The Urban Environmental Renaissance

The Urban Environmental Renaissance

City governments were an important source of environmental protection in the United States from the 1800s until well into the 1900s. However, since Congress passed a series of landmark environmental statutes in the 1970s, scholars have primarily equated environmental law with federal law. To the extent that scholars consider subnational sources of environmental law, they typically focus on states, rather than cities. This article shines a light on the role of cities in contemporary environmental law. It argues that major U.S. cities are currently reviving cities’ historical role as leaders in environmental lawmaking and proposes mechanisms for expanding their scope to innovate within the framework that the 1970s federal environmental statutes established.

The article makes three significant contributions to existing literature. First, it resurrects the little-known history of early municipal efforts to protect their environments, which illustrates cities’ long-standing interest in environmental matters. Second, the article incorporates an original survey of environmental policies that cities have developed in recent years, which demonstrates the breadth of largely overlooked lawmaking. Third, the article offers a framework for conceptualizing the interplay between federal, state, and local laws and suggests strategies for finding greater space for municipal policy experimentation within cities’ jurisdictional authority.




For over a hundred years, cities were an important source of environmental protection in the United States. In the 1800s and early 1900s, cities arranged for the supply of drinking water for their growing populations, passed laws in an effort to keep that water clean, developed systems to manage wastewater, and enacted pioneering air pollution ordinances. States gradually assumed a greater role in environmental protection in the late nineteenth century, and then the federal government did so after World War II.[1] In the 1970s, federal authorities took over primary responsibility when Congress passed a series of landmark environmental statutes, including the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act.[2]

Since then, for almost five decades, scholars have primarily equated environmental law in the United States with federal environmental statutes and regulations. Environmental law scholarship tends to focus on the federal regulatory process, and environmental law classes teach the major federal environmental law statutes.[3] To the extent that there has been a focus on nonfederal sources of environmental law, it has been largely about the role of the states—most notably California—not cities.[4] Scholars mainly seem to pay attention to the potential to advance an affirmative environmental agenda at the local and state levels when Republican dominance in Washington leaves the federal government inhospitable to environmental protection.[5]

This article argues that major cities have a growing role to play in securing environmental protection, not just because of the current political climate in Washington, but for fundamental structural reasons. The regime of federal dominance that arose in the 1970s reflected a confluence of factors that no longer entirely apply. Nineteenth- and twentieth-century urbanization, industrialization, and suburbanization gave rise to vast air and water pollution problems that cities and states could not and would not address on their own. This was in part because the polluting industries accounted for significant portions of their economic base, and in part because the pollution often crossed municipal and state boundaries. Because this pollution was a side effect of socially useful industrial processes such as large-scale utility electricity generation, regulation necessitated trade-offs about how much pollution should be allowed given the benefits of the activities in which it was generated and the need to protect public health. Making these trade-offs required investments in scientific and economic analysis that the federal government was best able to make on behalf of the nation as a whole. Moreover, implementing the selected standards required coordinating the activities of private and public actors across multiple jurisdictions, and investing in infrastructure and pollution control equipment. In the 1970s, many U.S. cities were in economic decline, with little to spend on environmental protection as they sought to stave off creditors.[6] Given that many cities derived substantial portions of their revenues from taxing the polluting industries, they had little appetite to enact policies that could scare off such industries.[7]

While there are still powerful arguments for a robust federal floor of environmental standards, some major U.S. cities now are much better positioned than they were in the late 1960s and early 1970s to be leaders in environmental policy.[8] Major U.S. cities, especially on the coasts, now have more resources to spend on environmental protection; their populations have been growing,[9] and they are wealthier than they were in the 1960s and 1970s.[10] These cities also have powerful new incentives to focus on environmental protection. Major cities are no longer dominated by manufacturing and heavily polluting industries; innovation industries are now the economic lifeblood of the most vibrant cities in the post-industrial age. These industries, and the educated workers that they attract, are thought to value healthy environments and to be prepared to pay to enjoy them.[11]

As urban economies have evolved, there has been a flowering of local environmental initiatives in some U.S. cities, particularly during the last two decades.[12] Whereas federal and, to some extent, state environmental laws have largely regulated industrial sources of pollution such as power plants, cities have carved out a niche for themselves by regulating further downstream to reduce the demand by buildings and other consumers of polluting industrial products and services.[13] Our original survey of the environmental policies of fifteen cities indicates that contemporary cities have undertaken a number of environmental initiatives that exceed federal requirements. Cities have passed new laws to improve local air quality,[14] implemented important initiatives to clean up brownfields for redevelopment,[15] developed new parks in old waterfront and industrial areas,[16] and tried to reduce the use of cars by adding bicycle lanes and bicycle-sharing.[17] Cities have also taken a leading role in devising strategies to reduce the environmental impact of solid waste; cities started to develop recycling programs as far back as the late 1980s,[18] in the absence of any federal obligation to do so, and more recently have enacted various bans on plastic and Styrofoam products.[19]

Cities have not only developed measures for addressing local pollution problems such as poor air quality and waste from which their residents stand to benefit, but have also sought to deal with the ultimate global pollution problem, greenhouse gas (GHG) emissions. Cities have endeavored to reduce GHG emissions while federal policy on climate change has advanced (under President Obama) and retreated (under President Trump), even though the effects of local reductions could be canceled out by continuing emissions in other jurisdictions.[20] Cities across the country have passed laws mandating disclosure about the amount of energy used in buildings—a major source of GHG emissions in cities—including innovative local laws that will assign star ratings and letter grades to buildings based on their energy efficiency.[21] Washington, D.C. and New York City recently have gone further and legislated that buildings must improve their energy efficiency or reduce their carbon footprints.[22] The City of Austin, which owns its own electric utility, established a goal in 2007 of having 30 percent of Austin Energy’s electricity come from renewables by 2020 and has already exceeded that goal.[23] School districts in the Sacramento area are engaged in the biggest U.S.-based pilot of electric school buses, with the help of California state funds.[24]

These municipally driven initiatives serve at least three important functions. First, and most basically, cities’ environmental policies are materially improving the quality of the environment in the areas in which nearly two-thirds of Americans now live.[25] Second, cities’ experimentation with diverse policy instruments can serve as a testing ground for different approaches, leading to better policy development at the state and federal level.[26] Third, to the extent that municipal environmental policies lower demand for polluting products, they can help lessen the impact of the federal government’s under-regulation of major sources of pollution, such as power plants.

Despite the promise of local environmental initiatives, certain legal obstacles, especially limits on local authority established by state law, are hamstringing cities’ ambitions to pursue their environmental goals. This article argues that such obstacles should be reduced and presents some ideas for how to do so.

To be clear, we do not argue that the federal government should retreat from environmental lawmaking or that we can now rely on cities to protect us from environmental harm. Instead, our argument is that important U.S. cities are reviving local governments’ historical role as leaders in environmental protection, and that a closer look is needed at the obstacles that cities are encountering in advancing environmental protection goals.

This article proceeds as follows. Part I sets the stage for thinking about cities as environmental regulators by illustrating the foundational role they played in protecting water and air quality in the nineteenth and early twentieth centuries. It also analyzes why cities were overshadowed by the federal government and relegated to their current subordinate status under federal environmental law. Part II explains why important cities are becoming environmental leaders once again and illustrates the flowering of recent environmental initiatives at the local level through a survey of the environmental policies of fifteen large U.S. cities. Part III discusses the normative implications of the return of the city as an environmental regulator, focusing on the need to carve out additional space for cities to innovate while maintaining a solid federal floor of environmental regulation.

I. From Local to Federal Environmental Law

While environmental law is primarily equated with federal law today, for most of the nation’s history, the federal government had little role in environmental protection. Instead, that responsibility was left to local and state governments. This Part resurrects the important role that cities played in the nineteenth and first part of the twentieth century in providing environmental protection and analyzes why the federal government became the main initiator of environmental policy in the 1970s. This history underscores the potential for cities to be leaders in environmental policy, while also recognizing that cities were unable to adequately address the environmental problems stemming from mass urbanization, industrialization, and suburbanization.

A. The Original Urban Environmental Leaders

As the United States grew as an independent nation after the Revolutionary War, local governments were the main providers of environmental protection.[27] As we shall see, however, these local governments appear to have assumed this role out of necessity. Moreover, their limited jurisdictional reach and regulatory resources presented a number of challenges as they attempted to secure healthy urban environments.

Cities’ early attempts to secure safe drinking water for their inhabitants illustrate well both their pioneering role in providing environmental protection and the constraints they faced in meeting this need. As urban populations grew during the late eighteenth and early nineteenth centuries, local water became highly polluted and proved inadequate to meet local requirements.[28] Cities led the response to these shortages. Indeed, the decision to build a water supply system was often cities’ “first major undertaking . . . and the first which required a large initial outlay financed by bond issues.”[29]

Philadelphia was the first city in the United States to establish a public water supply system in 1801, after a devastating yellow fever epidemic in 1793 “shut down” the city, then “the country’s capital and busiest shipping port.”[30] In 1803, the Philadelphia City Council enacted an ordinance to protect the city’s water supply, declaring that “every person who should ‘wantonly or willfully’ throw into the basin or canal [supplying the city] any kind of filth, or should go into the water to wash or bathe, or should cause any dog or other animal to go into the water, should be fined five dollars plus costs.”[31]

It took New York City longer to establish its own water supply system and replace the polluted wells and the large pond that were the early sources of Manhattan’s drinking water with water from outside the city’s boundaries.[32] A state-appointed Board of Water Commissioners built the Croton Aqueduct, which opened to much fanfare in 1842.[33] The impetus for constructing the city-owned water supply system came from the city, and city-issued bonds paid the entire cost of building the system, which exceeded $10 million.[34] As in Philadelphia, the city also endeavored to protect its water, with the city’s Common Council passing an ordinance that “prohibited bathing or depositing of any form of rubbish or dirt in the water.”[35]

Other cities began building public water supply systems during this time as well. Thus, “[b]y 1860, the nation’s sixteen largest cities, as well as many smaller ones, had” water supply systems.[36] The increased supply of running water led to greater use of water for household and other uses.[37] Many people also took advantage of the readily available water to introduce water closets, which further increased water consumption.[38] As a result, after introducing running water, cities faced the task of devising systems to manage waste water from household water consumption and human waste from water closets, which overwhelmed the old systems of dumping waste into privy vaults and cesspools.[39] Cities responded by building sewer systems.[40] The advent of sewer systems raised new challenges for cities, not all of which they could, or would, address on their own.[41]

One such challenge was how to dispose of the raw waste conveyed in the sewer systems. Cities dumped the sewage from their systems into nearby watercourses, usually untreated.[42] This dumping created problems for downstream populations who obtained their water from the water bodies into which sewage was being dumped. The spread of typhoid prompted states to establish state boards of health starting in the late nineteenth century to regulate sewage disposal and to prohibit new sewer systems from dumping sewage into water bodies.[43] “By 1927, all but four states had boards of health with divisions of sanitary engineering” to regulate water pollution, but enforcement “was lax” and “state boards preferred” cooperating with industry.[44] Initially, cities that had invested in combined sewage systems continued to dump their sewage untreated into streams, and opted to filter their drinking water rather than treat their sewage because filtration was cheaper than treatment.[45] Filtration did nothing to help downstream users, however, and by the 1920s, sewage treatment became an established city service.[46] During the Depression, the federal government provided considerable funding to municipalities for the expansion of sewage and water supply systems, including sewage treatment plants.[47]

By the end of World War II, “industrial discharges were the greatest source of water pollution in the United States.”[48] Many states reorganized their water pollution agencies, in some cases establishing standalone agencies separate from the state board of health.[49] Although a few states developed regulations in response, regulatory enforcement continued to be lax, as state agencies and the engineers who worked in them were reluctant to take on powerful industries and municipalities.[50] As water quality deteriorated, the federal government assumed a larger role in addressing water pollution after World War II.[51]

As they were struggling to deal with managing wastewater, cities faced a new challenge in the late nineteenth and early twentieth centuries: managing air pollution.[52] Until the late nineteenth century, air pollution was regulated by the courts under the rubric of common law torts such as nuisance and trespass.[53] Between 1867, when St. Louis passed the first municipal air pollution ordinance to deal with smoke from coal,[54] and the 1950s and 1960s, when many states began passing air pollution legislation, cities and counties were the main level of government attempting to regulate air pollution.[55]

From the nineteenth century until after World War II, the primary concern of local governments regulating air pollution was the smoke from the use of coal. Coal was the main source of power in many Northeastern and Midwestern cities in this time period, leading to an increase in coal-related pollution.[56] The smoke was particularly problematic in cities using bituminous coal, such as Pittsburgh and other Midwestern cities,[57] because this type of coal is relatively soft and is associated with more local air pollution than harder, anthracite coal.[58] Influenced by the antismoke movement in London, Progressive Era reformers mobilized to abate the smoke in U.S. cities to protect public health and reduce the potential that smoke might undermine economic development.[59] These ordinances took various forms and regulated diverse sources including industry, locomotives, and home furnaces.[60] By 1920, “nearly every major American city” had passed “antismoke ordinances” and established “smoke inspection bureaus with significant administrative authority.”[61]

Municipal ordinances were initially ineffective in reducing smoke. Then, in 1937 and 1940, St. Louis passed innovative ordinances that “required both industrial and domestic sources of smoke to use either higher-grade coal or better combustion techniques such as automatic stokers.”[62] Following the passage of these ordinances, the smoke abated in St. Louis and other U.S. cities after World War II. However, improved coal combustion techniques and fuel switching from lower-grade to higher-grade coal and to natural gas are credited with much of the improvement, and the role of the municipal ordinances in promoting these changes is subject to interpretation.[63]

As the smoke receded, it became apparent that other air pollutants, some less visible than smoke, were harming public health. These proved even more challenging for local governments to overcome.[64] By 1950, there were eighty municipalities and two counties with air pollution ordinances and agencies to enforce them.[65] Yet many of the local programs lacked the resources to properly enforce anti-pollution regulations and to develop regulations to address the increasingly complex pollution problems that communities faced.[66] “In 1961, only 43% of the communities with major or moderate air pollution problems had control programs whose budget exceeded $5,000 per year.”[67] Even New York City, the nation’s most populous city, was never able to set up an effective air pollution control agency after decades of trying. Instead, “by 1966 . . . [New York City] had the worst air of any American city due to its high concentrations of invisible emissions, particularly sulfur dioxide and carbon monoxide.”[68] Local programs also tended to be staffed by mechanical engineers, who lacked “the kind of specialized scientific knowledge that was needed to deal with more sophisticated problems” than smoke.[69]

The most entrepreneurial of the local agencies seems to have been the Air Pollution Control District created by Los Angeles County in 1947 pursuant to state legislation.[70] While Los Angeles had never suffered from coal-related smoke problems because it used “natural gas and fuel,” it began experiencing severe smog problems starting in 1940.[71] The Control District innovatively regulated industrial sources as well as oil refineries and oil storage tanks, and banned the burning of trash at dumps.[72] These efforts addressed some of the causes of smog, but it persisted because of unregulated automobile emissions.[73] The Control District helped to finance research establishing the link between these emissions and smog and the Control District recommended that the state of California regulate air pollution from cars, which California began doing in the 1960s.[74]

America’s nineteenth-century cities made other investments to improve the quality of the urban environment as well. Cities built pioneering parks, an important environmental amenity. Central Park, which opened gradually starting in 1858, was “the first landscaped public park in the United States” and led to the creation of other similar urban parks in New York City and elsewhere.[75] Central Park was built at the instigation of Manhattan’s elite,[76] who had multiple motivations for establishing the park. These included emulating parks in leading European cities like London’s Hyde Park, increasing the property values of privately owned lands surrounding the park, and, lower down on the agenda, leveraging the human health benefits of parks for exercise and clean air.[77]

Around the same time period in which America’s urban elite endeavored to build new parks, the nation’s cities started to swell with refuse[78] and “garbage nuisance came to be seen as a serious environmental problem.”[79] The prevailing system of the early nineteenth century, whereby individuals were left to dispose of their garbage on their own, proved unworkable as urban areas became more densely populated and cities’ increasingly unsanitary conditions were blamed for a number of public health problems.[80] Urban inhabitants looked to their local leaders for relief.[81] In response, many local authorities developed municipal garbage collection and street cleaning services. The resulting services were far from exemplary;[82] cities relied on some of the same problematic strategies as seen in the context of wastewater management, including dumping in nearby waterways, to “solve” their solid waste challenges.[83] After prodding from local civic groups,[84] local authorities eventually began experimenting with technological solutions to the refuse problem, including incineration. But these approaches proved insufficient as well.[85] Finally, around the turn of the century, a sanitary engineer named Charles Waring, who was New York City’s street-cleaning commissioner, developed New York’s first comprehensive waste management strategy and started to bring the city’s garbage problem in check.[86] Waring’s reforms inspired other cities to improve their own waste management plans too.[87] However, it would take more than half a century following Waring’s death for the federal government to make its first serious attempt to regulate solid waste.[88]

B. The Emergence of Federal Environmental Dominance

Why were local governments displaced as the primary protectors of environmental quality, and why was environmental law so significantly federalized in the early 1970s? The just-recounted history of early municipal efforts to protect the environment provides some clues.

