Land Use Federalism's False Choice
Abstract
Debates about land use federalism — like those about federalism more broadly — often focus on whether policies and priorities ought to be set at the national or local level. But such categorical judgments about national intervention are inadequate because they obscure the diversity of mechanisms by which nationalization can and does occur. This Article draws attention to the importance of this underappreciated legislative design choice and develops a framework within which to evaluate it. This Article observes that nationalization can take the form of rules that either displace local decisionmaking or channel it, and that those rules can be implemented either by fiat or by way of incentive. These are not equivalent in terms of their effects on local democracy. Quite the contrary: the threat to the values of local democracy that motivate land use federalism arises primarily from decision-displacing fiat nationalizations — a tool that is likely unnecessary for most categories of land use goals. On the other hand, national action that channels land use decisionmaking or that incentivizes outcomes can achieve its ends while avoiding pernicious effects on local democracy. In fact, these forms of national action can even enhance local democracy. By confronting the full range of nationalizing options and accounting for their varied democratic impacts, this Article offers a solution to the federalist–nationalist dilemma in land use law, and may chart a path through the same thicket in other contexts.
