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Earning Deference: Reflections on the Merger of Environmental and Land-Use Law

October 2002

Citation: ELR 11190

Author: Michael Allen Wolf

The bedrock notion that courts should, in the over-whelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary, and classrooms. Leading the way are several U.S. Supreme Court Justices who, in cases involving the U.S. Commerce Clause,1 Takings Clause,2 and § 5 of the Fourteenth Amendment of the U.S. Constitution,3 are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government.4

Given this new jurispolitical reality, it is more important than ever that local government officials who are often (though, certainly, not always justifiably) viewed as occupying the bottom rungs of the ladder of governmental competence—take special care when operating beyond the scope of their "traditional" regulatory tasks. Local environmental law is perhaps the most important area in which local officials are stretching beyond their conventional roles. The purpose of this Dialogue is not to urge the prohibition of these regulations, for to do so would run contrary to my commitment to a more healthy environment for humans and other animals and living things.5 Instead, I wish to offer a caveat to local elected and appointed officials—and to the counsel who advise these important actors in the land development and preservation drama—regarding the "nature and extent"6 of environmentally flavored local regulatory activities. This caveat can be simply expressed: "Before implementing, applying, or enforcing local environmental law, make sure that you can demonstrate that you have earned deference."

[Editors' Note: This Dialogue will be included in New Ground: The Advent of Local Environmental Law (John R. Nolon ed.), a collection of papers to be published by ELI. New Ground will examine local environmental law and its strategic role in shaping an appropriate response to a new generation of environmental and land use challenges. Contributors are distinguished scholars and practitioners who have written casebooks and articles on land use and environmental law, served in federal, state, and local administrations or national bar and planning association committees, or prepared national treatises on the subject. Their papers were presented at a symposium hosted by Pace and cosponsored by ELI. The book includes a detailed explanation of this developing field by the editor, the participants' papers, and commentaries. For further information, visit http://www.eli.org or call 1-800-433-5120.]

Professor of Law and History, University of Richmond. The author thanks Mary Heen for her perceptive suggestions and John Nolon and his colleagues at Pace University School of Law (Pace) and John Turner of the Environmental Law Institute (ELI) for presenting the opportunity to participate in the provocative symposium at which these ideas were initially presented.