One reason is the perception in the 1960s and early 1970s that cities and states lacked the incentive to robustly address air and water pollution stemming from mass urbanization and industrialization.[89] From the end of World War II until 1978, manufacturing was the engine of the U.S. economy.[90] Cities and states competed to attract manufacturing and other industry, and environmental standards were one axis on which they competed.[91] If one jurisdiction required its industrial sources to reduce their pollution, it risked losing industry to others. And if the pollution crossed jurisdictional boundaries, any gains in environmental quality might be cancelled out by another jurisdiction adopting lower environmental standards.[92] Illustrating how New Jersey used low environmental standards to attract industry, environmental historian Scott Dewey recounted that in 1967, New York Senator Robert F. Kennedy took a helicopter tour of New York metropolitan area “to review the interstate air pollution situation . . . . [H]e and his companions passed over a smoke-belching factory in New Jersey with a large sign offering an unsubtle reminder of the lax state of industrial regulation in the Garden State for New York industrialists considering relocation: ‘Hoboken Welcomes Industry, Come on Over.’”[93]

In addition to their desire to attract and retain industry, city governments also lacked an incentive to control pollution because they themselves were polluters. They discharged sewage into streams[94] and contributed to air pollution by burning garbage at municipal incinerators and operating polluting buses for mass transit.[95] “A 1969 study of particulate emissions into the New York City atmosphere indicated that 19.3 percent were derived from municipal incineration and another 18.4 percent from on-site incineration, with the remainder from space heating, power generation, and industrial and mobile sources.”[96] Eliminating these harmful practices would require costly investments by cities themselves and rate hikes for electric utility customers that the utility companies likely would have blamed on local politicians.[97]

By the 1970s, when environmental law was federalized, many major U.S. cities had limited room to take steps that might alienate industry and residents. They were losing people to the suburbs; between 1950 and 1980, “[e]ighteen of the nation’s twenty-five largest cities in 1950 suffered a net loss of population.”[98] Employers also were decamping from cities, following people to the suburbs.[99] Major U.S. cities were afflicted with “fiscal, educational, racial, and housing crises . . . in the 1960s and 1970s.”[100]

The lack of local incentives to address air and water pollution led local governments to make insufficient investments in the expertise necessary to address the environmental consequences of the mass industrialization after World War II. Cities had struggled to deal with smoke in the early twentieth century, and as mentioned above, outside of a few post-World War II programs such as Los Angeles County’s, many lacked the resources and expertise to address more complicated air pollution problems such as “[t]oxic air industrial emissions—as well as sulfur dioxide, smog (ozone), carbon monoxide, and particulate matter other than smoke.”[101] Water pollution also became more complex to regulate as industries generated new forms of wastes, “including petrochemicals, pesticides, and potential radioactive materials,” some of which they dumped into municipal sewage systems.[102]

By 1970, the federal government already had a track record of investing in research into pollution.[103] It was well-positioned to undertake the additional research and analysis necessary to address pollution for the nation as a whole and avoid duplicative state and local efforts to establish standards; there were economies of scale associated with federal regulation.[104] There also may have been an expectation that the federal government would be more likely to act on the basis of scientific evidence than local and state governments. It was thought at the time that the federal government would be more responsive to environmental concerns and less beholden to polluters in setting standards than local and state governments had been to date.[105] (And, in fact, some mid-century industry groups had sought to avoid federalization precisely because they thought they had more influence at the local level than they would have federally.)[106] For all these reasons, environmentalists favored federalization.[107]

Even if cities had had stronger motivations for controlling pollution, the mismatch between the scale of the nation’s environmental problems and the authority of local and state governments to manage the sources of pollution further bolstered the case for federal regulation. The effects of this mismatch were manifest in cities’ struggles to control water pollution. In the eighteenth century, when local wells and ponds supplied drinking water, jurisdictions might have been able to control the quality of that water by regulating the use that their residents made of it as the resource was within the locality’s jurisdiction. But after cities began acquiring drinking water from sources entirely or partly outside their borders, the actions of other jurisdictions—for example, dumping sewage into shared rivers—had spillover effects that the affected localities had no legal authority to address.[108]

Cities and states encountered similar challenges in regulating inter-jurisdictional sources of air pollution. In fact, the inability of cities and states to resolve air pollution problems in major interstate metropolitan regions “became a prime justification for increased federal intervention in interstate air pollution control.”[109] For example, in the New York City metropolitan area, pollution from New Jersey’s heavy industries was a major source of air pollution and associated health problems in Manhattan and Staten Island.[110] Yet in the decades leading up to the Clean Air Act of 1970, New York and New Jersey were never able to agree on a mechanism to address the regional air pollution problem, in large measure, it seems, because New Jersey was reluctant to regulate its industries.[111] New York City and State officials appealed for federal assistance in addressing interstate air pollution in the region in the 1960s.[112]

In theory, localities and states might have negotiated agreements under which they adopted a common set of standards to protect the shared resource or in which downstream users paid upstream users not to pollute. Once the states took over primary responsibility for water pollution in the 1920s, some did negotiate interstate compacts to control the pollution of shared watercourses. For example, Connecticut, New Jersey, and New York created the Tri-State Compact in 1936 to address the condition of New York Harbor.[113] But the interstate compacts that were negotiated were insufficient; while they prohibited discharges, they did not embody a wholesale plan to reduce “municipal and industrial pollution.”[114] In other instances, cities went to court to stop others from dumping sewage into shared waters.[115] Congress also attempted to spur the states to negotiate interstate compacts to address interstate air pollution problems in the late 1960s.[116] New York, New Jersey, and Pennsylvania did attempt to develop a Mid-Atlantic States Compact to address regional air pollution problems that might have also included Delaware and Connecticut, but the initiative was never successfully brought to fruition.[117] Federal legislation held the hope of a more comprehensive resolution to the spillover problem than individual negotiations and litigation could achieve.[118]

Between 1969 and 1970, a public perception developed that there was an environmental crisis and that environmental protection could no longer be left largely to cities and states, whose efforts had yielded little improvement.[119] Environmental awareness had increased in the 1960s, stimulated in part by publications such as Rachel Carson’s Silent Spring, and more environmental groups were forming locally and nationally.[120] The first Earth Day was held in 1970, and “[o]pinion polls . . . showed a sharp increase in public concern with pollution problems.”[121] In the 1950s and 1960s, the federal role in environmental protection had increased incrementally.[122] For example, in 1965, Congress had required the federal Department of Health, Education, and Welfare to establish emission standards for new cars, and the Department established the first standards in 1966.[123] In 1967, partly at the urging of auto manufacturers who feared “chaos” if states were allowed to impose a multiplicity of emission standards and balkanize the car market, Congress expressly preempted states and local governments from establishing their own standards, creating an exception only for California to establish more stringent standards in light of its historical leadership in regulating car emissions and its distinct air pollution problems.[124] By the early 1970s, these and other incipient measures expanding the federal role were considered insufficient. Congress judged that federalization on a much grander scale was necessary to ensure that everyone would enjoy a minimum level of environmental protection.[125] Similar to civil rights laws from the 1960s, the new federal environmental laws would create mechanisms for protecting individuals across the country and step in to address state-level intransigence.[126] In striking contrast to the political polarization today between Democrats and Republicans at the federal level on environmental issues, there was bipartisan support for federalization. Both political parties supported more aggressive measures to protect the environment in the 1970s.[127]

The federalization of environmental law in the 1970s subjected states and cities to federal environmental standards, much to their annoyance at times.[128] However, cities and states were differentially affected by the federal government’s new role in setting standards. Federal law often includes provisions delegating authority to the states to implement federal objectives within their borders.[129] However, federal law does not delegate implementation authority to cities. Moreover, the federal delegation of authority to states sometimes newly empowered them vis-à-vis cities, giving states a new basis for advancing state priorities through cities. Cities are subject to federal standards administered by states, because cities operate infrastructure such as drinking water supply systems and waste water treatment facilities that are regulated by federal standards similar to other industrial pollution sources. Thus, federal environmental law has required cities to spend funds on environmental protection that they otherwise might have allocated to other local priorities.[130] For instance, in order to meet the dictates of the federal Safe Drinking Water Act of 1974, New York City had to build a $3.2 billion water filtration plant to filter water from the old Croton system,[131] to more strictly regulate land use in the vicinity of its reservoirs, to upgrade sewage treatment plants, and more.[132] Other cities have had to make similar infrastructure investments to meet federal water quality objectives embedded in the Clean Water Act, and applied to cities by states under delegated federal authority.[133]

However, federalization has not meant that there is no space for cities and states to innovate. Federal environmental law often takes the form of minimum, not uniform, standards. Exceptions to this rule, such as energy efficiency standards for appliances and emission standards for new motor vehicles, involve clear economies of scale to creating uniform national product standards; in such cases, local and state governments generally cannot exceed (or undercut) the federal standards.[134] However, outside of these contexts where federal regulations impose uniform product standards, cities and states retain authority under federal law to adopt standards that surpass federal minimums.[135] In recent years, major cities have moved beyond complying with federal standards to establish an independent role in the genesis of environmental policy. These initiatives, and the motivations that propelled them, are discussed in Part II.

II. What Cities Are Doing Now and Why

Our main argument in this paper is that urban environmental law should no longer be defined solely as what cities are doing to meet the requirements of federal environmental law. Several of the conditions that gave rise to federalization in the 1970s no longer hold true, and a number of U.S. cities are better positioned now to address environmental issues than they were in the past. Cities also have new motivations for doing so.[136]

Reflecting these changed circumstances, cities throughout the country have adopted environmental policies that go beyond what is required by federal law. This Part suggests why cities are more driven to develop environmental policies today than they were during the period in which environmental law was federalized and describes the types of initiatives they have implemented.

Overall, we see the crop of new local policies as effectively complementing, rather than competing with, federal policies. Many local efforts have focused on reducing demand for pollution by targeting groups such as land and building owners and consumers. In contrast, the federal regime has tended to focus on reducing the supply of pollution upstream by controlling the major sources of pollution, such as industrial sources, power plants, and motor vehicles.[137] Recent local policies have also largely aimed at reducing the scale and effects of global climate change, which is a problem that was not prominent when the major federal environmental statutes were drafted and which the federal government has had difficulty addressing, although progress was made in the Obama era. Thus, local initiatives can be seen as filling in gaps that the federal landscape has left open.

A. Cities’ Contemporary Motivations to Promote Environmental Protection

Broadly speaking, there are three reasons why many cities are now poised to expand their role as environmental policymakers: they have stronger economic incentives to promote environmental protection, they have more resources to invest in bureaucratic expertise, and they have new political motivations to develop environmental policies to offset slow progress and backsliding at the federal level.

Turning first to cities’ economic incentives to promote environmental protection, deindustrialization has significantly altered many cities’ economies and the interests to which municipal politicians cater. Manufacturing is no longer the engine of the U.S. economy and has declined particularly precipitously in cities.[138] Instead, service industries, particularly knowledge-intensive services that are concentrated in urban areas,[139] are now the driver of growth.[140] The businesses that are at the center of this renaissance do not fit neatly within any single sector and the class is “not easily defined.”[141] According to Enrico Moretti, a leading economist, these businesses comprise a distinctive “innovation sector,” which includes “the high-tech sector: information technology, life sciences, clean tech, new materials, robotics and nanotechnology”[142] as well as parts of non-science and engineering industries such as “entertainment, industrial design, marketing and even finance.”[143] And while only 10 percent of U.S. jobs are in the innovation sector, these jobs have significant multiplier effects, generating additional jobs.[144] The multiplier effect of high-tech jobs leads economists like Moretti to argue “that the best way for a city or state to generate jobs for less skilled workers is to attract high-tech companies that hire highly skilled ones.”[145]

Research indicates that innovation companies and their high-skilled workers value different things than the heavy industries that cities and states competed for when manufacturing drove the U.S. economy. In particular, while the latter valued low wages and minimal regulation, innovation companies and the highly skilled workers they employ value “[q]uality of life,”[146] or what urbanist Richard Florida calls “quality of place,”[147] which may include environmental amenities.[148] As a New York Times critic wrote after Amazon announced that it would locate a new headquarters in New York City, “companies like Google, Facebook and Amazon became attracted to cities like New York, Los Angeles, Seattle and Washington because these cities had already made transformative public investments in assets like culture, parks, universities and transit.”[149] In fact, in the competition that Amazon ran between cities to select a site for new headquarters, Amazon, which has its own sustainability goals,[150] specifically asked short listed cities to report on their sustainability policies and the availability of parks.[151] So while environmental protection may have been inconsistent with urban economic development in the latter nineteenth and early twentieth centuries, at least some degree of environmental protection now seems to promote economic development.[152]

Perhaps more importantly, local government officials now perceive environmental protection to be a prerequisite for economic growth.[153] For example, the authors of the 2015 “Sustainable Chicago” plan explicitly made the link between sustainability and economic growth, stating that, “[b]y addressing the goals outlined in this roadmap, Chicago will further its position as a sustainable place to live, work and play, while creating jobs and fostering growing industries.”[154] This viewpoint contrasts starkly with the tendency of local leaders in the mid-twentieth century to equate pollution with prosperity.[155]

City efforts to attract innovation industries may help explain some of the new investments that we see in building parks, revitalizing old industrial waterfront areas, and improving air quality.[156] The notion that cities would behave in this manner comports with Charles Tiebout’s famous idea that local jurisdictions compete for residents by offering different packages of public goods, including environmental goods, from which people select in accordance with their willingness to pay.[157] Of course, these initiatives might also reflect the preferences of people already living in cities, as such amenities stand to improve their quality of life, not just attract new residents. For example, the emergence of bicycle share and bicycle lanes might reflect the disproportionate share of the population of young people in cities.[158] Regardless as to which of these phenomena is a larger driver of municipal environmental policy, cities have increased their attentiveness towards environmental policy in recent years.

The second reason for cities’ new environmental prowess is closely linked to the first: as major cities have become hubs of the innovation economy, they have amassed more resources to spend on their policy goals, including environmental protection. Today, major U.S. cities bear little resemblance to the images of urban decay that dominated the scenery in the 1960s and 1970s.[159] Long gone are the days when the nation’s largest city, New York, was bankrupt in all but name and outward migration was the norm.[160] Today, New York’s economy is larger than Spain’s[161] and its population is at an all-time high.[162] Throughout the United States, workers in metropolitan areas with big cities now earn an average of thirty percent more than workers who are not in metropolitan areas.[163]

As the average urban inhabitant has become more prosperous, cities’ tax bases have expanded.[164] To return to the example of New York City, the city’s gross tax revenue increased by 62 percent between 1980 and 2017 after adjusting for inflation[165] while its population increased by only 19 percent during the same time period.[166] New York is not the only city to experience revenue increases during this time; in fact, the Urban Land Institute reports that aggregate local government-own source revenue throughout the United States increased by 80 percent between 1977 and 2015.[167]

Taking advantage of their new resources, cities, including Miami, Philadelphia, and Seattle, have opened designated offices of sustainability.[168] And as the national environmental nongovernmental organizations (NGOs) that were born in the 1960s and 1970s have grown, they have opened offices in major cities throughout the country,[169] which provides local officials with a readily accessible source of outside expertise. These large NGOs have also effectively helped mobilize local constituencies to push for policy development. Indeed, the Natural Resources Defense Council (NRDC) boasts on its website that “[i]n Los Angeles . . . our experts in energy, water, air, and land are helping develop the city’s first sustainability plan.”[170] Cities also have greater capacity in managing drinking water supplies and water pollution because federal and state regulation has forced them to invest in these areas since the 1970s.[171] The professionalization of water quality management under federal and state tutelage likely helped to create the conditions for some of the local innovations in environmental policy that we see today.

The third reason that cities are now poised to lead on environmental matters reflects the new distribution in political preferences across the United States. While both Republicans and Democrats supported stronger environmental regulations in the 1970s, today, support for environmental protection has become strongly correlated with party identification. Democrats generally support new environmental regulations, while Republicans generally favor relaxing existing regulations.[172] As urban areas are often more liberal than less densely populated parts of the country,[173] we would therefore expect the political representatives of urban areas to invest more in environmental protection than the nation as whole in order to curry favor with the local electorate. And given that the gulf between political leanings in cities and rural areas has expanded in recent decades,[174] we would also expect that the gulf between rural and urban preferences for environmental protection has expanded over that period of time.

