All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation

Katherine Trisolini

Posted in , ,

Solutions are not coming from Washington. Solutions are coming from our cities. . . . We are the ones that address the issues that matter to people the most. We are the ones that provide the front line, the last hope. . . . When faced with inaction on climate change, it was Mayor Nickels who inspired over 850 of us to implement the Kyoto Protocol. . . . And it does not matter if we are Democrats, Republicans, or Independents. . . . [W]e are all mayors first.

—Miami Mayor Manuel Diaz,
President, U.S. Conference of Mayors, July 20081

This editorial looks at the role that the smallest jurisdictions—cities, counties, and other local governments—can play in the United States’ efforts to reduce its greenhouse gas emissions. Contrary to conventional wisdom among environmental law scholars that local efforts are insignificant, and challenging claims that they could impede a national cap-and-trade program, this editorial argues that local efforts are collectively substantial and complementary to effective national climate change policy.

I. The Place of Local Climate Regulation in Environmental Law: Theory and Practice

As of November 2009, over one thousand mayors representing more than eighty-six million Americans had signed the U.S. Conference of Mayors Climate Protection Agreement. Signatories pledge to meet or beat the Kyoto Protocol’s emissions reduction targets in their communities, lobby the state and federal governments to set emissions reduction targets, and lobby Congress for a national cap-and-trade system. Meanwhile, 569 U.S. cities participate in the Cities for Climate Protection Campaign (CCP) under the auspices of the International Council for Local Environmental Initiatives (ICLEI). Members pledge to reduce greenhouse gas emissions from governmental and community activities. In addition, Chicago, Houston, Los Angeles, New York, and Philadelphia have joined the C40, a group of the largest world cities collaborating on climate change mitigation projects.

Dozens of these cities have inventoried emissions and adopted climate action plans. Critically, the largest U.S. cities are among the most engaged. Local policymakers have participated in summits, exhorted their citizens and the private sector to reduce emissions, and improved the energy efficiency of their own operations. Mayors have lobbied and sued the federal government and berated individual members of Congress for failing to adopt meaningful climate change policies. They have developed green fleet and green power purchasing policies, improved the energy efficiency in their operations, enacted sustainable building programs, improved recycling dramatically, and developed smart growth plans.

Despite their efforts, local governments’ attempts to reduce greenhouse gas emissions have not figured prominently in scholarly assessments of potential strategies to reduce U.S. emissions. To the extent scholars consider local actions, most have evaluated the potential impact under the rubric of “subnational” actions that conflates state and local efforts. While acknowledging the potential to indirectly influence adoption of federal climate change legislation, most dismiss the direct effect of local emissions reduction plans as trivial, inconsequential, or mere posturing.

Theoretical literature on environmental law supports this dismissive view. No state’s actions individually—and certainly no city’s individual actions—can reduce greenhouse gases to a degree sufficient to prevent adverse global warming. Climate change appears to present a classic tragedy of the commons: rational actors should be incentivized to overuse the atmosphere because the costs of reducing emissions are localized while the benefits are widespread, indeed, worldwide. Scholars generally presume that only two strategies can prevent over-exploitation of shared resources—privatization or coercion by a sovereign with a jurisdiction greater than the scale of the harmed resource. Thus, any effective response will require intervention from the highest level. In a similar vein, a prominent approach to dividing regulatory power in the environmental federalism literature asserts that the level of governance should “match” the geographic scale of the harm, also suggesting the irrelevance of local governments.

Meanwhile, some legal scholars and economists have argued that the most efficient way to reduce greenhouse gas emissions to targeted levels is to constrain greenhouse gas emissions from the top down through a comprehensive cap-and-trade system. Robert Stavins, for example, argues that an upstream (i.e., targeted at fossil fuel suppliers) and economy-wide regime “provides the greatest certainty that national emission targets will be achieved.”2 Jonathan Wiener has long advocated a similar comprehensive cap-and-trade system.3 Referring to the “perils of incremental responses to climate change,”4 advocates of these models suspect that subnational efforts could create inefficiencies, entrench counterproductive polices, and cause emissions to “leak” (or shift) to unregulated areas.

Yet the failure to clearly disaggregate state and local efforts causes these and other scholars to overlook the unique nature of local actions. Unlike states, local governments have not been establishing greenhouse gas trading regimes, attempting to directly regulate the utility industry, or adopting vehicle emissions standards. Unlike states, there is less obvious overlap with federal law. Instead, local governments have focused predominantly on reducing fossil fuel demand by changing the built environment, reducing the generation of greenhouse gases from waste (an area unrelated to fossil fuel combustion), and capturing efficiencies in governmental operations. They are largely targeting the farthest downstream actors, consumers, and multiple small-scale activities.

