Hudson argues that critics of federal environmental law should support local land use planning if they want to reduce the size and scope of federal intervention
University of Houston Law Center Professor Blake Hudson, left, presented his paper on local land use planning at a symposium at Vanderbilt University Law School. Other participants included Charu Ganesh, symposium editor of the "Environmental Law & Policy Annual Review," Bob Martineau of the Tennessee Department of Environment and Conservation, and Linda Breggin of the Environmental Law Institute.
March 15, 2018 — An article written by University of Houston Law Center Professor Blake Hudson on the failure of critics of federal environmental regulation to offer alternative solutions has been cited as one of the top environmental law and policy articles of the year.
Hudson presented his article, "Relative Administrability, Conservatives, and Environmental Regulatory Reform," March 12 as part of a joint symposium hosted by Vanderbilt Law School and the Environmental Law Institute of Washington, D.C.
Originally published in the "Florida Law Review" in 2016, the article was one of five selected for publication in Vanderbilt's "Environmental Law & Policy Annual Review"after law students reviewed more than 800 articles printed in 2016-2017 and received feedback from ELPAR's advisory board.
In the article, Hudson argues that critics of federal environmental bureaucracy's size, scope, and cost, largely from conservative circles, have failed to provide an alternative approach to handling environmental issues comprehensively.
Specifically, he argues that "geographic delineation" policies — the drawing of lines around important environmental resources or developments that might impact such resources — have the potential to yield the greatest environmental benefits at the lowest administrative cost. Such policies include forest and agricultural buffer zones in watersheds (requiring that a 35-foot buffer of trees remain along each side of a creek, for example); geographical restrictions on flood plain development; integrating buffer zones into coastal development as society retreats from rising sea levels; and density restrictions on urban growth boundaries or individual development projects.
"Though these policies have long been available," he said, "state and local governments have not utilized them comprehensively to address many of the subjects targeted by federal environmental legislation."
For example, he cited growth boundaries that can reduce urban sprawl, which in turn reduces vehicle emissions (a target of the federal Clean Air Act); limits impervious surfaces that contribute to water pollution menacing the nation's waterways (not even regulated under the federal Clean Water Act); and reduces habitat fragmentation that leads to species being listed on the federal Endangered Species Act.
Hudson keyed on the failure of conservative policy-makers to support such policies at the state and local level as a reason for their not being implemented more broadly. He argued that in addition to reducing administrative costs relative to federal environmental regulation, such policies should appeal to conservatives because they track fairly well with principles that conservatives value, including state and local policy-making over federal policy-making; smaller government over larger government; lower taxes over higher taxes; clear rules over regulatory discretion; utilitarian conservation over conservation for its own sake; legislative process over executive process; and cost-benefit analysis over precautionary rule-making.
"This proposal is not about completely displacing federal environmental statutes," Hudson stated. "Rather, it is recognition that critics of federal environmental law cannot have their cake and eat it too.
"They would be well served to consider how state and local land use planning matches up quite well with a conservative political worldview; reduces the direct costs of environmental policy implementation and administration; and reduces taxpayer expenditures and costs of implementing federal environmental law.
"If you truly want to reduce the federal presence in citizens' lives, then do a better job of protecting the environment at the state and local level."
Commentators on Hudson's presentation included Michael Butler of the Tennessee Wildlife Federation, Bob Martineau of the Tennessee Department of Environment and Conservation, and Greer Tidwell of Bridgestone Americas.
Hudson teaches Property, Natural Resources Law & Policy, and Water Law & Policy. His article will be republished in condensed form in the 11th volume of the "Environmental Law & Policy Annual Review,"a joint publication of Vanderbilt University Law School and the Environmental Law Institute.
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