The increasing polarization surrounding preferences for environmental protection is evident in the gridlock over environmental matters in Washington. Congress has not passed a major piece of environmental legislation since 1990, except for the 2016 reform to the Toxic Substances Control Act.[175] The major advances in federal environmental law in the interim have come through rulemaking.[176] The Obama administration in particular promulgated ambitious regulations to reduce GHG emissions from new motor vehicles and power plants, after the Senate was unable to take up legislation to reduce these emissions in 2010.[177] But rulemaking is a very slow, bureaucratic process and, as we are seeing now in the Trump era, federal rules can be repealed and replaced with less stringent rules. Thus, during the same time in which cities seem to have increased their interest in environmental protection, the federal government has proven increasingly inhospitable to the environmental agenda—except for the interlude in the Obama era when the executive branch, but not Congress, adopted policies to reduce GHG emissions.

State governments may not be much more welcoming to urban environmentalists than the federal government is. As suggested above, cities are often substantially more liberal than the states that house them, so we cannot generally expect states to fill the leadership void at the federal level.[178] In fact, the Republican Party has become more dominant in state capitals in the past twenty-five years[179] and Republicans controlled a record thirty-three governorships in 2016.[180] In New York State, for example, prior to the November 2018 elections, 92 percent of the State senators representing New York City were members of the Democratic Party, while only 49 percent of senators throughout the State were Democrats,[181] and Republicans had controlled the State Senate virtually without interruption for decades.[182] In Pennsylvania, 100 percent of state senators hailing from Philadelphia were Democrats as compared to 33 percent for the state as a whole.[183] Even in states that are traditional bulwarks of the Republican Party, we find relatively liberal urban centers. In Texas, for example, Austin, Dallas, and Houston are all headed by Democratic mayors yet the state has not had a Democratic governor since 1995.[184] Thus, local laws may be a way of realizing progressive policy preferences that have become increasingly difficult to express at the federal level, or even state levels.[185]

For all of the above reasons, many cities appear to be substantially better positioned to develop environmental regulation today than they were in the past. However, it is important to recognize that not all cities are equally well positioned to become environmental regulators or oriented to doing so. Many cities are not prospering in the postindustrial age.[186] Moreover, even the most capable cities are limited in their ability to pursue environmental regulation as cities do not have legal jurisdiction to regulate all ecologically destructive activities; to the contrary, as we discuss further in Part III, the scope of their legal authority is actually quite limited. And to the extent that cities legally can advance environmental protection, there are reasons to doubt that the current incarnation of municipal policies will live up to cities’ full potential.

For one thing, the link, or perceived link, between environmental progress and economic prosperity might limit municipal officials’ ambitions. If cities are interested in environmental policy again because they perceive it as a tool for attracting highly skilled workers and industry, then cities should act only insofar as they perceive it to be in their economic self-interest. Many of the local initiatives that we see likely can be explained as benefiting the cities that have taken them and their residents. As an example, phasing out dirty heating oils as New York City and other cities are doing improves local air quality, which improves local public health and increases real estate values.[187] The risk is that cities will only be willing to undertake changes that are cost beneficial from their perspective, and not implement more ambitious reforms that would be justified for the state, or the nation, as a whole. Doing so would involve cities conferring positive externalities on others for which cities are unlikely to be compensated.

We see some indication of the limits of local enthusiasm in the context of city climate change plans. Major cities have established ambitious targets of reducing GHG emissions by 80 percent or achieving carbon neutrality by 2050.[188] At first glance, it is puzzling that cities—or states—would commit to aggressively addressing a global problem such as climate change, given that they will incur the costs of their actions but not fully internalize the benefits; moreover, the benefits of their actions could be cancelled out by the continuing emissions of other jurisdictions.[189] There are several possible explanations for the apparent paradox. One is that while cities are taking incremental steps toward their ambitious goals, we are not aware of any city that has enacted binding measures yet that will enable it to achieve carbon neutrality or an 80 percent reduction by 2050. As discussed further in Part II.B, several cities, most notably Washington, D.C. and New York City, are considering, or have recently enacted, ambitious measures that would reduce GHG emissions from existing buildings. If these move forward as planned, they could be explained as local expressions of policy preferences for action on climate change that cannot currently be realized at the federal level. They might also reflect the co-benefits of reducing GHG emissions (Washington D.C.’s legislation is framed as a bill to improve energy efficiency),[190] or an industrial policy that could promote innovation, much as California’s bold move to reduce GHG emissions is sometimes characterized as an industrial policy.[191]

Furthermore, although important cities have become wealthier in recent years, there remain limitations on the tax bases of even the most prosperous local governments, and, as discussed below, there are often legal limits on municipalities’ abilities to raise tax revenue. Recent changes to federal tax law, which make it more difficult for city residents to deduct taxes garnered by state and local governments, may make municipalities even more hesitant than usual to enact new taxes to boost revenue for fear of driving out high-income earners.[192] So while enhanced fiscal and administrative capacities at the local level mean that some cities can be more innovative than they were in the 1960s and 1970s, it would be unreasonable to expect them to pursue anything close to the full range of tasks for which federal agencies are responsible. Cities still do not have the capacity to undertake costly risk assessments. Even if they did, it would be duplicative for each city to undertake similar risk assessments of the same chemical.[193]

Another concern is that some of the environmental policies that cities are pursuing may exclude some people, such as low-income individuals, from cities and therefore impose negative externalities on people currently living in other jurisdictions. For example, some cities have introduced mandates that new construction include solar or green roof space, which may increase the cost of new construction, and deter building in areas with high housing prices that need new construction to increase supply and bring down prices.[194] These types of local environmental regulations might be examples of new urban exclusionary policies, with similar effects as the exclusionary zoning and other land use policies that suburbs have been pursuing for decades, which limit the openness of these areas to low-income people and people of color insofar as race is correlated with income.[195]

An additional reason to be cautious about the new local interest in improving the environment to attract highly skilled workers is that it may benefit some people within cities more than others. Since the emergence of the environmental justice movement, there has been much more awareness of the inequitable distribution of undesirable land uses—toxic waste sites, landfills, waste transfer stations, power plants, and truck and bus depots—across cities, often to the detriment of communities of color and low-income people.[196] A major concern of urbanists today is that urban revival is coextensive with rising inequality within cities, as well as between them;[197] environmental policies that differentially benefit certain neighborhoods or groups of people within the city may be exacerbating these inequalities. As an example, low-income people and people of color are less likely to use the newly established municipal bicycle share programs, although there are some recent innovative programs to promote bicycle equity.[198] And while parks are often thought to provide areas for people from different racial, ethnic, and economic groups to mix, the reality is that people from certain groups may disproportionately use parks or benefit from them. Research indicates that visitors to New York City’s High Line are “overwhelmingly white” even though “nearly one third of residents in its neighborhood . . . are people of color.”[199] Environmental justice remains a live movement in postindustrial cities, and the agenda items now include not only the historical concerns that people of color and low-income populations are disproportionately burdened by harmful facilities, but also by unequal access to new urban amenities.[200] Moreover, the economic revival that many cities have experienced alongside their environmental renaissance has raised the prospects of gentrification and displacement in historically minority neighborhoods.[201] Navigating the trade-offs between displacement and new urban development, much of which is arguably beneficial from an environmental standpoint because it may reduce sprawl, has created a new web of challenges for environmental groups to sort through.[202] In short, while we urge scholars to recognize the valuable contribution that cities can make and are making, we do not in any way intend to argue that we have reached the promised land.

B. The New Wave of Urban Environmental Laws

So how exactly are cities using their enhanced capabilities to advance the environmental agenda? There are a number of continuities between the work cities are doing to promote sustainability today and their pioneering efforts in earlier centuries to make cities more livable. As before, local governments are investing in infrastructure and amenities that improve the quality of urban life. For instance, to improve water quality, cities throughout the nation have gone beyond the requirements of the federal Clean Water Act and taken a pioneering role in promoting green infrastructure,[203] which reduces the flow of polluted stormwater into waterways by capturing rain where it falls.[204] Cities are reprising their historical role by increasing investment in parks as well. For example, Chicago recently developed a one and one-half mile stretch of downtown riverfront into “Riverwalk,” a new recreation and pedestrian “multi-use” space, boasting restaurants, amenities, and even ecological benefits.[205] The spot, which has become popular among city residents and tourists alike, has generated considerable new revenue for the city.[206] In 2018 the vacancy rate for offices along the Chicago River was lower than at any point in the previous decade, while rental rates were the highest they had been in a decade.[207] Thus, once again we see cities’ investments in environmental amenities expanding an area’s economic base.

As in days past, cities are also taking steps to reduce local air pollution. Boston, New York, and Philadelphia all regulate, and in some cases ban, the use of highly polluting residual heating oils.[208] New York City’s gradual phase out of several of these fuels in six thousand older residential buildings has substantially improved local air quality.[209] A large number of cities have also adopted new or updated anti-idling ordinances during the past decade to reduce transportation-related air pollution.[210] These measures add a layer of protection that goes beyond what federal statutes require; the federal Clean Air Act does not set any specific air quality requirements for school zones,[211] yet Washington, D.C.’s anti-idling ordinance sets especially strict anti-idling restrictions near schools to protect the most vulnerable youths.[212]

Cities have been leading the fight to help adapt to climate change by investing in infrastructure to deal with increased flooding and heat. Facing rising seas, Miami has invested in a major anti-flooding project, which includes raising roads, installing pumps, and replacing sewer connections.[213] And as the California climate becomes drier, Berkeley is exploring alternative sources of water, including using reclaimed water for street cleaning.[214] To temper the urban heat island effect in the face of forecasts for blistering heat, New York City is spending millions of dollars to plant trees in neighborhoods that are most vulnerable to heat.[215] While cities’ commitments to ambitious GHG reduction targets may be surprising, given the global nature of the emissions problem, efforts to adapt to climate change are much less surprising because residents stand to benefit from continued access to drinking water and infrastructure to handle higher water levels.[216] Indeed, climate adaptation might be seen as the contemporary equivalent of the infrastructure investments, such as the construction of vast drinking water supply systems, which cities made in the nineteenth century to ensure continued urban viability.

But some things are decidedly different this time around. The environmental policies that cities are developing today emerge in the shadows of a far more robust federal policy landscape than existed when the first wave of urban environmental policies were established starting in the nineteenth century. Broadly speaking, there are two possible routes that policy-makers can take to reduce pollution: they can regulate upstream the industries that produce pollution, from electricity generation to manufacturing and agriculture, or they can regulate downstream the consumers that demand the products that industries create.[217] Since the passage of the major environmental statutes of the 1970s, the federal government has fairly comprehensively regulated pollution from industrial sources.[218] As we discuss further in Part III, cities seeking to expand their own portfolio of environmental policies have moved away from regulating industry toward targeting the behavior of individuals instead. Thus, as the federal government has increased its regulation of the supply side of the economy, local governments have been pushed toward regulating the demand side.[219] To this end, many contemporary municipal environmental policies regulate the use of polluting products by individuals—be they drivers, shoppers, or home or apartment dwellers.[220] That local governments would take the lead in regulating individual behavior makes sense given the variation in consumer behavior across the country, the lesser degree of technological expertise required to regulate individual behavior compared with large industrial sources such as power plants, and the enhanced avenues for public participation in local lawmaking processes. Local governments have also fairly aggressively regulated one of the few industries that has largely escaped federal regulation: the real estate industry.[221] But in a sense, the real estate industry is also a consumer, in that it consumes the products, such as electricity, cement, and appliances, that are made by the upstream industries that the federal statutes regulate.

Another distinctive facet of the new wave of urban environment policies is that it has a substantial focus on combating global climate change. Local governments’ emphasis on developing climate change policies is a manifestation of their gap-filling role. Climate change was not on the environmental agenda at the time that the major federal statutes were passed, and the federal government has been unable to implement a sustained response to the crisis in the time since. While the Obama administration introduced important regulations to reduce GHG reductions in light of Congressional intransigence, the Trump administration is now substantially reversing course. Faced with this reality, progressive state and local governments have stepped in.[222] Cities face significant legal constraints in tackling GHG emissions, given their limited authority over the supply side of the economy, such as electric-generating units.[223] As noted above, it remains to be seen whether they will achieve their goals. But some cities have begun to implement innovative GHG reductions policies, particularly with respect to regulating energy use in buildings.[224]

Indeed, it is in the real estate sphere, where, again, the federal government has largely been absent, that cities have arguably developed their most innovative and robust policies. The municipal focus on buildings makes sense because cities typically have considerable legal authority over buildings,[225] and because buildings are immobile (although tenants can exit if regulations become cost-prohibitive).[226] It is also logical because buildings are a major source of GHG emissions and other forms of air pollution in urban areas. Buildings account for approximately 40 percent of energy use nationwide[227] and are unlikely to account for less than that in any urban area given the reduced reliance on automobiles in densely populated areas. In Chicago and New York City, buildings account for approximately 70 percent of GHG emissions.[228] Given the outsized role that buildings play in cities’ greenhouse contributions, and cities’ leadership in regulating emissions from this sector, it makes sense to review some municipal green building policies. As will be described, cities’ policies to curtail building emissions are generally consistent with their focus on demand-side regulation; a large share of building emissions is due to electricity usage, yet cities generally cannot regulate the power plants that produce electricity. In consequence, local governments have focused on reducing demand for electricity by increasing energy efficiency.

Cities have generally developed distinctive tools for reducing emissions from new as opposed to existing buildings. Cities have required that new buildings meet green building standards that exceed state building code requirements, and in some cases that new city-owned buildings receive the U.S. Green Building Council’s “Leadership in Energy and Environmental Design” (LEED) certification. Cities also have begun to turn their attention to the energy efficiency of existing buildings, which is important because the building stock is slow to turn over.[229] There are three generations of these laws. The first, which exists in at least twelve U.S. cities, requires that large buildings benchmark their energy use, and in some cases water use, against comparable buildings and report the results to the city.[230] The benchmarking information may be publicly available from a city website. A smaller number of cities require that buildings audit their energy use periodically, such as every five or ten years, and report the results to the city.[231]

There is some evidence that benchmarking and audit requirements are driving buildings towards greater efficiency,[232] but the improvements have not been substantial enough to put cities on the path to achieve their ambitious GHG reduction targets.[233] As a result, two cities which already have the first generation of laws, Chicago and New York, have now legislated that benchmarking scores be translated into star ratings or letter grades, respectively, and conspicuously displayed to the public (“second generation laws”). Chicago required buildings to post their star rating in a prominent location beginning in 2019.[234] Starting in 2020, large buildings in New York City will be required to post these grades on the premises, much like New York City restaurants are now required to post letter grades based on health inspections.[235] The idea, borrowed from Europe, is that alerting the public to a building’s energy efficiency through a highly salient, easy-to-understand sign will be more effective in creating market incentives for building owners to invest in energy efficiency than cities collecting benchmarking information and putting it on an obscure city website.[236]

The third generation of building energy efficiency laws moves beyond informational requirements to actually require buildings to invest in energy efficiency. In December of 2018, Washington, D.C. passed an initial example of this type of legislation when it mandated that the Department of Energy and Environment establish mandatory minimum energy performance standards for large buildings.[237] In April of 2019, New York City followed suit, passing a law that caps GHG emissions from large buildings.[238] The law, known as Local Law 97 of 2019, establishes GHG emission limits for buildings with more than 25,000 square feet of space, which become more stringent with time, as well as financial penalties for properties that exceed their limit.[239] Among other novel features, the law calls for the Mayor’s Office of Sustainability to conduct a study of the potential to implement a GHG emission trading program among regulated properties, similar to a building emissions trading program that exists in Tokyo.[240] The law expressly exempts buildings with rent-regulated apartments from caps on their GHG emissions[241] due to concerns from residential tenant advocates that requiring these buildings to reduce such emissions would lead to rent increases under the existing rent stabilization framework, and thus harm housing affordability. Yet this exemption excludes the majority of multifamily residential buildings from the bill’s regulatory ambit, thus significantly weakening its potential impact.[242]

Outside of the green building sphere, cities have also used their authority to regulate development within their borders to reduce other kinds and sources of pollution as well. By encouraging dense mixed-use development around mass transit stations[243] (so-called “transit-oriented development”), cities can reduce the need to drive and therefore reduce the air pollution, including GHG emissions, that driving causes.[244] And by restricting development near waterways, cities can reduce nonpoint water pollution. Chicago has both types of policies in place; the city provides incentives for development near Chicago Transit Authority and Metra stations, including floor area and building height incentives and the elimination of the parking requirements if alternative forms of transportation are provided,[245] and limits development within the vicinity of Lake Michigan to protect the shoreline’s “special environmental” values, among other attributes.[246] (Notably, such waterfront development restrictions may be at odds with transit-oriented development policies because foreclosing development in certain areas can lead to sprawl and more driving.)[247] Cities have also used their zoning authority to restrict uses of land for the extraction or distribution of fossil fuels. Reminiscent of the bans that some localities have established on fracking within their borders, Portland, Oregon, used its zoning authority in 2016 to ban new fossil fuel infrastructure in an effort to block a new propane export terminal.[248]

To provide more detail regarding the policies that cities are developing today, we have surveyed a group of fifteen cities that are noted for being leaders in sustainability. The cities surveyed are pulled from various public lists of sustainable cities[249] because we were not able to find a single list that featured the degree of geographic diversity that we think is necessary to comprehensively survey the policies that are being developed, given that different regions of the countries face different types of challenges. To state the obvious, sea level rise is a bigger problem in Miami than Chicago and water shortages are a bigger problem in Los Angeles than Boston, so it seems important to examine cities across the country. As such, we have put together a list that incorporates four cities from the east coast, three from the heartland, three from the south, and five from the Pacific west. The cities are Austin, Boston, Chicago, Denver, Miami, Minneapolis, New York, Philadelphia, Portland, Orlando, San Diego, San Francisco, San Jose, Seattle, and Washington, D.C.