Collectively, these efforts stand to be substantial because of the types of activities under local control and the size of the population within climate active jurisdictions. Moreover, local efforts may play an important role in easing transition to a future cap-and-trade regime by reducing the need for fossil fuels in buildings and transportation systems. And to the extent a future federal regime is ill-designed and does not provide expected emissions reductions, local efforts can help to compensate for these regulatory failures. Even presuming federal adoption of an effective cap-and-trade regime, local demand reduction programs will lower the price of the required emission allowances, helping to sustain political will and preventing the need to employ cost containment measures that could undermine the cap.

Federal climate change policy will be most successful if its architects recognize this potential local contribution and facilitate the reductions local governments have begun to implement. Dismissing local efforts as trivial may obscure effective means of reducing greenhouse gas emissions that rely on well-studied, mature, and available technologies that can be locally regulated within existing institutions. Examining both the potential and current local efforts provides a broader picture of the potential regulatory landscape, in terms of both regulatory targets and potential regulators. Indeed, multiple levels of government can play complementary roles under a model of bidirectional climate change policy-making and regulation.

II. Local Potential to Reduce Greenhouse Gas Emissions: Demographics and Relevant Powers

A. Viewing Local Efforts Collectively

While the total emissions within the ambit of any single local government are only a fraction of U.S. emissions, local efforts are best evaluated collectively for several reasons. First, local governments collaborate to reduce greenhouse gas emissions. They participate in networks, work as allies, share information and techniques, encourage other local governments to join their efforts, and generally appear to be part of a blossoming social movement. Second, the longstanding demographic trend toward urbanization suggest why cities’ policies are collectively substantial. By 2002, 62% of the U.S. population (174 million people) lived within the jurisdiction of a city government and the ten largest cities in the U.S. produce 10% of U.S. greenhouse gas emissions. The growing movement of cities stands to influence an increasingly large share of the population (and a concomitantly large share of emissions). Finally, ignoring local governments’ collective capacity to reduce emissions may obscure the value of proven and sometimes quick reductions that can be accomplished with existing technology and established local bureaucracies.

B. Relevant Areas of Local Power

The following provides a brief overview of the potential contribution of local efforts in several areas of traditional local power.

1. Buildings and energy efficiency

Building codes are generally understood to be a function of the police power, squarely within state and local jurisdiction. Although over the last few decades states have begun to displace local governments’ historical role as the sole purveyors of building codes, local governments retain significant power because some states have no codes, few states entirely preempt local codes, and most leave substantial gaps for local regulation. The power to adopt and enforce building codes is critical to emissions reductions because residential and commercial structures consume 68% of the electricity used in the United States and create 38% of the country’s carbon dioxide emissions.

Mature, available technology has existed for some time that can cut this demand dramatically. While buildings’ energy requirements can be reduced by one-third to one-half at a cost savings,, efficiency improvements are impeded by numerous barriers: lack of information, inertia, highly inflated cost estimates, inadequate institutional development, and split incentives that prevent landlords and developers from making improvements when the energy savings will be realized by others.

Local governments are currently targeting improved building energy efficiency as a means of reducing their emissions. Studies by the American Institute of Architects (AIA) and others show a dramatic upsurge in green building program adoption over the last decade among geographically, politically, and demographically diverse local governments. By 2008, well over seventy-one million Americans lived in a jurisdiction with some form of green building program adopted by their city or county government.

While initial efforts focused on improving energy efficiency in municipally owned or funded buildings, increasingly cities are creating incentives, mandates, or both for commercial as well as residential projects. Boston, Dallas, Houston, Los Angeles, Chicago, and numerous other large and small cities have revised building codes to mandate improved energy efficiency standards for commercial and residential building. Diverse locales have also created a broad range of financial, zoning, and publicity incentives for green building.

2. Zoning and land use power: reducing vehicle use

Local governments’ traditional power over land use makes them critical players in the effort to reduce transportation emissions.The transportation sector produces over a third of U.S. CO2 emissions, and motor vehicle usage accounts for roughly 80% of transportation emissions. While a number of state and federal policies aim to increase vehicle fuel-efficiency and promote low-carbon fuels, projected increases in the average daily driving of Americans, or their “vehicle miles traveled” (VMT), threaten to undermine these efforts. Reducing VMT will therefore be essential to shrinking transportation emissions.

Sprawling residential and commercial development combined with decades of infrastructure developed to facilitate car travel have been key drivers of the upward trajectory in VMT. Low-density land use patterns based on conventional zoning increase VMT by requiring most Americans to drive to work and amenities. Local governments can promote compact development patterns that reduce VMT through a combination of smart growth zoning measures. Because “two-thirds of the development on the ground in 2050 will be built between now and then,”5 smart growth policies that promote infill, provide a mix of uses, and create pedestrian and transit-oriented development provide a low-cost strategy for reducing greenhouse gas emissions.

