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Reprinted at 23 Pace Envtl. L. Rev. 705 (2006)

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Article

Abstract

This Article explains the role that local governments have assumed in protecting the environment, explores the means by which they have obtained their authority to do so, and discusses how this enhanced municipal role should influence environmental and land use policy at the federal and state level. Part II reviews federal efforts to control nonpoint source pollution, and identifies the constraints on federal action. Among these constraints is the national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments. Part III describes how the traditional authority of localities to control land use has evolved to incorporate environmental protection standards, and how local land use agencies apply and enforce those standards. In Part IV, the various methods that state legislatures and courts have used to delegate and expand the authority of local governments to protect the environment are explored, explained, and analyzed. This Part demonstrates that the importance of controlling environmental degradation at the local level has led states to expand the range of matters that may be regulated under traditional land use authority, home rule powers, and special purpose statutes. Part V summarizes empirical research regarding local environmental laws and provides detailed illustrations of the various types of protections that municipalities have adopted. Part VI makes the case that local governments, despite their much-lamented limitations, should be full partners of the state and federal governments in the critical matter of environmental protection. Part VII argues that the advent of local environmental law is a natural and healthy response of the legal system to environmental exigencies, precipitated in part by the inertia experienced at the federal level, and that it is time to change federal and state policy to reinforce and utilize this powerful new grass-roots force.

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