The table below presents an accounting of some of the most common policies that the surveyed cities have adopted. In keeping with our expectations, many of the most commonly identified measures regulate consumer behavior either by creating incentives for consumers to choose green products or transportation alternatives or by creating infrastructure that makes it easier for consumers to make green choices. Stated otherwise, demand side measures appear predominant. We have highlighted seven types of measures that appeared to be particularly common: (1) green building codes for new construction; (2) regulations requiring the disclosure of energy efficiency information in existing buildings; (3) land use regulations to promote density (here we include measures that strive to increase density proximate to transit sites—so-called transit-oriented development strategies—and local measures to remove single-family zoning or upzone neighborhoods to promote more and denser development in cities); (4) anti-idling regulations to improve air quality; (5) mandates that parking lot developers or owners make electric vehicle-ready spaces; (6) requirements that certain traffic lanes be set aside for bicycles and the establishment of bicycle share programs; and (7) plastic bag bans, taxes, or fees. Of the seven measures described, all but green building codes appear to target individual behaviors.

Table 1: Survey of Contemporary Urban Environmental Laws[250]

City Green Building Codes Building Energy Disclosure Measures to Increase Density* Anti-Idling Electric Vehicles Bicycle Lanes & Shares Plastics Reduction
Austin x xab xab x xb xab xa¹
Boston x xa xb xa xab xa
Chicago x xa xa x xb xab xa
Denver x xa xb x xac xab
Miami x x1 xb xab
Minneapolis x1 xa xb x xbc xab xa¹
New York x xabc xb x xabc xab xa
Orlando x1 xa xb xbc xab xab
Philadelphia x1 xa xab x xb xab
Portland x xa xab x1 xbc xab xab
San Diego x xab xb xab xab
San Francisco x xab xb xa xab x*ab
San Jose   xb X xab xa
Seattle x xab xab x1 xab xab xab
Washington D.C. x xac xb x xbc xab xab
Legend 1 = Code applies only to municipal buildings a = Bench-marking is required;
b = Audits are required;c = Mandatory reductions in GHG emissions or increases in energy efficiency
a = TOD zoning ordinances, or financial incentives;

b = Removal of single-family zoning or city-initiated policy of neighborhood upzonings to increase density and housing supply

1 = Applies to municipal fleets only a = Requirements for EV parking readiness; b = Municipal investments in charging infrastructure; c = Procurement mandate or investment in e-city fleets a = Creation of bicycle lanes; b = Creation of bicycle shares a = Tax, fee, or ban on bags; b = Restrictions on straws and/or utensils; 1 = Measure struck down by State court or preempted by State legislature

* Measures included here do not include those introduced by the state, such as the state of California, which may increase density in cities as well.

III. Giving Cities More Space to Experiment with Environmental Policy

As explained in Part II.B, innovative cities are carving out a niche in regulating consumer demand for the polluting products supplied by industries such as electricity generators and manufacturers that are subject to federal environmental regulation. Yet, state and federal laws have also stymied several prominent local efforts to reduce individuals’ demand for polluting products.[251] Cities have been blocked from incentivizing the use of more efficient heating and cooling systems in buildings,[252] incentivizing taxis to use cleaner vehicles,[253]and incentivizing shoppers to waste less plastic by imposing fees on plastic bags.[254] Cities have also been prevented from incentivizing drivers to drive less by taxing them for road use and the pollution from their vehicles.[255] This Part identifies ways to carve out more space for cities to alter environmentally damaging consumer behavior within the division of authority between the federal, state, and local governments enshrined in the 1970s federal statutes, which made the federal government a significant environmental lawmaker.

We do not seek to upend the allocation of authority agreed to in the 1970s because there are compelling reasons for maintaining a robust minimum floor of federal environmental regulation, as the history recounted in Part I suggests. At the same time, we think there would be significant benefits to increasing cities’ ability to innovate to the maximum extent that the law provides,[256] and believe that courts have sometimes interpreted the scope of residual local authority under the federal environmental statutes more narrowly than those statutes require. There may also be room to expand the scope of local environmental lawmaking authority under state law.

In thinking about how the scope for municipal innovation could be enhanced under the existing federal and state legal framework, it is important to keep in view the foundations of city authority to address environmental issues, and the thicket of legal constraints on cities enacting environmental laws. As is often repeated in judicial opinions concerning local governments’ autonomy, cities are creatures of the states[257] and the scope of their legal authority is defined by the states that house them. Cities’ ability to address environmental issues in particular is rooted in their home rule authority, which is enshrined in state constitutions or legislation,[258] or other state delegations of authority,[259] and is subject to redefinition by the states.

States’ magnanimity towards municipalities has ebbed and flowed over the years as they have granted more or less generous home rule authority, and there has always been considerable variation between the states. However, in no state is municipal home rule authority a carte blanche grant of authority.[260] Of particular import for our purposes, many states closely guard taxation authority and grant their cities limited, if any, authority to establish or raise taxes without express approval of state legislatures.[261] Cities typically have more leeway under state law to enact fees without prior state approval. Yet, as will be described, fees and taxes are not perfect substitutes. And even when cities have extensive authority under state law to initiate legislation—for example, to introduce a fee—they usually have limited immunity protecting them from state interference in their efforts,[262] as all states reserve the right to preempt local legislation in certain circumstances.[263] Recently, some state lawmakers have become less tolerant of local policy variations and more comfortable using punitive measures to force localities to conform to the preferences that dominate throughout the state.[264] Some state courts also have been narrowly reading constitutional protections for local immunity from state interference, thus expanding the scope for state lawmakers to override local preferences, including on environmental matters.[265]

Further, federal environmental law imposes a number of constraints on local authority over environmental affairs. City authority is limited by federal law because, under the Supremacy Clause, Congress can expressly or impliedly preempt local legislation in the same manner as it can preempt state legislation. While federal environmental law generally takes the form of minimum standards that cities and states can exceed, there are exceptions—governing new motor vehicles and appliances in particular—where federal standards preempt more stringent (as well as less stringent) local and state standards.[266] In a number of cases applying the provisions preempting local standards, the courts have very broadly interpreted the scope of these provisions, meaningfully curtailing the authority of cities to sway consumer demand for green products that manufacturers are already making.

In this Part, we review some cases in which we feel the judiciary has adopted an overly cramped interpretation of local authority under the federal statutes, and we urge other courts to revisit this approach. We are particularly concerned with instances in which cities have been prevented from implementing incentives for consumers to choose relatively green products among available alternatives. Following a discussion of the federal statutes, we suggest avenues for expanding the scope of local autonomy under state law such that cities can more easily price environmental externalities. As we describe, even if states cannot be persuaded to delegate greater taxation authority to cities, which is the tool scholars have traditionally called for policy-makers to use to price environmental externalities, cities may be able to accomplish some of the same objectives through their authority to implement fees. Our ideas for expanding local authority are rooted in the belief that financial incentives are powerful instruments to alter human behavior, and that cities would have more scope to affect consumer demand for polluting products if cities could put a price on using them.

A. Finding Space within Federal Law

Federal laws most constrain local lawmakers when these laws establish uniform standards and preempt lower levels of government from creating more and less stringent standards in the same domain. Uniform federal or state standards that establish a ceiling and a floor are sometimes labelled “ceiling preemption.” In contrast, when a federal or state law establishes a minimum standard through so-called “floor preemption,” local governments remain free to enact regulations that are more, but not less, stringent than the federal or state requirements.[267]

Many federal environmental statutes embody floor preemption, which in theory means that local and state governments have wide scope to experiment provided they respect minimum federal standards.[268] However, there are exceptional cases where federal environmental law establishes uniform standards that preempt additional local and state regulation. As mentioned above, only the federal government and California, if granted a waiver by EPA, are authorized to regulate emissions from new motor vehicles;[269] and only the federal government is authorized to regulate the fuel economy of new motor vehicles.[270] Similarly, only the federal Department of Energy establishes efficiency standards for many types of appliances.[271] As suggested in Part I.A, the traditional justification for uniform standards for products such as new cars and appliances is that these standards enable manufacturers to take advantage of economies of scale in production; the uniformity eliminates the need to make products that comply with conflicting governmental standards about the same product attribute.[272] Consumers benefit through lower prices for the mass-produced goods.

The case is much weaker for preempting state or local inducements to private actors to purchase “greener” models of new cars and appliances that manufacturers are already making. Because the manufacturers are already making the greener products, the state and local policies would not require the manufacturers to produce products that they are not already manufacturing, or keep the manufacturers from taking other products off the market. Nor would the states or cities require consumers to purchase the greener products, because consumers retain the option of not buying them under the inducement (albeit at a financial penalty). States and cities therefore would be merely incentivizing consumers to buy some of the manufacturers’ models over others, inducing demand for relatively green products. This should cause negligible, if any, concern about economies of scale (or negative externalities) from conflicting governmental standards. Nonetheless, in two cases, federal courts have held that state inducements to consumers to purchase existing greener products were preempted by federal environmental laws. Neither case reached the Supreme Court and there remains scope for other courts to distinguish these cases going forward. We believe that they should do so, if legal controversies arise, to preserve local authority to use voluntary incentives to encourage consumers to purchase green products—be they energy efficient windows, electric vehicles, or recycled materials—that manufacturers are already making.

In Metropolitan Taxicab Board of Trade v. City of New York (Metropolitan Taxi II),[273] the Second Circuit held that New York City rules to incentivize taxicab fleet owners to purchase more fuel-efficient vehicles were preempted by the Energy Policy and Conservation Act (EPCA). The rules were the city’s second effort to convert taxis in the city to hybrid vehicles. The same plaintiff taxi owners and fleet operators had also successfully challenged the first set of rules, which had required that taxis convert to vehicles achieving specified levels of miles per gallon by prescribed dates.[274] The district court in Metropolitan Taxi I preliminarily enjoined the mandatory rules after concluding that they were likely preempted by EPCA’s express preemption of state and local legislation which “relate[s] to fuel economy standards;”[275] the city replaced them with the rules at issue in Metropolitan Taxi II. The second set of rules sought to encourage, not mandate, conversion to hybrids by making conventional vehicles relatively less profitable.[276] The new rules increased the lease caps—the maximum amount that fleet owners can charge for leasing their taxicab licenses and vehicles—for hybrid or clean fuel vehicles and decreased the lease caps for conventional vehicles.[277] Fleet owners were still permitted to use conventional vehicles and could earn a profit (albeit a more modest one) from doing so.[278] Nevertheless, in an unusually brief decision, the Second Circuit determined that because the “lease cap” rules “draw a distinction between vehicles with greater or lesser fuel-efficiency”[279] they “related to” fuel economy standards and therefore impermissibly infringed upon the federal domain.[280]

It is far from clear that the language of EPCA’s preemption clause compelled the Second Circuit to reach this conclusion.[281] In fact, when interpreting the scope of a similar preemption provision in the Clean Air Act, the Supreme Court explicitly left open the possibility that local incentive programs for low-emitting vehicles would not constitute “standards” within the Act and could therefore escape preemption.[282] What is clear is that the outcome in the case is at odds with EPCA’s overarching purposes, which include “to conserve energy supplies through energy conservation”[283] and “to provide for improved energy efficiency of motor vehicles, major appliances, and certain other consumer products.”[284] Yet the court never considered EPCA’s purpose in determining whether hybrid incentives fell within the bounds of the Act’s preemption provision.[285] Moreover, given that the lease cap rule incentivized the purchase of a product that already existed on the market, there was no risk of forcing manufacturers to alter their production processes. This substantially undermined the economic argument for ceiling preemption because industry should have been far less burdened by divergent voluntary incentives than mandatory rules.

A New Mexico case that considered whether EPCA preempted an Albuquerque green building ordinance also led to a result that we believe should be revisited.[286] Shortly before New York City introduced its ill-fated hybrid taxi rules, Albuquerque enacted a new building code to promote the construction of more energy efficient buildings.[287] The contested building code set out several different pathways from which builders could choose to meet the code’s energy standards. There were performance-based pathways, which generally mandated that buildings meet a given level of energy efficiency overall but did not specify that individual heating ventilation and air conditioning (HVAC) appliances meet particular standards, and prescriptive pathways, which permitted builders to demonstrate compliance by installing HVAC equipment that exceeded federal minimum requirements.[288] Only builders of “small retail and office buildings” and residential homes were permitted to make use of prescriptive pathways, which were presumably less complicated to implement than the performance standards.[289]

Soon after the code was issued, an association of HVAC manufacturers and distributors challenged it, arguing that the code was preempted by EPCA.[290] Albuquerque argued in response that while the prescriptive pathways may appear to be preempted if examined in isolation, they were salvaged here by the fact that there were several alternative options available for demonstrating compliance.[291] This district court was not persuaded by the city’s claim. To the contrary, the court found no applicable precedent to indicate that a “local law is not preempted when it presents regulated parties with viable, non-preempted options.”[292] It also feared that allowing the prescriptive pathway to stand would “defeat the purpose” behind EPCA’s broad preemption provision, which included protecting appliance manufacturers from a “patchwork” of State regulations which “complicate[d] their design, production and marketing plans.”[293] For both of these reasons, the court determined that the prescriptive pathways were preempted.

The court was similarly skeptical of the performance pathways. In a particularly significant section of its decision granting a preliminary injunction against the code, the court explained that some of the code’s performance pathways appeared unlikely to meet an exception to preemption that EPCA provides for certain building codes for new construction that do not require the use of high efficiency appliances.[294] In the court’s view, these performance pathways “effectively” required the installation of high efficiency appliances because a builder who used standard efficiency appliances would have to make other modifications in order to comply with the code.[295]The court never reached a final decision on whether these performance pathways were preempted in subsequent phases of the litigation due to the plaintiffs’ failure to meet certain pleading burdens.[296] Nonetheless, the court’s willingness to equate a disincentive or penalty with a requirement is noteworthy.

As was the case with the Second Circuit’s interpretation of EPCA’s preemption clause in Metropolitan Taxi II, it is far from clear that the court was obliged to interpret inducements to use greener products as preempted. In fact, two years later, the Ninth Circuit upheld a Washington State green building code that incorporated an option to use high efficiency appliances among the available pathways for compliance against an EPCA preemption claim.[297] In the Ninth Circuit’s view, the use of high efficiency appliances is not “required,” as that term is used within the statutory exception, so long as builders can choose an alternative means of compliance.[298] Moreover, unlike the New Mexico District Court, the Ninth Circuit was willing to uphold the option of using high efficiency appliances—even though this may have been the least costly means of compliance—on the basis that any cost differential between the alternative compliance options merely incentivized, but did not compel, a particular pathway.[299] The Ninth Circuit recognized that an economic incentive to use a product is not a legal requirement do so, something that the New Mexico district court was reluctant to do.