The potential impact is substantial. A comprehensive study by Reid Ewing and colleagues finds that people drive 20-40% less when living in compact urban environments. Thus, simply directing 60% of new growth to compact forms will reduce GHG emissions by 85 MMT annually by 2030. Meanwhile, the Center for Clean Air Policy demonstrates that combining smart growth policies with expanded transportation choices and targeted transportation pricing could reduce emissions sufficiently to eliminate 145 MMTCO2 per annum, the equivalent of thirty-five large coal plants.

Since 2000, many cities have adopted or begun developing zoning and land use codes based on smart growth principles. As with green building policies, these efforts have included geographically, politically, and demographically diverse locales.

3. Waste and garbage

The traditional and well-accepted local power over waste management can be targeted to reduce emissions through increased recycling rates and methane-to-energy programs. Many local governments’ climate action plans include diversion of solid waste from landfills and incinerators to recycling facilities, employing a range of carrots and sticks to raise recycling rates. Cities have also tackled construction waste, which produces between 25-40% of the U.S. waste stream. Several cities report substantial increases in recycling rates, with important climate change implications: the EPA estimates that raising the average municipal solid waste recycling rate from 30.6% to 35% would reduce greenhouse gas emissions as much as removing twenty-seven million cars from the roadway each year.

Local governments also own and operate a large number of landfills and sewage treatment plants. Methane from these waste processes comprises approximately 2% of U.S. emissions of greenhouse gases. Methane-to-energy systems can both eliminate this source of greenhouse gases while creating substitutes for carbon-intensive fossil fuels. A number of local governments have initiated methane-to-energy systems (although much untapped potential still remains).

4. Proprietary functions of local governments

Potential reductions from proprietary activities alone may be substantial given the sheer number of local governments, the size of their operations, and the types of property that they own and operate. In 2002, the United States had nearly 40,000 general-purpose local governments (and nearly 88,000 total entities if school districts and special use districts are included). These local governments employ nearly 12 million full-time equivalent workers, as compared to the federal government’s 2.5 million and the collective 4.25 million of all fifty states. In addition to buildings, vehicles, lighting structures, and schools, local governments own utilities, airports, landfills, and ports, among many other facilities.

Local governments can and have targeted a long list of energy-consuming activities by changing procurement and operations policies in a broad range of areas including lighting, fleets, energy purchase, and even simple management efforts to reduce resource consumption. Survey data from 2007 shows that nearly 90% of a large majority of cities participating in the Mayors Agreement required or planned to require within the next year that new or rehabilitated city buildings meet improved energy efficiency standards.

The Survey also showed that a large majority of cities have upgraded to more energy efficient lighting in public buildings, streetlights, parks, and traffic signals. Because more than one-fifth of U.S. electricity powers lighting in some form or other, highly efficient lighting technology can reduce emissions significantly. The U.S. Department of Energy estimates that rapid adoption of LED lighting nationwide over the next twenty years could reduce electricity demand by a full 33%, eliminating the need for forty new power plants. Because they own and operate streetlights, traffic lights, and park and athletic field lighting while illuminating their own buildings, local governments are critical to this effort.

Most responding cities also already used or planned to soon use renewable energy to meet some portion of their operating needs. Cities that own the local utility can leverage their proprietary actions to reduce not only their own emissions but also those of their residents. For example, in the last few years, Cleveland, Austin, and Los Angeles have set aggressive targets for renewable power in their energy mix. And, in 2005, Seattle City Light, a publicly owned utility, achieved net-zero emissions.

Some cities report substantial overall emissions reductions in governmental operations. Salt Lake City, for example, has reduced its corporate energy consumption by 31% since 2001. By 2007, Seattle had reduced its greenhouse gas emissions by 60% compared to 1990 levels through changes in its proprietary activities.

C. Collective Efforts Revisited

Overall, the potential collective impact of local governments’ climate change activities in the areas described above is unlikely to be either trivial or counterproductive.

Local adoption of green building programs addresses barriers to cost-effective action and targets a substantial source of U.S. emissions. Similarly, smart growth plans can reduce demand for fossil fuels from transportation to complement other policies. Both build efficiencies into the environment that will ease transition to a future carbon-constrained economy. Recycling programs stand to further reduce emissions. Methane capture relies on mature technology with proven potential to generate known amounts of power while simultaneously eliminating methane emissions. In addition to compensating for regulatory failures at the federal level and easing transition to a carbon-constrained economy under any future cap-and-trade scheme, demand reduction from local policies will also help stabilize allowance prices.

