 1960s. See Conlan, supra note 258, at 250-55.
410. Conlan, supra note 258, at 253 (quoting David Mayhew, Congress: The Electoral Connection 129 (1974)).
411. See ACIR, supra note 213, at 7-17 (discussing funding sanctions, accountability issues, and criticisms of narrowly targeted and restrictive federal funding strategies).
412. Even after recent Supreme Court decisions reducing federal control of state and local governments in furthering federal ends, conditional federal spending and displacement (or cooperative) federalism options remain constitutionally permissible. See supra notes 172-88 and accompanying text. As concluded by David Dana, the Court's opinion in New York v. United States implicitly concludes that such strategies "constitute permissible 'incentives,' rather than impermissible coercion." Dana, supra note 270, at 9 (citing New York v. United States, 505 U.S. 144 (1992)).
413. See supra notes 64-74, 213 and accompanying text.
414. See, e.g., McGarity, supra note 67, at 1595-1600 (discussing agency foot-dragging and legislative offers of a statutory rescue to jurisdictions failing to meet federal automobile inspection requirements); Oren, supra note 41, at 174-201 (discussing legislative amendment of widely disliked Clean Air Act provisions seeking to modify commuter behavior).
415. See Karkkainen, supra note 11, at 68-70, 92-93 (describing the contrast between broad opposition to regulatory restrictions protecting wetlands and endangered species and substantial support for project-specific subsidies provided to farmers retaining or restoring wetlands); supra notes 51-58 and accompanying text (discussing popularity and successes of brownfields rehabilitation grants and accompanying regulatory incentives).
416. The CDBGs, although nominally "block grants," were much like the application-based funding strategy suggested here. See supra notes 259-77 and accompanying text.
417. See Buzbee, supra note 4, at 59-63; Eisen, supra note 52, at 980-82.
418. See Mayhew, supra note 142, at 52-61 (discussing federal legislators' desire to claim credit as a means to assist reelection efforts).
419. One arguable shortcoming of such application-based funding is that it will tend to favor larger jurisdictions with greater resources available to compete for such funds. See Stein, supra note 266, at 335-36.
420. See Dana, supra note 270, at 32 (noting that "at the state and local level, there is often an absence of well-organized and well-funded groups to articulate and lobby for the general public's interest in environmental protection"); Mank, supra note 141, 60-62; Peterson, supra note 4, at 116-30 (exploring reasons for low levels of citizen and citizen-based interest group activity in local government politics); Steinzor, supra note 141, at 144-45.
421. See supra note 213 and accompanying text (discussing ISTEA and TEA-21's programs seeking project-specific funding support).
422. See supra notes 214-46 and accompanying text. The Department of Housing and Urban Development recently has combined a wide range of previously separate programs into one "Super Notice of Funds Availability," or Super NOFA, that similarly seeks applications for eligible projects. See Super Notice of Funding Availability for Housing and Community Development Programs, 63 Fed. Reg. 15,490 (Mar. 31, 1998).
423. See Altshuler et al., supra note 118, at 120.
424. See Mandelker, supra note 146, §§ 9.11 to 9.22 (discussing uses of development fees and exactions and constitutional constraints under federal and state law on uses of such fees).
425. See Southern Envtl. L. Ctr. & Envtl. L. Inst., Smart Growth in the Southeast 15 (1999) (advocating split rate property tax (also known as land-value or two-tiered real estate tax) as a means to reduce disincentive to develop and use land more intensively).
426. See, e.g., Joel Kotkin, For Retailers in Some City Centers, Gentrification is a Four-Letter Word, N.Y. Times, June 27, 1999, at 7 (describing tensions between Baltimore urban development advocates seeking to add economic vitality to a poor neighborhood and residents concerned about displacement of their homes and businesses).
427. Such a scheme would differ from ISTEA or its successor TEA-21 in giving preferential funding (or greater funding) for non-highway-related expenditures. Much of TEA-21 provides a limited version of such preferential funding in its creation of a "Congestion Mitigation and Air Quality Improvement Program." TEA-21 § 1110 (to be codified at 23 U.S.C. § 149). This section encourages proposals for projects to reduce congestion and air quality problems. An even more targeted monetary encouragement is in TEA-21 § 3037 (to be codified within Title 49). Section 3037, entitled "Job Access and Reverse Commute Grants," offers special additional federal grants for proposals to fill transportation needs of urban poor seeking access to the many jobs located not in central cities but on the urban periphery. See Notice, Job Access and Reverse Commute Competitive Grants, 63 Fed. Reg. 60,168 (Nov. 6, 1998).
428. See generally Winston Harrington, Paying to Drive Freely, 129 Resources 9 (1997); Wahrman, supra note 60.
429. Professor Larry Frank analyzes in detail the benefits of encouraging less sporadic modes of car use and more interconnected street patterns. See Frank, supra note 18.
430. See supra notes 64-74, 213 and accompanying text.
431. Such a requirement would work much like environmental impact statements under the National Environmental Policy Act ("NEPA") and similar state laws, but would, if made part of such analyses, expand the scope of currently required analysis. For a thorough analysis of NEPA, its regulations and cases, see John E. Bonine & Thomas O. McGarity, The Law of Environmental Protection 1-212 (2d ed. 1992).