As was the case with New York City’s incentives for hybrid taxis, Albuquerque’s building code promoted the use of products that already existed in the market. The code did not directly regulate the manufacturers, requiring, as the federal statute does, that they produce products that comply with potentially aspirational standards. It therefore did not create a risk that industry would be forced to design new products to meet conflicting regulations in different jurisdictions and seems unlikely to have imposed substantial regulatory burdens on industry.[300]

The holdings in Albuquerque and Metropolitan Taxi I & II continue to be relevant for local environmental policymaking today. As mentioned in Part II.B, cities are actively developing building codes to regulate the energy efficiency of new buildings and additions to existing buildings.[301] In crafting such requirements, cities might wish to provide builders, especially of small commercial buildings or residential homes who may have limited operational sophistication, with the option of satisfying energy efficiency targets by installing appliances that exceed federal energy efficiency standards—the very option that the New Mexico district court held to be preempted.[302]

To take another example, cities interested in electrifying vehicles might want to encourage the electrification of large privately owned fleets of vehicles, such as the vehicles used by drivers for transportation network companies like Uber and Lyft.[303] In light of the emergence of Uber and Lyft, there are now over nine times as many for-hire vehicles (FHVs) on New York City streets as taxis—107,435 licensed FHV vehicles compared with 13,587 licensed taxis.[304] The city is committed to promoting vehicle electrification,[305] and but for the case law there might be more focus in the city on the potential to promote the policy goal through the city’s extensive regulation of FHV vehicles. The city clearly cannot require the FHV vehicles to electrify without running afoul of the Clean Air Act and potentially EPCA.[306] Metropolitan Taxi II suggests that the city has limited authority to incentivize the electrification of the FHV fleet or other privately owned, highly regulated vehicle fleets in the city. In the wake of Metropolitan Taxi II, Senator Kirsten Gillibrand and Representative Jerrold Nadler introduced bills to undo the effect of the decision, but the bills never passed.[307] In the absence of legislative reversal, might there be room for distinguishing a new incentive for FHVs from the lease cap rule for taxis in Metropolitan Taxi II, and adopting a more purposive interpretation of EPCA preemption to enable New York and other cities to induce (but not require) electrification? The Supreme Court’s silence to date on whether the Clean Air Act prohibits subnational governments from voluntarily incentivizing the purchase of cleaner vehicles suggests that the option is not yet foreclosed under the Clean Air Act.[308] Moreover, the Metropolitan Taxi decisions are only binding within the Second Circuit. Other circuits remain free to interpret EPCA differently and, as we have described, there are strong grounds for them to do so. Courts might be more willing to uphold local incentives that financially reward people for buying greener products rather than penalize people for buying more polluting ones, as the rules at issue in Metropolitan Taxi IIdid by reducing the lease caps for conventional vehicles. The quantum of the economic incentive also might influence judicial understandings of whether it is preempted. While likely more effective in swaying consumer behavior, a highly valuable incentive also may be more legally vulnerable because it might be more likely to be characterized as a prohibited requirement—especially if the incentive is framed as a financial penalty for purchasing a more polluting product.

To remedy the apparent overuse of preemption in the environmental field in other contexts, a number of scholars have called on courts to adopt a stronger presumption against invalidating subnational environmental measures on the basis of implied preemption.[309] A presumption against implied preemption in environmental cases may certainly be appropriate. The problem, however, is that the statutory provisions in Metropolitan Taxi I and II and Albuquerque provided for express preemption. One option in an express preemption case is to urge the courts to adopt a more purposive approach to interpreting preemption provisions.[310] In close cases, such an approach may dispositively tip the scales toward environmental interests.[311] If the courts had insisted on greater fidelity to the overarching goals that EPCA aimed to achieve, New York City’s and Albuquerque’s use of voluntary incentives to induce demand for less-polluting products may have been allowed to stand, and cities today might have a broader set of tools to achieve their environmental goals.

B. Finding Space within State Law

As indicated in Part III, city authority to address environmental issues is rooted in state grants of authority under home rule or other provisions of state law. As much as state law often empowers cities, it also powerfully constrains them, and one way to increase the space for cities to innovate would be to reduce the thicket of constraints that state law imposes. For example, state law might be reformed to grant cities greater authority to use taxation to reduce consumer demand for polluting products and services.

Cities generally have quite limited authority under state law to raise revenue through taxes.[312] In Massachusetts, for example, cities, including Boston, must rely on property taxes and state aid for their revenues because the Massachusetts Home Rule Amendment does not empower cities to levy taxes.[313] A majority of states in the nation even impose limitations on local governments’ authority to adjust property taxes,[314] historically the largest source of local funds.[315]

While there is considerable debate about the appropriate scope of city authority over taxes,[316] there are economic arguments for cities to have greater authority to enact taxes to address environmental externalities. Indeed, prominent scholars have argued that taxes would be the best way of reducing GHG emissions specifically.[317] If drivers and building owners were taxed for the harms they impose on others by driving gasoline-fueled cars on municipally-owned roads and burning fossil fuels on-site to heat buildings, then drivers and building owners would likely reduce their driving and consumption of fossil fuels, or pay the tax if the activities were more valuable to them. In either case, the social costs of driving and fossil-fuel heating would be fully internalized. In addition, with the funds raised from the tax, local governments could devote additional spending to goals such as environmental protection, redistribution (for example, to offset any regressive impacts of the tax on low-income earners), or the reduction of other taxes, in accordance with public preferences.[318]

The limits on cities’ taxation authority have complicated some prominent municipal environmental initiatives. Comprehensive road pricing is an example of an environmental policy that New York City had to forgo, partly because of state law limitations on municipal taxation authority. Beginning as far back as the 1980s, transportation policymakers sought to reduce vehicular traffic and air pollution in Manhattan and provide a new source of funding for mass transit by charging every driver to enter the most congested part of New York City.[319] Unfortunately, efforts to advance such a policy (typically called “congestion pricing”) in New York City were repeatedly frustrated.[320] The need to obtain the support of the State Assembly, Senate, and Governor is at least partly to blame for the failures, as it provided the opponents of congestion pricing with ample veto points to thwart a policy that stood to benefit the majority of New Yorkers.[321] This was most vividly illustrated in 2007 and 2008, when then-Mayor Michael Bloomberg made congestion pricing the centerpiece of his marquee initiative to improve the sustainability of New York City known as PlaNYC. Bloomberg developed a plan that would have charged drivers eight dollars to enter Manhattan south of Sixtieth Street.[322] The plan was predicted to reduce vehicle miles traveled within parts of Manhattan by 6.8 percent[323] and would have provided an influx of capital to invest in new buses, subway upgrades, and bicycle lanes.[324] The City Council voted in favor of adopting congestion pricing by a margin of thirty to twenty.[325] Unfortunately, the State Assembly refused to bring the proposed legislation authorizing the plan to a vote due to opposition in some of the outer boroughs of the city, and so congestion pricing died.[326] In 2019, New York State finally approved a congestion pricing plan for New York City, set to take effect beginning in 2021.[327] This development marked a substantial victory for environmentalists and supporters of mass transit, to whom the funds raised from congestion pricing will be directed.[328] However, congestion pricing might have been achieved far more expeditiously if State legislation had not been required to implement it on New York City streets.

Enlarging municipal taxation authority to address more environmental externalities such as vehicular traffic would generally require affirmative changes in state legislation, or even state constitutions, if they are the source of city home rule authority and limits on it. No doubt some state lawmakers would resist such changes, which would involve a redefinition of the historical relationship of states and local governments for the benefit of local governments.[329] However, there might be a window of opportunity at the state level for such changes when state legislatures and the governor come under the control of progressive parties, as has recently happened in New York and several other states.[330]

If cities are unable to persuade state officials to expand their taxation authority, they may still be able to achieve some of their environmental goals by enacting new user fees. Like taxes, fees can be used to price environmental externalities. And, as mentioned above, many states grant municipal governments greater latitude to raise revenue through user fees than through taxes.[331]

Some cities have begun taking advantage of their authority to introduce fees for environmental ends. For example, cities throughout the country, including Philadelphia[332] and Washington, D.C.,[333] have implemented stormwater remediation fees, which require property owners to pay a fee based on an approximate amount of stormwater runoff that their properties generate.[334] A number of U.S. cities, including Boulder[335] and New York City,[336] have implemented fees for plastic bags. Los Angeles has enacted a fee on paper bags as well.[337] The question for scholars and policymakers to consider is: could fees be used more broadly to price environmental externalities? We believe there may be scope for them to do so, although there are limits to how far this authority can be stretched.

The dividing line between fees and taxes can be blurry.[338] But, in general, taxes are levied on all those within a government’s taxing authority without regard for the benefit an individual taxpayer receives, while fees are levied only upon those who avail themselves of a service in proportion to the individual benefit received.[339] As Professor Erin Scharff has observed, some charges are fairly easy to classify along these lines.[340] Property taxes, for example, which apply to every homeowner in an area, fit quite naturally within the domain of taxes, while a fee for using a public golf course is clearly a fee.[341] But many other charges seem to fit somewhere in between these two poles.

State courts have developed a variety of tests to try to distinguish fees from taxes in the difficult cases. In Texas, for example, the distinction between fees and taxes seems to rest entirely on whether the purpose for the charge is to raise revenue: so long as a charge has a regulatory purpose, it is considered a function of the city or state’s police power, rather than its taxation authority, and is therefore a fee.[342] Cities in Texas, then, may be able to address of a range of environmental externalities with fees, beyond stormwater and bag fees. For instance, Austin may be able to adopt fees on products to reflect their embedded carbon or attach a fee on the sale of fish that have not been sustainably sourced.

Many other states, however, use a multi-factor assessment to distinguish fees from taxes.[343] In these states, the opportunities for using fees may be more limited. The most significant constraint posed by the multi-factor approach is that the states that apply it tend to insist that charges be proportionate to the expenses that the government incurs in providing a given service or addressing a given harm in order to be classified as a fee.[344] Courts have not typically required an exact match between the size of the charge and the expenses incurred,[345] but a relationship of some sort is required.

The proportionality requirement may make it difficult for cities to use fees that exceed the scope of government expenditure to address a given environmental problem. This limitation would make it particularly difficult to fully price environmental harms—such as GHG pollution—that impose costs on other jurisdictions. In these cases, cities may be able to adopt a more modest fee that reflects the costs of local actions to adapt to climate change, but not the sum total of global harms that GHG emissions pose. It may thus be difficult to adopt the federal government’s social cost of carbon, which reflects global harms.[346] Cities in states that require proportionality would also presumably be prevented from using fees to discourage the purchase of products that wreak havoc entirely outside their borders, such as fish that were unsustainably harvested in the high seas, as local officials would not expend resources mitigating such harms.

Still, even in states that require proportionality, cities may have more scope to use fees to address environmental externalities than they have taken advantage of thus far. For example, one could imagine such cities adopting more fees to offset the jurisdictions’ costs in managing waste, particularly electronic waste, which poses significant environmental challenges, or even using fees to help offset the costs of infrastructure and services built to adapt to climate change. Given the urgency of subnational environmental actions in the current era, we encourage local governments to explore their ability to make broader use of their authority over environmental fees.


Important U.S. cities are now better positioned and more motivated to address environmental problems than they were in the 1970s when environmental law was significantly federalized. Although constrained by federal and state laws, cities have nonetheless begun to carve out a niche suite of policies to reduce demand for polluting products, most notably in the building sector, where cities are pioneering innovative ways of increasing energy efficiency. If cities were given more authority to use financial incentives such as taxes and other inducements, they would have additional scope to refine their regulation of demand without undercutting the benefits of federal environmental standards. Reducing consumer demand for fossil fuels in the building and transportation sectors could have a major impact on GHG emissions. In an era when the federal government is rolling back environmental standards despite rising threats from climate change, it is vital to empower cities to implement environmental protections. Some of these protections may ultimately help inform federal regulation when the federal government returns to safeguarding the environment.

Appendix A: Sources for Table 1: Survey of Contemporary Urban Environmental Laws

The research for these tables was compiled during the fall of 2018. The materials were selectively updated in the fall of 2019; however, these tables may not comprehensively reflect all policies that were adopted between the fall of 2018 and the date on which this article was published.

I. Green Building Codes

City Sources
Austin What is the Austin Energy Green Building Program?, Austin Energy Green Building, [] (describing the city’s rating system for sustainable building practices).
Boston Bos., Mass., Zoning Code art. 37 (2019) (requiring proposed projects to be LEED certifiable); Article 37 Green Building and Climate Resiliency Guidelines, Bos. Plan. & Dev. Agency, [] (further explaining and providing guidelines for the requirements of article 37).
Chicago Chicago Sustainable Development Policy, City of Chi., [] (requiring new and renovation construction projects to achieve a certain number of points by implementing various green strategies).
Denver Denver’s Green Buildings Ordinance, Denver, [] (requiring new buildings of at least 25,000 square feet to include a cool roof and one of several green infrastructure options).
Miami City of Miami, Office of Miami Sustainable Initiatives, [] (requiring new buildings greater than 50,000 square feet to be LEED-silver certified, and providing density bonuses for achieving higher levels of certification).
Minneapolis LEED Building Policy, Minneapolis Sustainability, [] (requiring new city-owned buildings to be LEED-silver certified).
New York N.Y.C., N.Y., Local Law of 2005 No. 86 (2019) (requiring projects receiving city funding to achieve a LEED-silver rating or reduce energy costs and potable water use); N.Y.C., N.Y., Local Law of 2009, No. 85 (2019) (requiring that buildings that are being renovated meet the current energy code).
Orlando Energy & Green Buildings, City of Orlando, [] (requiring new city-owned buildings to meet LEED standards).
Philadelphia Green Buildings, City of Phila., [] (requiring new city-owned buildings over 10,000 square feet to be LEED-silver certified).
Portland City of Portland – Green Building Policy and LEED Certification, DSIRE, [] (describing the city’s green building policy and LEED certification requirements).
San Diego The Green Building Program, San Diego Cty. Plan. & Dev. Servs., [] (providing incentives for green building); City of San Diego – Sustainable Building Policy, DSIRE, [] (providing regulations requiring city buildings and renovations for buildings larger than 5,000 square feet to achieve LEED-silver certification).
San Francisco San Francisco Green Building Code, S.F. Env’t, [] (requiring new construction to meet green building requirements); S.F., Cal., Dept. of Env’t Regulation No. SFE13-03-GB (2019) (requiring municipal projects to achieve LEED-gold certification).
San Jose None.
Seattle City of Seattle, Seattle Climate Action 12 (2018), [] (requiring new or renovated city-owned buildings to be LEED-gold certified and 15 percent more energy efficient than the existing energy code); id. at 10 (requiring commercial buildings of at least 50,000 square feet to “identify[] low- or no-cost building operations and maintenance improvements to improve energy and water efficiency”).
Washington D.C. DC.Gov, District’s Green Construction Code, [] (requiring new buildings to “perform as much as 30 percent more efficiently”).

II. Building Energy Disclosure

City Sources
Austin Energy Conservation Audit and Disclosure Ordinance, Austin Energy, [] (requiring energy audits and disclosures for all buildings); ECAD for Commercial Buildings, Austin Energy,[] (requiring commercial buildings of at least 10,000 square feet to benchmark and report their energy use rating annually).
Boston Building Energy Reporting and Disclosure Ordinance, City of Bos., [] (requiring large- and medium-sized buildings to disclose their energy and water use annually).
Chicago Chi., Ill., Municipal Code ch. 18, § 18-14 et seq. (2019) (requiring buildings of at least 50,000 square feet to report their benchmarking information annually, verify it every three years, and post their star scale rating prominently on the property); see also Chicago Energy Benchmarking Homepage, City of Chi.,—transparency.html [].
Denver Benchmarking, Denver Dept. of Pub. Health & Env’t, [] (requiring all buildings over 25,000 square feet to report their energy usage annually).
Miami None.
Minneapolis Minneapolis, Minn., Code of Ordinances ch. 47, § 47.190 (2019) (requiring all city-owned buildings over 25,000 square feet or commercial buildings over 50,000 square feet to report their energy usage annually); see also Buildings & Energy, Minneapolis Sustainability, [].
New York NYC Benchmarking Law, N.Y.C. Mayor’s Off. of Sustainability, [] (requiring large buildings to measure and report their energy and water use annually); LL87: Energy Audits & Retro-commissioning, N.Y.C. Mayor’s Off. of Sustainability, [] (requiring buildings over 50,000 square feet to undergo “periodic energy audit and retro-commissioning measures”); N.Y.C., N.Y., Local Law of 2019 No. 97 (2019).
Orlando Orlando, Fla., Code of Ordinances ch. 15, § 15.03 (2019); see also Building Energy and Water Efficiency Strategy, City of Orlando, [] (requiring energy audits or retro-commissioning for buildings that score under the national average, beginning in 2020).
Philadelphia Phila., Pa., ch. 9, § 9-3402 (2019); About, Philly Building Benchmarking, [] (requiring buildings of at least 50,000 square feet to report their energy and water use annually).
Portland Energy Performance Reporting Policy for Commercial Buildings, City of Portland, [] (requiring buildings of at least 20,000 square feet to report their energy use annually).
San Diego None.
San Francisco S.F., Cal., Env’t Code ch. 20 (2019),$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$anc=JD_Chapter20 [] (requiring nonresidential buildings to report energy performance annually and obtain energy efficiency audits).
San Jose None.
Seattle Seattle, Wash., Mun. Code ch. 22, § 22.920 (2019), [] (requiring benchmarking for nonresidential and multi-family buildings greater than 20,000 square feet); see also About Building Tune-Ups, Seattle.Gov, [] (requiring tune-ups for commercial buildings of at least 50,000 square feet every five years); Energy Benchmarking, Seattle.Gov, [].
Washington D.C. Energy Benchmarking Disclosure, DC.Gov, [] (requiring large buildings to report their energy and water performance annually); Bill 22-904, CleanEnergy DC Omnibus Amendment Act of 2018 § 301, D.C. Law 15-340, D.C. Official Code § 34-1431 (2019).