III. Coordinating Levels of Government: Towards a Model of Bidirectional Climate Change Regulation

Focusing exclusively on the size of the resource being harmed (here, the global atmosphere)—as the commonly employed matching principle and the tragedy of the commons model direct us to do—obscures the potential collective contribution of local actions to a comprehensive regime. Instead of presuming that the scale of the harm determines the possibilities for a regulatory response, looking empirically at the various causes of greenhouse gas emissions and various means of targeting these sources provides a much broader vision of the regulatory landscape. In this sense, local governments have provided a service simply by raising the profile of a set of effective measures, which nonetheless could be overlooked because of their failure to fit into common frameworks for resolving environmental problems.

Many of the local governments’ potential reductions rely on established and available technologies. The relationship between potential policies and activities that cause emissions is often well studied, and a number of these emissions reductions can be captured in a short time frame. Existing bureaucracies such as planning, waste management, and building and safety departments can implement the programs. In addition, because some local programs provide fiscal benefits, they may face fewer political hurdles than federal and state efforts to reduce emissions. Local governments can additionally provide unique regulatory tools to alter emissions patterns. They can directly reduce their own emissions while structuring the local environment to influence residents to recycle, live in efficient buildings, and get around without their cars.

Local efforts are not only bidirectional because this smallest governmental level is regulating from the bottom up, but also because their focus on reducing emissions by targeting small-scale downstream actions trickles up by reducing demand. Attacking climate change through multiple levels of government and aiming to affect the stream of greenhouse gas creation and demand bidirectionally can provide important regulatory overlap because it is unlikely that the necessary reductions will be achieved perfectly on either end. Even assuming an effective national program, local efforts will provide a complement.

To the extent the state or federal governments recognize the importance of these efforts and indeed aim to more directly regulate in areas of traditional local powers, their efforts will be most effective if they recognize several things. First, even if higher levels of government set regulatory standards in areas of traditional local power, it is very likely that local governments will remain the locus of implementation because of their existing administrative apparatus and the scale of necessary operations for distributing building and development permits, collecting waste, and performing similar functions. Top-down mandates should recognize local experience and unique regulatory tools, and therefore give local agencies substantial flexibility in the development of implementation and enforcement plans. . . Second, any standards set by higher levels of government should be floors, not ceilings, to enable nimble local governments to advance regulatory paradigms by setting more stringent targets wherever it is practically and politically feasible. Third, empirical evaluation of local powers and efforts, rather than generalizations about scale, should guide any decision to usurp local regulatory efforts. Federal policy architects will do best to recognize the benefits and empirical reality of multilevel governance.

IV. Conclusion

Because of the myriad of sources and activities that interact to produce greenhouse gases, a multilevel and bidirectional approach likely will be essential to accomplish the depth of emissions cuts necessary. The broad range of economic, political, and social activities that must be altered to sufficiently reduce greenhouse gas production will require the complementary and overlapping skills, competencies, and unique regulatory approaches that each level of government can provide. Thus, to accomplish our climate change goals we will need “all hands on deck.”

Acknowledgments:

The article that serves as the basis for this editorial benefited tremendously from several individuals’ thoughts and feedback. The full article offers a proper thank you and also provides detailed footnotes for the above claims.

Copyright © 2010 Stanford Law Review.

Katherine A. Trisolini is an Associate Professor of Law at Loyola Law School, Los Angeles and a Fellow at the UCLA School of Public Affairs Program on Local Government Climate Action Policies. She received her J.D. from Stanford Law School, an M.A. in Political Science from the University of California at Berkeley, and her B.A. from Oberlin College.

This Legal Workshop Editorial is based on the following Law Review Article: Katherine A. Trisolini, All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, 62 STAN. L. REV. 669 (2010).

  1. Manny Diaz, Mayor, Miami, Florida, Address as President of the U.S. Conference of Mayors (June 22, 2008) (transcript available at http://www.cfecoalition.org/PDFs/Mayor_Diaz_Speech.pdf).
  2. Robert N. Stavins, Addressing Climate Change with a Comprehensive U.S. Cap-and-Trade System, 24 OXFORD REV. ECON. POL’Y 298, 304 (2008).
  3. Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Change Policies, 155 U. PA. L. REV. 1961, 1976 (2007).
  4. Cary Coglianese & Jocelyn D’Ambrosio, Response, Policymaking Under Pressure: The Perils of Incremental Responses to Climate Change, 40 CONN. L. REV. 1411 (2008).
  5. REID EWING ET AL., GROWING COOLER: THE EVIDENCE ON URBAN DEVELOPMENT AND CLIMATE CHANGE 11 (2007), available at http://postcarboncities.net/files/SGA_GrowingCooler9-18-07small.pdf.

Post a Comment (all fields are required)

You must be logged in to post a comment.