432. For example, a similar type of cost-benefit analysis is undertaken by the Endangered Species Committee when evaluating requests to allow a proposal to proceed despite endangered species harms. In numerous high visibility matters, the Committee has found that costs associated with major infrastructure projects exceed project benefits. See Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act - A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 Envtl. L. 845, 874 n.111 (1997).
433. For a recent critique of growth management strategies, see generally James H. Wickersham, Note, The Quiet Revolution Continues: The Emerging New Model for State Growth Management Statutes, 18 Harv. Envtl. L. Rev. 489 (1994).
434. Oregon's experience with its urban growth boundary has been mixed, but the preserved green spaces have remained. See supra note 84 and accompanying text.
435. See generally Arthur C. Nelson, Using Land Markets to Evaluate Urban Containment Programs, 63 J. Amer. Plan. Ass'n 94 (1997) (analyzing theoretically and empirically the effects of urban containment programs).
436. See id. at 164-66.
437. See id.
438. Professor Karkkainen has concluded that outright acquisition of areas that can protect or enhance biodiversity is both politically feasible and equitable. See Karkkainen, supra note 11, at 103-04
439. See id. at 84-97 (asserting that government acquisitions of significant lands to preserve biodiversity face fewer constitutional and political obstacles than would regulation to achieve such an end).
440. See id. at 55.
441. See id. at 96-97.
442. 16 U.S.C. §§ 460-4 to 460-11 (1994). See Karkkainen, supra note 11, at 55 & n.310 (also noting potential of the Fund, but noting its limited funding sources and lack of focus on protecting environmentally significant lands); Ruhl, supra note 11, at 656 & n.310 (discussing potential of the Land Water and Conservation Fund to enhance efforts to protect biodiversity, but questioning if the political will exists to actually pay for such efforts).
443. See supra note 175 (discussing recent takings jurisprudence and how regulatory burdens in the land use context can lead to successful constitutional takings claims seeking compensation).
444. See generally Robert Liberty, Planned Growth: The Oregon Model, 13 Nat. Resources & Env't. 315 (1998).
445. See supra Part II (discussing the political-economic dynamics of sprawl).
446. See John P. Dwyer, The Pathology of Symbolic Legislation, 17 Ecology L. Q. 233, 242-50 (1990); Rose, supra note 106, at 1025-1026.
447. See Robert V. Percival et al., Environmental Regulation: Law, Science and Policy 3-6, 68-69 (2d ed. 1996).
448. For history-oriented discussions of the political dynamics surrounding passage of major environmental laws and significant regulatory battles, see Percival supra note, 316, at 106-14 (providing chronology of significant federal environmental legislation); Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 111-12, 129-48 (1993); Jerry W. Calvert, Party Politics and Environmental Policy, in Environmental Politics and Policy: Theories and Evidence 158, 158-78 (James P. Lester ed., 1989) (focusing on legislative initiatives). See generally Marc K. Landy et al., The Environmental Protection Agency: Asking the Wrong Questions (1990) (focusing on regulatory initiatives); Joel A. Mintz, Enforcement at the EPA: High Stakes and Hard Choices (1995) (focusing on the history and regulatory initiatives of the EPA).
449. For history-oriented discussions of the political dynamics surrounding passage of major environmental laws and significant regulatory battles, see Percival supra note, 316, at 106-14 (providing chronology of significant federal environmental legislation); Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 111-12, 129-48 (1993); Jerry W. Calvert, Party Politics and Environmental Policy, in Environmental Politics and Policy: Theories and Evidence 158, 158-78 (James P. Lester ed., 1989) (focusing on legislative initiatives). See generally Marc K. Landy et al., The Environmental Protection Agency: Asking the Wrong Questions (1990) (focusing on regulatory initiatives); Joel A. Mintz, Enforcement at the EPA: High Stakes and Hard Choices (1995) (focusing on the history and regulatory initiatives of the EPA).
450. For history-oriented discussions of the political dynamics surrounding passage of major environmental laws and significant regulatory battles, see Percival supra note, 316, at 106-14 (providing chronology of significant federal environmental legislation); Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 111-12, 129-48 (1993); Jerry W. Calvert, Party Politics and Environmental Policy, in Environmental Politics and Policy: Theories and Evidence 158, 158-78 (James P. Lester ed., 1989) (focusing on legislative initiatives). See generally Marc K. Landy et al., The Environmental Protection Agency: Asking the Wrong Questions (1990) (focusing on regulatory initiatives); Joel A. Mintz, Enforcement at the EPA: High Stakes and Hard Choices (1995) (focusing on the history and regulatory initiatives of the EPA).
451. For history-oriented discussions of the political dynamics surrounding passage of major environmental laws and significant regulatory battles, see Percival supra note, 316, at 106-14 (providing chronology of significant federal environmental legislation); Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 111-12, 129-48 (1993); Jerry W. Calvert, Party Politics and Environmental Policy, in Environmental Politics and Policy: Theories and Evidence 158, 158-78 (James P. Lester ed., 1989) (focusing on legislative initiatives). See generally Marc K. Landy et al., The Environmental Protection Agency: Asking the Wrong Questions (1990) (focusing on regulatory initiatives); Joel A. Mintz, Enforcement at the EPA: High Stakes and Hard Choices (1995) (focusing on the history and regulatory initiatives of the EPA).