III. Measures to Increase Density

City Sources
Austin Austin, Tex., Code of Ordinances ch. 25-2 § 25-2-147 (2019) (establishing and defining boundaries of mapped transit-oriented development districts); Accessory Dwelling Units, Austin Texas, [] (establishing regulations for ADUs); see also Ryan Thornton, Council Passes Affordable Housing Density Bonus Program, Austin Monitor (May 10, 2019), [].
Boston Additional Dwelling Unit Toolkit, City of Bos., [] (describing the city’s ADU program).
Chicago Chi., Ill., Transit-Oriented Development (TOD) Ordinance tit. 17 (Sept. 24, 2015), [] (providing FAR, building height increases, and other incentives for development projects near transit-served locations).
Denver Accessory Dwelling Units (ADU) in West Denver, WDRC [] (describing a pilot program for homeowners to build ADUs on their property).
Miami None.
Minneapolis Sarah Mervosh, Minneapolis, Tackling Housing Crisis and Inequality, Votes to End Single-Family Zoning, N.Y. Times (Dec. 13, 2018), []; seeMinneapolis, Administrative Review for an Accessory Dwelling Unit (2019), [].
New York Sadef Ali Kully, De Blasio’s Sixth Year in Office Could Feature Three Neighborhood Rezonings, City Limits (Jan. 7, 2019), [].
Orlando Residential Development, City of Orlando, [] (describing recent updates to development standards to make it easier to build small housing units).
Philadelphia Phila., Pa., Phila. Code ch. 14, § 14-513 (2019) (establishing transit-oriented development overlay districts and their design standards); see also Jake Blumgart, Philadelphia Moves Toward Legalizing Granny Flats in Historic Buildings, Plan Philly (Aug. 23, 2019), []; Jared Brey, Council Adopts Zoning Changes Allowing More Density in Center City, Plan Philly(Oct. 15, 2015), [].
Portland CTOD, Transit-Oriented Development Strategic Plan: Metro TOD Program 5 (2011), [] (describing the city’s Metro TOD Program, which provides incentives and grants to encourage “higher-density, mixed-use projects located near transit”); Accessory Dwelling Units (ADUs), City of Portland, [] (describing allowance of ADUs).
San Diego San Diego, Cal., San Diego Mun. Code ch. 13, art. 2 (2020), (establishing urban village overlay zones, which are intended to “create a mix of land uses in a compact pattern that will reduce dependency on the automobile, improve air quality, and promote high quality, interactive neighborhoods”); Companion/Junior Units, City of San Diego, [] (describing companion and junior units, part of the city’s Housing SD initiatives).
San Francisco Citywide Accessory Dwelling Units, S.F. Planning, [] (describing the city’s ADU program, which has been citywide since 2016).
San Jose Accessory Dwelling Units (ADUs), SanJoseCA.Gov,[] (describing city eligibility for ADUs).
Seattle City of Seattle Dept. of Planning & Development, Implementing Transit Oriented Development in Seattle: Assessment and Recommendations for Action 20 (2013), [] (listing TOD overlays as one of the existing city transit-oriented development tools); Accessory Dwelling Unit, Seattle.Gov [] (describing allowances for detached ADUs); Daniel Beekman, Seattle Upzones 27 Neighborhood Hubs, Passes Affordable-Housing Requirements, Seattle Times (Mar. 18, 2019), [].
Washington D.C. Accessory Dwelling Units, DCOZ [] (describing under what conditions ADUs are permitted).

IV. Anti-Idling

City Sources
Austin Austin, Tex., Code of Ordinances art. 3, § 6-1-51 et seq. (2019) (restricting motor vehicle idling to five minutes or less when not in motion).
Boston None
Chicago Chi., Ill., Mun. Code ch. 9, § 9-80-095 (2019) (restricting diesel vehicle idling to three minutes or less within a one-hour period); see also Doing Our Share for Cleaner Air: Idling Reduction, City of Chi., [].
Denver Denver, Colo., Ordinance No. 330-90 (2019) (restricting motor vehicle idling to five minutes or less within a one-hour period).
Miami Miami, Fla., Mun. Code ch. 22.5 § 22.5-4 (2019) (restricting municipal fleets only by requiring each department to develop their own anti-idling policy).
Minneapolis Minneapolis, Minn., Code of Ordinances ch. 58 (2019) (restricting motor vehicle idling to five minutes or less within a one-hour period).
New York N.Y.C., N.Y., Admin. Code tit. 24, § 24-163 (2019); Idling Regulations, N.Y.C. Bus., [] (restricting motor vehicle idling to three minutes or less while parking, standing, or stopping).
Orlando None.
Philadelphia Phila., Pa., Air Mgmt. Reg. IX, § 3, (restricting heavy-duty diesel vehicle idling to two minutes or less for layovers).
Portland Portland, Or., Ordinance No. 182871 (2019), [] (restricting municipal diesel vehicle idling to five minutes or less, and municipal gasoline vehicle idling to three minutes or less for frequent stops and one minute or less when stopped “for a foreseeable period of time”).
San Diego None.
San Francisco None.
San Jose None.
Seattle Seattle, Wash., Exec. Order No. 2016-09 (2016), [] (restricting city vehicles from idling).
Washington D.C. D.C., D.C. Mun. Regulations ch. 20-9, § 20-900 (2019), [] (restricting motor vehicle idling to three minutes or less while parking, standing, or stopping).

V. Electric Vehicles

City Sources
Austin Plug-In Austin Electric Vehicles, Austin Energy, [] (describing the 200 charging stations established by the Plug-In Austin network).
Boston EV-Boston: Electric Vehicle Resources, City of Bos., [] (describing city policy requiring 5 percent of parking be equipped with electric vehicle chargers, and 10 percent be EV-ready in new or renovation projects).
Chicago Mayor’s Press Office, Mayor Emanuel’s Drive Electric Chicago Effort Gets $15 Million Grant for Electric Vehicles and Charging Stations (Oct. 11, 2017), [] (describing city investments in electric vehicle charging stations and an electric vehicle fleet).
Denver Jon Murray, Denver’s New Building Code Requires Garages to Support Electric Vehicles, Denver Post (Mar. 9, 2016), [] (describing requirement for new single-family homes and duplexes to have electric vehicle capability in the garages); see Electric Vehicles and Alternate Fuels in Denver, Denver Dept. of Pub. Health & Env’t, [] (describing the mayor’s commitment to deploy 200 electric vehicles in the municipal fleet by 2020).
Miami City of Miami Announces New Car Charging Station, Caribbean Today (Nov. 1, 2013), [].


Minneapolis Electric Vehicles in Minneapolis, MinneapolisMN.Gov, [] (describing city’s investment in public charging stalls); Fleet, Minneapolis Public Works, [] (describing city’s policy to green its fleet); see also Electric Vehicles in Minneapolis, Minneapolis Sustainability, [].
New York N.Y.C., N.Y., Local Law of 2013 No. 130 (2019) (requiring parking garages to include electric vehicle charging station capability); Drive Electric NYC, N.Y.C., []; Press Release, Office of the Mayor, City of New York, Leading the Charge: Mayor Announces Fast-Charging EV Hubs in All 5 Boroughs (Sept. 20, 2017), [] (describing local investments in electric vehicle charging stations).
Orlando Greenworks: Transportation, City of Orlando, [] (describing city efforts to invest in charging stations and transition its city fleet to electric vehicles).
Philadelphia Charging Up at the PHL Airport, Phila. Parking Auth., [] (describing investments in electric vehicle charging stations at the Philadelphia International Airport).
Portland Portland, Or., Implementation by City Bureaus of Policies and Programs to Keep Portland on a Path to Reduce Local Carbon Emissions 80 Percent from 1990 Levels by 2050 BCP-ENN-5.04 (2019) (directing city bureaus to replace city vehicles with electric vehicles); Andrew Theen, Electric Vehicle Charging Stations Coming to East Portland, Milwaukie, Hillsboro,Oregon Live (Dec. 5, 2018), [] (describing incoming investments in electric vehicle charging stations).
San Diego City of San Diego’s EV Charging Stations, San Diego, [] (describing city’s investments in electric vehicle charging stations).
San Francisco Press Release, Office of the Mayor, Mayor Lee Signs New Ordinance to make San Francisco Electric Vehicle Ready (Apr. 27, 2017), [] (describing city ordinance to require new buildings to have electrical vehicle capacity in twenty percent of parking spaces).
San Jose None.
Seattle Seattle Dep’t of Constr. & Inspections, 2017 Seattle Elec. Code 70-72.2 § 220.57 (2019) (establishing requirements for electric vehicle capacity for construction projects).
Washington D.C. Dist. Dep’t of Transp., Dep’t Energy Saving Initiatives 7, [] (describing past and future city plans to install public curbside electric vehicle charging stations); id. (describing electric vehicle fleet purchases and plans to expand its fleetshare program).

VI. Bicycle Lanes & Shares

City Sources
Austin Biking in Austin, Austin TX., [] (providing a map of bike lanes in the city); How Bike Share Works, Austin B-Cycle, [] (describing the city-run bike share program).
Boston Better Bike Lanes, City of Bos., [] (describing the network of bike lanes in the city); Bluebikes, [] (providing information on the city-run bike share program).
Chicago Bicycling City of Chi.,, [] (describing the 200 miles of bike lanes in the city); Divvy, [] (providing information on the city-run bike share program); see also City of Chicago Pilot Project for Dockless Bike Rental Starts Today to Serve Residents in Far South Side, City of Chi. (May 1, 2018),–dockless–bike-rental-starts-.html []; Mary Wisniewski, Chicago to Test-Drive New ‘Dockless’ Bike Share Program Starting Next Week, Chicago Tribune (Apr. 27, 2018), [].
Denver Current Projects, Bicycling in Denver, [] (describing the 130 miles of bike lanes in the city); Denver B-CYCLE, [] (providing information on a bike share program in the city, run by a nonprofit); see also David Sachs, Dockless Bike-Share is Coming to Denver Streets Through a DU Pilot, Streetsblog Denver (Feb. 26, 2018), [] (describing a dockless bike share program run by the city).
Miami Green Mobility Network, Miami’s Best by Bike Map (2015), [] (providing a map of bike lanes in the city); Citi Bike Miami, [] (providing information on the city-run bike share program).
Minneapolis Bicycling in Minneapolis, Minneapolis Pub. Works, [] (describing the 129 miles of on-street bikeways); Bike Share, Minneapolis Pub. Works, [] (describing the local bike share program, run by a nonprofit); Nice Ride, [] (providing information on the dockless bike share program).
New York Citi Bike, N.Y.C.,[] (providing information on the city-run bike share program); Winnie Hu, More New Yorkers Opting for Life in the Bike Lane, N.Y. Times (July 30, 2017), [] (describing the use of bike lanes in the city).


Orlando Bicycle Safety, City Of Orlando, [] (describing the policies for riding on green bike lanes in the city); Orlando Bike Share, City Of Orlando, [] (providing information on the city-run bike share program).
Philadelphia Streets Philadelphia, Philadelphia Bicycle Map, [] (providing a map of bike lanes in the city); About, Indego, [] (providing information on the city-run bike share program).
Portland Protected Bike Lanes, Portland Bureau of Transp., [] (describing the system of bike lanes in the city); BIKETOWN – Portland Bike Share, Portland Bureau of Transp., [] (providing information on the city-run bike share program).
San Diego Bicycling: General Information, San Diego, [] (describing the city’s efforts to improve its existing bicycle network); Motorized Bicycle and Scooter Sharing, San Diego, [] (providing information on the city’s bike and scooter share program).
San Francisco Bicycling San Francisco, SFMTA, [] (providing a map of bike lanes in the city); Bikeshare, SFMTA, [] (providing information on the city’s bike share program).
San Jose Memorandum from Jim Ortbal to the San Jose Transp. & Env’t Comm. 2 (Mar. 13, 2017), [] (describing the 285 miles of on-street bike lanes in the city); see also Lyft Rebrands Ford GoBikes as ‘Baywheels,’ Launches New Bikes in SJ, NBC Bay Area (June 11, 2019), [] (providing information on the city’s bike share program).
Seattle Seattle Department of Transportation: Protected Bike Lanes, Seattle.Gov, [] (describing the projects the city has implemented to establish protected bike lanes); Seattle Department of Transportation: Free-Floating Bike Share, Seattle.Gov, [] (providing information on the city’s privately-run bike share program).
Washington D.C. Bicycle Maps, Dist. Dep’t of Transp., [] (providing a map of bike lanes in the city); About Capital Bikeshare, Capital Bikeshare, [] (providing information on the city’s bike share program).

VII. Plastics Reduction

City Sources
Austin Austin, Tex., Code of Ordinances art. 7, § 15-6-121 et seq. (2019), (banning all single-use carryout bags); Drew Knight & Kalyn Norwood, Austin Plastic Bag Ban Sacked Following Texas Supreme Court Ruling, ABC KVUE (July 3, 2018), [] (noting that the state Supreme Court found the ban unconstitutional).
Boston Bos., Mass., Mun. Code ch. 17, § 17-20.1 et seq. (2019) (banning single-use plastic bags and establishing a charge for other checkout bags).
Chicago Chi., Ill., Mun. Code ch. 3, § 3-50 (2019) (imposing a seven-cent tax on checkout bags); see also City of Chi., Chicago Checkout Bag Tax – Frequently Asked Questions, [].
Denver None.
Miami None.
Minneapolis Emma Nelson, Legislature Blocks Plastic Bag Ban in Minneapolis, Star Tribune (May 31, 2017), [].
New York N.Y.C., N.Y., Proposed Int. No. 209-A (Apr. 27, 2016), [] (imposing a five-cent fee on carryout bags provided to customers); Jesse McKinley, Cuomo Blocks New York City Plastic Bag Law, N.Y. Times (Feb. 14, 2017), []; Cole Rosengren, New York City Council Passes Paper Bag Fee – Again – Following Plastic Ban, WasteDive (April 22, 2019), [].
Orlando Orlando, Fla., Bans Single-Use Plastics at Venues and Parks, Waste360 (June 12, 2019), [].
Philadelphia None.
Portland Portland, Or., Ordinance No. 189271 (2019) (placing restrictions on single-use plastics, including bags and serviceware).
San Diego San Diego, Cal., Ordinance No. 20720 (2019) (banning stores from providing single-use carryout bags to customers, and imposing a ten-cent charge for recyclable paper bags); see also Polystyrene Foam and Single Use Plastics Ordinance, City of San Diego, [] (restricting vendors from distributing plastic straws and utensils except upon request); Joshua Emerson Smith, San Diego Approves Ban on Plastic Bags, San Diego Union-Tribune (July 19, 2016), [].
San Francisco S.F., Cal., S.F. Env’t Code ch. 17 (2019) (banning single-use plastic bags, and imposing a ten-cent checkout bag charge for recyclable paper, compostable plastic, or reusable bags).
San Jose San Jose, Cal., Ordinance No. 29314 (2019) (banning retail establishments from providing single-use carryout bags to customers).
Seattle Seattle, Wash., Ordinance No. 125165 (2019) (banning single-use plastic carryout bags and requiring a five-cent charge for recyclable paper bags); see also Seattle, Wash., Municipal Code ch. 21, § 21.36.086 (2019) (requiring any disposable food serviceware to be compostable or recyclable); Seattle Public Utilities: Bag Requirements, Seattle.Gov, [].


Washington D.C. Skip the Bag, Save the River, D.C. Dep’t of Energy & Env’t, [] (requiring a five-cent fee for paper and plastic bags provided at check-out); Food Service Ware, D.C. Dep’t of Energy & Envt., [] (banning single-use plastic straws and stirrers).


Katrina M. Wyman is the Sarah Herring Sorin Professor of Law at NYU School of Law, where Danielle Spiegel-Feld is an Adjunct Professor and Executive Director of the Guarini Center on Environmental, Energy, and Land Use Law. The article benefitted tremendously from comments from Nestor Davidson, Clayton Gillette, Mark Izeman, Richard Lazarus, Michael Livermore, Richard Revesz, Rich Schragger, Elizabeth Stein, and Richard Stewart; and from presentations at the 2018 Property-Works-in-Progress and Future Environmental Law Professors conferences. Zoe Palenik and Sara Savarani provided excellent research assistance. The work of the editors of the California Law Review also significantly improved the article.