452. See Landy et al., supra note 317, at 131-71 (discussing history of CERCLA).
453. Healy & Rosenberg, supra note 12, at 1-2 (quoted in Daniel Mandelker et al., Planning and Control of Land Development 862 (4th ed. 1995)).
454. For one of the first books articulating problems associated with environmental racism and inequity, see generally Robert D. Bullard, Dumping in
455. See Richard Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 850-52 (1993).
456. See Schroeder, supra note 92, at 30.
457. For classic economic theories of regulation, see Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. Econ. 371, 373-81 (1983); George J. Stigler, The Theory of Economic Regulation, in The Citizen and the State 114-141 (1975). See also Richard Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing "capture" theories of regulation but also noting "more subtle explanation of industry orientation" in regulation). For further discussion of the political-economic dynamics leading to sprawl, see supra Part II. This section focuses upon contexts where legal reforms have succeeded despite anticipated political-economic hurdles to success.
458. For classic economic theories of regulation, see Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. Econ. 371, 373-81 (1983); George J. Stigler, The Theory of Economic Regulation, in The Citizen and the State 114-141 (1975). See also Richard Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing "capture" theories of regulation but also noting "more subtle explanation of industry orientation" in regulation). For further discussion of the political-economic dynamics leading to sprawl, see supra Part II. This section focuses upon contexts where legal reforms have succeeded despite anticipated political-economic hurdles to success.
459. For classic economic theories of regulation, see Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. Econ. 371, 373-81 (1983); George J. Stigler, The Theory of Economic Regulation, in The Citizen and the State 114-141 (1975). See also Richard Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-87 (1975) (discussing "capture" theories of regulation but also noting "more subtle explanation of industry orientation" in regulation). For further discussion of the political-economic dynamics leading to sprawl, see supra Part II. This section focuses upon contexts where legal reforms have succeeded despite anticipated political-economic hurdles to success.
460. For two essential discussions of entrepreneurial politics in the environmental area, see generally Elliott et al., supra note 115, and Farber, supra note 115. For discussion of these theories in connection with law and policies to encourage rehabilitation of brownfields sites, see Buzbee, supra note 4, at 12-19.
461. See Mayhew, supra note 142, at 13-77.
462. See Shabecoff, supra note 317, at 112-15.
463. See Elliott et al., supra note 115, at 316.
464. See supra note 1 (citing recent articles regarding substantial political, citizen, and press interest in sprawl); see Mitchell, supra note 1 (reporting particular importance of suburban voters).
465. See Preston, supra note 1.
466. See generally Brent Walth, Fire at Eden's Gate: Tom McCall and the Oregon Story (1994); Leonard, supra note 84.
467. See supra note 162.
468. See Milbank, supra note 1, at 18.
469. See supra Part III.B-C.
470. See Briffault, Local Government, supra note 9, at 1133-41 (discussing reasons localities are unlikely to surrender parochial perspectives despite shared interests in policies addressing regional issues).
471. See Shabecoff, supra note 317, at 103, 256-58.
472. See Farber, supra note 115, at 70-73.
473. See id.
474. See Riley E. Dunlap, Public Opinion and Environmental Policy, in Environmental Politics and Policy: Theories and Evidence 87 (James P. Lester ed., 1989).
475. See Shabecoff, supra note 317, at 255-56.
476. See supra note 5 and accompanying text (citing recent articles critical of anti-sprawl initiatives).
477. Professor Melnick questions the efficacy of such provisions and asserts that statutory deadlines are often intentionally unrealistic, but acknowledges their influence on environmental policy. See R. Shep Melnick, Pollution Deadlines and the Coalition for Failure, in Environmental Politics: Public Costs, Private Rewards 89 (Michael S. Greve & Fred L. Smith, Jr. eds. 1992).
478. See id.
479. See Howard Latin, Ideal versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 Stan. L. Rev. 1267, 1284-92 (1985).
480. See Buzbee, supra note 4, at 42-46 (discussing federal environmental leadership and exploring "first-mover" hypothesis to explain the longstanding federal leadership role); see also Elliott et al., supra note 115, at 338 (exploring political and economic dynamics leading to stringent federal environmental laws); Farber, supra note 115, at 68-69 (discussing reasons why environmental groups have influenced federal policy); Schroeder, supra note 92, at 29.
481. See supra note 141 and accompanying text (discussing critiques of Professors Steinzor and Mank of decentralizing regulatory reinvention proposals and likely effects of dispersing fora in which policy is made); see also Revesz, Rethinking, supra note 126, at 1223-24 & n.37 (discussing how environmental groups are "more effective at the federal level"); Stewart, supra note 134, at 1213-15 (discussing reasons for environmental groups' successes in federal legislative and agency politics).
482. See Reitze, supra note 226, at 412.