#_ftnref1           [1].     Martin V. Melosi, Environmental Justice, Political Agenda Setting, and the Myths of History, 12 J. Pol’y Hist. 43, 57–59 (2000) [hereinafter Melosi, Myths of History]; see also Martin V. Melosi, The Sanitary City (2008) [hereinafter Melosi, The Sanitary City]; Martin V. Melosi, Lyndon Johnson and Environmental Policy, in The Johnson Years, Volume Two: Vietnam, the Environment, and Science (Robert A. Divine ed., 1987).

#_ftnref2           [2].     James E. Krier & Edmund Ursin, Pollution & Policy: A Case Essay on California and Federal Experience with Motor Vehicle Air Pollution, 1940–1975, at 10 (1977); Jody Freeman, The Uncomfortable Convergence of Energy and Environmental Law, 41 Harv. Envtl. L. Rev. 339, 348–49 (2017).

#_ftnref3           [3].     See, e.g., John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 Harv. Envtl L. Rev. 365, 374 (2002) (“The role of local governments is only briefly mentioned in environmental law casebooks . . . . Conceptually, the role of local government is seen as that of an incidental participant in a federal system of environmental law.”); Katherine A. Trisolini. All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, 62 Stan. L. Rev. 669, 674–75 (2010) (“More broadly, local governments are largely overlooked as relevant actors in academic discussions of environmental law.”). There are notable exceptions to the general scholarly tendency to neglect the role of cities in environmental law. See, e.g., John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground (2014); Sara C. Bronin, Energy in the Ecopolis, 45 Envtl. L. Rep. 10514 (2015); Sarah Fox, Home Rule in an Era of Local Environmental Regulation, 44 Ecol. L. Q. 575 (2017); Trisolini, supra.

#_ftnref4           [4].     On California’s leadership role in reducing conventional air pollution, and, more recently, greenhouse gas emissions, from cars, see Ann Carlson, The Trump Administration’s Assault on California’s Global Climate Leadership, 112 AJIL Unbound 269 (2018); see also Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097 (2009) [hereinafter Carlson, Iterative Federalism]. As Professor Michael Livermore has observed, “[i]n the United States, decentralization is often associated with federalism and devolution of authority to the states.” Michael A. Livermore, The Perils of Experimentation, 126 Yale L.J. 636, 701 (2017) (citing Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903 (1994)).

#_ftnref5           [5].     See, e.g., Richard J. Lazarus, The Making of Environmental Law 249–50 (2004) (referring to states filling the void during the early years of the George W. Bush administration); Denise A. Grab & Michael A. Livermore, Environmental Federalism in A Dark Time, 79 Ohio St. L.J. 667 (2018) (describing the role of “blue” states in making up for the federal leadership deficit under President Trump). Richard Revesz is an exception. During the Clinton era, he published several articles underscoring the potential for state environmental regulation to develop alongside federal regulation. Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the ‘Race-to-the-Bottom’ Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210 (1992) [hereinafter Revesz, Rehabilitating Interstate Competition]; Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341 (1996) [hereinafter Revesz, Interstate Externalities]; Richard L. Revesz, The Race to the Bottom and Federalism Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535 (1997) [hereinafter Revesz, Race to the Bottom]; Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553 (2001) [hereinafter Revesz, Public Choice]; see Trisolini, supra note 3.

#_ftnref6           [6].     Melosi, The Sanitary City, supra note 1, at 212–13 (describing “fiscal woes” at the municipal level, exemplified by “New York City’s financial collapse in 1975”).

#_ftnref7           [7].     J. Peter Byrne, The Rebirth of the Neighborhood, 40 Fordham Urban L.J. 1595, 1606 (2013) (“[T]he exodus of manufacturing from cities after World War II assaulted the economic bases of cities.”).

#_ftnref8           [8].     See Gerald E. Frug & David J. Barron, City Bound: How States Stifle Urban Innovation 34 (2008) (noting that many cities have become more powerful and are in far stronger economic positions today than they were in the 1970s and 1980s “when New York City’s financial troubles were perhaps the most salient urban event”).

#_ftnref9           [9].     From 2010 to 2018, America’s largest city, New York City, led the state in population growth. See James Barron, New York City’s Population Hits a Record 8.6 Million, N. Y. Times (Mar. 22, 2018), []. This stands in stark contrast to the situation in the middle of the twentieth century when New York City and others were experiencing considerably slower growth than the surrounding suburbs. See, e.g., Benjamin Baker, Municipal Autonomy: Its Relationship to Metropolitan Government, 13 Western Pol. Q. 83, 83 (1960). San Francisco’s population also increased over 9.75 percent between 2010 and 2017, from 805,770 to 884,363. Adam Brinklow, San Francisco Population Swells to More Than 884,000, Curbed SF (Mar. 26, 2018), []. These cities’ growth is part of a larger trend from the early 2010s; data indicates that across the U.S., populations in cities were growing faster than other parts of the country. Don Lee, U.S. Population in Cities Growing Faster than in Suburbs, L.A. Times (June 28, 2012), []. But see Derek Thompson, Why Are America’s Three Biggest Metros Shrinking?, Atlantic(Sept. 9, 2019), [] (explaining the recent decline in populations in New York, Los Angeles, and Chicago). Some argue that the populations of coastal cities such as San Francisco would be increasing by even more if stringent land use regulations were not increasing the cost of housing prices. See, e.g., Christopher S. Elmendorf, Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts, 71Hastings L.J. 79 (2019).

#_ftnref10         [10].     For example, in 2018, San Francisco adopted a $11.05 billion budget, the highest in the city’s history. Dominic Fracassa, SF’s Budget Soars by $937 Million and Will Top $11 Billion for First Time, S.F. Chronicle (May 31, 2018), []. To give another example, Washington D.C.’s tax revenue increased from approximately $2.4 billion in total collections in 1995 to $7.4 billion in 2017. Government of the District of Columbia Office of the Chief Fin. Officer, D.C. Tax Facts 2018, at 41 (2018), [].

#_ftnref11         [11].     See, e.g., David Gibbs & Rob Krueger, Containing the Contradictions of Rapid Development? New Economy Spaces and Sustainable Urban Development, in The Sustainable Development Paradox: Urban Political Economy in the United States and Europe 95 (Rob Krueger & David Gibbs eds., 2007).

#_ftnref12         [12].     In a prescient 2002 article, Professor John Nolon heralded “a remarkable and unnoticed trend among local governments to adopt laws that protect natural resources.” Nolon, supra note 3, at 365. Nolon focused on the role of local governments in reining in development to address “the adverse impacts of land development and to control nonpoint source pollution.” Id. In the nearly two decades since Nolon’s article was published, local environmental protection efforts have expanded considerably beyond protecting landscapes and dealing with nonpoint pollution. We discuss a much broader range of local environmental measures than Nolon, focusing specifically on cities. We also go beyond Nolon in seeking to explain the reasons for the renewed environmental interest in cities, and to recommend changes to enable cities to pursue additional environmental reforms.

#_ftnref13         [13].     A decade ago, Professor Katherine Trisolini described the potential for cities to complement federal greenhouse gas emission reduction policies by regulating downstream segments of the economy to reduce demand, and surveyed some of the early city initiatives to lower greenhouse gas emissions. Trisolini, supra note 3, at 678, 690, 695–734, 743–44. As we indicate in Part II.B, cities have continued to introduce such downstream initiatives in the years since to reduce greenhouse gas emissions and address other environmental problems. See also Clayton Munnings et al., Pricing Carbon Consumption: Synthesizing an Emerging Trend, 19 Climate Pol’y 92 (2019) (arguing that there is an increasing international trend to regulate carbon emissions downstream).

#_ftnref14         [14].     In 2012, New York City passed a Clean Heat program that phased out the use of the dirtiest heating oils in large buildings. Jane Janeczko, New York City Air Quality the Best in 50 Years, Announces Mayor Bloomberg, HuffPost (Sept. 30, 2013), []. The Clean Heat program was implemented through “[o]ne local regulation change, one local law, and one state law,” but is widely understood to have been a local initiative, pushed by the administration of former mayor Michael Bloomberg and others at the local level. Daniel Carrión et al., Residual Inequity: Assessing the Unintended Consequences of New York City’s Clean Heat Transition, 15 Int’l J. Envtl. Res. & Pub. Health 116, 119 (2018).

#_ftnref15         [15].     Mark McIntyre, How PlaNYC Will Facilitate Brownfield Redevelopment, 54 N.Y. L. Sch. L. Rev. 431 (2009–10); Luis Inaraja Vera, Assessing the Performance of Voluntary Environmental Programs, Utah L. Rev. (forthcoming 2020).

#_ftnref16         [16].     See infra notes 205–207 and accompanying text.

#_ftnref17         [17].     See Appendix A: Sources For Table 1: Survey of Contemporary Urban Environmental Laws (VVI. Bicycle Lanes & Shares) (citing sources on bicycle lanes and bike share programs in fifteen U.S. cities). For examples of the proliferation of bike lanes and bike share programs in cities, see, e.g., Austin Bicycle Master Plan, Austin Texas, []; Bikeway Projects, Bicycling in Denver, []; Denver B-Cycle, []; Corey Kilgannon, Why 250 Miles of Bike Lanes Are Being Built, N.Y. Times (Oct. 29, 2019), []; Emma G. Fitzsimmons, New Era for Bike-Share in New York: Dockless and Electric Bikes, N.Y. Times (July 3, 2018), []; Caleb Pritchard, Council Approves Dockless Bike-Share Pilot and Expansion of Austin B-cycle, Austin Monitor (Feb. 2, 2018), [].

#_ftnref18         [18].     New York City was one of the first, if not the first, major American city to launch a recycling program, which it did in 1988. See Marjorie J. Clarke et al., Integrated Waste Management Planning and Decision-Making in New York City, 26 Resources, Conservation & Recycling 125, 132 (1999).

#_ftnref19         [19].     Bob Fredericks, City’s Styrofoam Ban Goes into Effect Jan. 1, N.Y. Post (June 13, 2018), []; Diane MacEachern, Cities Ban Styrofoam to Reduce Pollution, Moms Clean Air Force (Oct. 5, 2015), [].

#_ftnref20         [20].     Shelley Welton, Decarbonization in Democracy, 67 UCLA L. Rev. (forthcoming 2020).

#_ftnref21         [21].     See infra notes 234–236 and accompanying text.

#_ftnref22         [22].     See infra notes 237–239 and accompanying text.

#_ftnref23         [23].     Sarah Bloodworth, Austin Sees Decrease in Carbon Dioxide Emissions Despite Population Increase, Daily Texan (Mar. 27, 2017), []; see also Shelley Welton, Public Energy, 92 N.Y.U. L. Rev. 267, 332–38 (2017).

#_ftnref24         [24].     Ryan Gray, Largest U.S. Electric School Bus Pilot Comes to California, Sch. Transp. News (May 12, 2017), [].

#_ftnref25         [25].     Press Release, U.S. Census, U.S. Cities are Home to 62.7 Percent of Population, But Comprise Just 3.5 Percent of Land Area (Mar. 4, 2015), [].

#_ftnref26         [26].     Michael Burger, “It’s Not Easy Being Green”: Local Initiatives, Preemption Problems, and the Market Participant Exception, 78 U. Cin. L. Rev. 835, 855 (2010) (referring to states and localities as “laboratories for experimentation”).

#_ftnref27         [27].     James Salzman, Drinking Water: A History 61 (2017).

#_ftnref28         [28].     Id.

#_ftnref29         [29].     Melosi, The Sanitary City, supra note 1, at 21; see also Nelson Manfred Blake, Water For the Cities: A History of the Urban Water Supply Problem in the United States (1956); Edward Glaeser, Triumph of the City 97–101 (2011).

#_ftnref30         [30].     Salzman, supra note 27, at 61.

#_ftnref31         [31].     Blake, supra note 29, at 255.

#_ftnref32         [32].     Salzman, supra note 27, at 58–59, 66, 68.

#_ftnref33         [33].     Blake, supra note 29, at 138, 144.

#_ftnref34         [34].     Id. at 121–71; see especially id. at 135–42, 149–51, 163–67, 169. Notably, New York City continued expanding its water supply system after establishing the Croton reservoir, eventually developing reservoirs throughout the Catskills region as well. See generally Michael C. Finnegan, New York City’s Watershed Agreement: A Lesson in Sharing Responsibility, 14 Pace Envtl. L. Rev. 577 (1997). Other cities also had to expand the water supply systems during this time period to satisfy the needs of growing populations. SeeBlake, supra note 29, at 272–79, 285–87 (Boston, Baltimore, Philadelphia, Los Angeles).

#_ftnref35         [35].     John Duffy, A History of Public Health in New York City 398 (1968); see also Blake, supra note 29, at 256. The Common Council was the name for the city’s “governing body”; it was akin to a board of aldermen. Douglas D. Scherer, William E. Nelson, Fighting for the City: A History of the New York City Corporation Counsel, 25 Touro L. Rev. 989, 989 (2009); see also Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870, at 16 (1983) (describing the grant of power to the Common Council under the 1730 Montgomerie Charter). Although scientific understandings of water quality evolved over the nineteenth and twentieth centuries, municipal regulation of drinking water did not necessarily track emerging understandings. See, e.g., Finnegan, supra note 34, at 609–10, 615 n.220 (criticizing New York City’s failure to develop regulations to protect the safety of its source waters and reservoirs between 1905 and 1954, and the barebones regulations that the City adopted in 1954 and maintained until the 1990s).

#_ftnref36         [36].     Joel A. Tarr, The Search for the Ultimate Sink 114 (1996).

#_ftnref37         [37].     Id. Wastage of water also was common in an era “when household water meters were practically unknown.” Blake, supra note 29, at 269.

#_ftnref38         [38].     Tarr, supra note 36, at 114–15; see also Blake, supra note 29, at 269–72.

#_ftnref39         [39].     Tarr, supra note 36, at 115.

#_ftnref40         [40].     Id. at 116–17.

#_ftnref41         [41].     Id. at 117.

#_ftnref42         [42].     Id. at 121.

#_ftnref43         [43].     Id. at 122–23.

#_ftnref44         [44].     Melosi, The Sanitary City, supra note 1, at 144.

#_ftnref45         [45].     Tarr, supra note 36, at 127.

#_ftnref46         [46].     Melosi, The Sanitary City, supra note 1, at 152, 156. Notably, in some cases states legislatively required cities to treat their sewage. Id.

#_ftnref47         [47].     Id. at 137, 149.

#_ftnref48         [48].     William L. Andreen, The Evolution of Water Pollution Control in the United States – State, Local, and Federal Efforts 1789–1972: Part I, 22 Stan. Envtl. L.J. 145, 189 (2003).

#_ftnref49         [49].     Id. at 189–90.

#_ftnref50         [50].     Id. at 194–96.

#_ftnref51         [51].     Melosi, The Sanitary City, supra note 1, at 186–90.

#_ftnref52         [52].     See William L. Andreen, Of Fables and Federalism: A Re-Examination of the Historical Rationale for Federal Environmental Regulation, 42 Envtl. L. 627, 628, 639–44 (2012).

#_ftnref53         [53].     Noga Morag-Levine, Chasing the Wind: Regulating Air Pollution in the Common Law State 103 (2003); Arthur C. Stern, History of Air Pollution Legislation in the United States, 32 J. Air Pollution Control Ass’n 44, 44 (1982) (dating the first air pollution ordinances to Cincinnati and Chicago in 1881).

#_ftnref54         [54].     Morag-Levine, supra note 53, at 103 (describing “the first municipal antismoke ordinance [] passed in the United States” by St. Louis).

#_ftnref55         [55].     Stern, supra note 53, at 44; see Morag-Levine, supra note 53, at 104 (by 1920, “nearly every major American city” had passed “antismoke ordinances” and established “smoke protection bureaus with significant administrative authority”); Andreen, supra note 52, at 651.

#_ftnref56         [56].     Andreen, supra note 52, at 627–28.

#_ftnref57         [57].     Morag-Levine, supra note 53, at 103.

#_ftnref58         [58].     Id. at 102.

#_ftnref59         [59].     Morag-Levine, supra note 53, at 109 (noting that in the 1910s and 1920s, some activists tried to define smoke as “economic waste”); Frank Uekoetter, The Age of Smoke: Environmental Policy in Germany and the United States, 1880–1970, at 20–21 (2009); Andreen, supra note 52, at 640 (noting the movement for anti-smoke ordinances grew due to concerns about “the negative impact that smoky conditions would have on continued economic growth”).

#_ftnref60         [60].     Scott Hamilton Dewey, Don’t Breathe the Air: Air Pollution and U.S. Environmental Politics, 1945–1970, at 23 (2000) (describing an 1881 Chicago ordinance that declared smoke pollution a per se nuisance); id. at 31–32 (describing St. Louis’s efforts in the late 1930s to reduce smoke by prohibiting the use of soft coal in furnaces and boilers and forcing the local railroad to either burn higher grade fuel or convert to electric or diesel locomotives).

#_ftnref61         [61].     Morag-Levine, supra note 53, at 104. There were forty municipalities and one county with air pollution legislation and agencies to enforce them. Stern, supra note 53, at 44 tbl.1.

#_ftnref62         [62].     Andreen, supra note 52, at 642; see also Morag-Levine, supra note 53, at 122 (describing St. Louis’s ordinance as “in essence technology standards restricting the use of bituminous coal and requiring tall stacks”).

#_ftnref63         [63].     Compare Andreen, supra note 52, at 642–44 (attributing smoke abatement to the switch from coal to natural gas), Morag-Levine, supra note 53, at 104–22 (attributing smoke abatement to both municipal ordinances and the increased economic viability of coal alternatives), and Stern, supra note 53, at 47 (describing the proliferation of city and county air quality regulations, including St. Louis’s “exemplar” ordinance, during the early twentieth century), with Revesz, Public Choice, supra note 5, at 579 (stating that state and local governments were making “considerable strides” in addressing environmental problems before the federal government stepped up in 1970), and Dewey, supra note 60, at 27 (crediting the St. Louis ordinance as the reason that St. Louis switched to low sulfur coal). Moreover, the smoke problem did not abate everywhere after World War II. For example, it was severe in New York City after World War II. Dewey, supra note 60, at 114.

#_ftnref64         [64].     Dewey, supra note 60, at 155–56; Morag-Levine, supra note 53, at 122–23; Andreen, supra note 52, at 644 (“Even as the smoke began to clear, it was obvious that the country suffered from many other dangerous air pollutants.”).

#_ftnref65         [65].     Stern, supra note 53, at 44 tbl.1.

#_ftnref66         [66].     Andreen, supra note 52, at 647.

#_ftnref67         [67].     Id. (citing Randall B. Ripley, Congress and Clean Air: The Issue of Enforcement, 1963, in Congress & Urban Problems 224, 226 (Frederic N. Cleaveland ed., 1969)). The 1963 federal Clean Air Act significantly increased federal funding of state and local air pollution control programs and led to the creation of many more such programs. Andreen, supranote 52, at 653–55.

#_ftnref68         [68].     Dewey, supra note 60, at 156. In 1964–65, the New York City Department of Air Pollution Control spent over a million dollars on air pollution control, and Mayor John Lindsay’s administration launched additional efforts to attack air pollution with higher budgets for the Department. Id. at 128, 131–34. Despite some improvements, the City’s air quality “in 1970 remained the worst in the country.” Andreen, supra note 52, at 658 n.284.

#_ftnref69         [69].     Andreen, supra note 52, at 646–47 (citing Frank Uekoetter, The Age of Smoke: Environmental Policy in Germany and the United States, 1880–1970, at 156, 159 (2009)).

#_ftnref70         [70].     Andreen, supra note 52, at 649 (citing Dewey, supra note 60, at 43–44); see also Krier & Ursin, supra note 2, at 79–80.

#_ftnref71         [71].     Andreen, supra note 52, at 648 (citing Dewey, supra note 60, at 27).

#_ftnref72         [72].     Id. at 649 (citing Dewey, supra note 60, at 45–46).

#_ftnref73         [73].     Dewey, supra note 60, at 45.

#_ftnref74         [74].     Andreen, supra note 52, at 649–50 (citing Krier & Ursin, supra note 2). Until 1959, controlling motor vehicle pollution remained “a local responsibility” in California. Krier & Ursin, supra note 2, at 8.

#_ftnref75         [75].     Roy Rosenzweig & Elizabeth Blackmar, The Park and the People: A History of Central Park 1, 200–01 (1992); see also David Schuyler, Parks in Urban America, inOxford Research Encyclopedia of American History (2015).

#_ftnref76         [76].     Initially, the park was a city project, but conflict “between state Republicans and city Democrats” led New York State to appoint a board that chose the design for the park and oversaw its building and management until 1870, when the City regained authority over the park. Rosenzweig & Blackmar, supra note 75 at 8. New York City acquired the land for Central Park, in part using eminent domain. Id. at 7, 59–66, 77–85, 91, 96, 150, 238.

#_ftnref77         [77].     Id. at 18, 23–36, 49, 54–55, 100, 214, 297, 301.

#_ftnref78         [78].     See Martin V. Melosi, Garbage in the Cities: Refuse, Reform, and the Environment 20–21 (2005).

#_ftnref79         [79].     Id. at 17.

#_ftnref80         [80].     Id. at 17–18, 21.

#_ftnref81         [81].     Id. at 22 (quoting a 1892 article in Engineering News as stating, “When we consider that the sanitary wellbeing of two millions of people may depend upon the manner in which this refuse is disposed of, it is seen that some intelligent solution of this complex problem must be reached, and our city authorities cannot afford to allow matters to relapse . . . ”).

#_ftnref82         [82].     Id. at 28.

#_ftnref83         [83].     Id. at 32–34.

#_ftnref84         [84].     Id. at 29–38.

#_ftnref85         [85].     Id. at 38–41.

#_ftnref86         [86].     Id. at 51–63.

#_ftnref87         [87].     Id. at 24–25, 56, 63.

#_ftnref88         [88].     Id. at 24–25.

#_ftnref89         [89].     See Matthew A. Crenson, The Un-politics of Air Pollution: A Study of Non-Decisionmaking in the Cities 5 (1971) (indicating that a leading federal air pollution expert stated in testimony to Congress in 1966 that cities’ slowness to act was primarily the result of political and social obstacles, not technological difficulties). In the past few decades, scholars have expressed contrasting views about how successful local and state governments were in addressing air and water pollution before 1970. See supra note 63. However, there is no doubt that there was a “perception” in the 1960s and 1970s that states and local governments were insufficiently motivated to address air and water pollution. Andreen, supra note 52, at 633–34.

#_ftnref90         [90].     Enrico Moretti, The New Geography of Jobs 19–21 (2012).

#_ftnref91         [91].     Krier & Ursin, supra note 2, at 201 (In 1970, “there was evidence that large industries were able in some instances to pressure states into establishing permissive standards, and that states might compete for industry by setting lax requirements”).

#_ftnref92         [92].     Andreen, supra note 52, at 645 (“Manufacturing companies would also sometimes threaten to relocate their facilities should a community have the temerity to engage in regulation.”); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1212 (1977).

#_ftnref93         [93].     Dewey, supra note 60, at 167. Andreen refers to threats from “industry leaders” in the 1960s to leave jurisdictions that strictly regulated water pollution for jurisdictions that took a laxer approach. Andreen, supra note 48, at 189.

#_ftnref94         [94].     “By 1964, it was well established that combined sewer overflows (CSOs) represented a substantial pollution source nationwide.” Melosi, The Sanitary City, supra note 1, at 195.

#_ftnref95         [95].     Dewey, supra note 60, at 119, 121, 127 (referring to New York City’s Board of Transportation).

#_ftnref96         [96].     Melosi, The Sanitary City, supra note 1, at 206; see also Dewey, supra note 60, at 132. In the 1950s and 1960s, apartment building incinerators were a major source of air pollution in New York City. Id. at 124–27, 133–34.

#_ftnref97         [97].     Dewey, supra note 60, at 123.

#_ftnref98         [98].     Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States 283 (1985).

#_ftnref99         [99].     Id. at 284–85.

#_ftnref100      [100].     Id. at 301. In an article published in 1980, Professor Gerald Frug wrote that “[t]he problem of the increasing exodus of wealthier taxpayers, including businesses, from the nation’s major cities is notorious.” Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1057, 1064 (1980).

#_ftnref101      [101].     Andreen, supra note 52, at 644–45.

#_ftnref102      [102].     Melosi, The Sanitary City, supra note 1, at 197; see also id. at 140–41.

#_ftnref103      [103].     See, e.g., Andreen, supra note 52, at 651–56.

#_ftnref104      [104].     Krier & Ursin, supra note 2, at 201; see also Stewart, supra note 92, at 1212.

#_ftnref105      [105].     See James M. Fallows, The Water Lords: Ralph Nader’s Study Group Report on Industry and Environmental Crisis in Savannah, Georgia 200 (1971) (“[I]f the Federal government is so vulnerable to political pressures, it is easy to imagine how much more intense the pressure can be on state and local officials. As the story of towns like Savannah and St. Mary’s illustrates, the closer a government gets to an industry, the more deference it must show. An industry’s threat to pick up its payroll and leave weighs more heavily on a local mayor or state governor than on the Secretary of the Interior.”); see also Lazarus, supra note 5, at 92.

#_ftnref106      [106].     Crenson, supra note 89, at 72 (noting that U.S. Steel wanted East Chicago and Gary, Indiana, to adopt local environmental regulations to avoid the federal government doing so because the company thought it would have less influence over federal lawmakers than local lawmakers).

#_ftnref107      [107].     See, e.g., Andreen, supra note 48, at 156–57, 199–200; Stewart, supra note 92; A. Dan Tarlock, Environmental Law: Then and Now, 32 Wash. U. J.L. & Pol’y 1, 23 (2010). Professor Richard Revesz subsequently challenged the argument that environmental groups are more likely to prevail at the federal level. Revesz, Public Choice, supra note 5. But there was a perception in the 1960s and early 1970s that the federal government would be more responsive to environmental interests.

#_ftnref108      [108].     Melosi, The Sanitary City, supra note 1, at 187.

#_ftnref109      [109].     Dewey, supra note 60, at 158.

#_ftnref110      [110].     Id. at 158–60, 164.

#_ftnref111      [111].     Id. at 158–72.

#_ftnref112      [112].     Id. at 168; see Freeman, supra note 2, at 396 n.254 (citing Bruce M. Kramer, Transboundary Air Pollution and the Clean Air Act: An Historical Perspective, 32 Kan. L. Rev.181 (1983)) (noting that the problem of interstate air pollution was one of the motivations for the federal Clean Air Act).

#_ftnref113      [113].     Melosi, The Sanitary City, supra note 1, at 144–45.

#_ftnref114      [114].     Id. at 145.

#_ftnref115      [115].     Id. at 157.

#_ftnref116      [116].     Dewey, supra note 60, at 171.

#_ftnref117      [117].     Id. at 168–72.

#_ftnref118      [118].     Stewart, supra note 92, at 1212.

#_ftnref119      [119].     Krier & Ursin, supra note 2, at 10, 195, 201, 299–300.

#_ftnref120      [120].     Lazarus, supra note 5, at 58–59; Andreen, supra note 48, at 244–45.

#_ftnref121      [121].     Krier & Ursin, supra note 2, at 201.

#_ftnref122      [122].     Id. at 103, 136; Andreen, supra note 48, at 239–55.

#_ftnref123      [123].     Krier & Ursin, supra note 2, at 175.

#_ftnref124      [124].     Air Quality Act of 1967, Pub. L. No. 90–148, § 208, 81 Stat. 485, 501 (1967); Krier & Ursin, supra note 2, at 181–83; see also id. at 2; Currie, Motor Vehicle Air Pollution: State Authority and Federal Pre-Emption, 68 Mich. L. Rev. 1083, 1087–90 (1970). California continues to enjoy the authority to establish vehicle emission standards, if granted a waiver by EPA. 42 U.S.C. §§ 7543(a)–(b) (2018). Other states can adopt the California standards. 42 U.S.C. § 7507 (2018). There is a strong economic rationale for avoiding a multiplicity of emission standards for a nationally marketed good such as cars. Uniform standards enable manufacturers to make a single product, and thereby realize economies of scale that translate into lower prices for consumers. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. Pa. L. Rev. 1499, 1507–09 (2007); Stewart, supra note 92, at 1212.

#_ftnref125      [125].     Krier & Ursin, supra note 2, at 201 (quoting S. Comm. on Pub. Works, National Air Quality Standards Act of 1970, S. Rep. No. 91-1196, at 10–11 (1970)); see also Jedediah Purdy, The Long Environmental Justice Movement, 44 Ecology L.Q. 809, 827 (2018) (noting that Senator Edmund Muskie saw the National Ambient Air Quality Standards established by the Clean Air Act as creating a national right to clean air); Stewart, supra note 92, at 1217–19 (discussing “moral ideas and the politics of sacrifice” and noting that the idea that humans owe duties to nature supports centralization).

#_ftnref126      [126].     Thanks to Professor Richard Lazarus for emphasizing the historical relationship between the federalization of environmental law and the Civil Rights movement. For further discussion of the interplay between the two movements, see Lazarus, supra note 5, at 92; see also Purdy, supra note 125, at 825–26 (noting that Senator Muskie rhetorically linked the environmental struggle to the War on Poverty and the Civil Rights movement in speaking about the need for environmental protection); Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965, 973 (2015) (describing the ways in which the environmental movement of the 1970s drew upon the Civil Rights movement of the 1960s).

#_ftnref127      [127].     Lazarus, supra note 5, at 69 ( “The average vote in favor of major federal environmental legislation during the 1970s was 76 to 5 in the Senate and 331 to 30 in the House, suggesting a broad bipartisan consensus.”); see also id. at 75–79, 150–56; Andreen, supra note 48, at 255–56, 262–63 & n.264.

#_ftnref128      [128].     City and state governments are subject to regulation under the Clean Water Act and Safe Drinking Water Act; states but not cities are regulated parties under the Clean Air Act.

#_ftnref129      [129].     Lazarus, supra note 5, at 73–74.

#_ftnref130      [130].     Caswell F. Holloway et al., Solving the CSO Conundrum: Green Infrastructure and the Unfulfilled Promise of Federal-Municipal Cooperation, 38 Harv. Envtl. L. Rev.335, 345 (2014).

#_ftnref131      [131].     Finnegan, supra note 34, at 613 n.209.

#_ftnref132      [132].     Id. at 625–44 (describing measures to which New York City committed in an agreement with upstate communities that was intended to enable the city to avoid a federal mandate to filter its drinking water).

#_ftnref133      [133].     Brian Clark Howard, Inside D.C.’s Massive Tunnel Project, Nat’l Geographic (July 5, 2014), []; see also Holloway et al., supra note 130, at 345–46.

#_ftnref134      [134].     But see supra note 124 (discussing California’s authority to obtain a waiver to adopt higher emission standards for new cars that other states can adopt).

#_ftnref135      [135].     See, e.g., 42 U.S.C. § 7416 (2018) (preserving the authority of state and local governments to more stringently regulate emissions). State laws may restrict the ability of local governments to exceed federal minimums. See infra Part III.

#_ftnref136      [136].     Notably, cities’ resurgence as leaders in developing environmental policy is unlikely to be a response to the particularly acute environmental degradation in urban areas, because political science research indicates that people living in areas with more severe air pollution are indistinguishable from people living elsewhere with respect to their preferred level of environmental spending. Daniel J. Hopkins, The Increasingly United States: How and Why American Political Behavior Nationalized 109, 110 (2018). Thus, while extraordinary levels of pollution in urban areas may have motivated cities to take a pioneering regulatory role in the nineteenth and twentieth centuries, their leadership in the twenty-first century is most likely due to other factors.

#_ftnref137      [137].     On the division between local and federal authority to develop climate policies, see Trisolini, supra note 3, at 695–734.

#_ftnref138      [138].     For example, “[m]anufacturing as a percentage of Chicago’s workforce has been on an unabated 50-year decline.” Melissa Harris, The Future of Chicago Manufacturing? Fewer People Doing More, Chicago Tribune (Sept. 19, 2015), []. From 2001 to 2015 the employment rate in manufacturing, nationally, declined by 24.8 percent, but in the seven-county Chicago region, the decline was 32.6 percent. Greg Hinz, State’s Job Woes Start on the Factory Floor, Crain’s Chi. Bus. (Nov. 28. 2015), []. Manufacturing jobs also declined more quickly in New York City during the second half of the last century than in the nation as a whole. See Saskia Sassen, The Global City 204–08 (2001).

#_ftnref139      [139].     Bruce Katz & Julie Wagner, Brookings Inst., The Rise of Innovation Districts: The New Geography of Innovation in America (2014); see also Esteban Rossi-Hansberg et al., Cognitive Hubs and Spatial Redistribution 6 (Federal Reserve Bank of Richmond, Working Paper No. 19-16, 2019), [] (“large cities appear to . . . be . . . intensive” in “cognitive non-routine” workers). Glaeser emphasizes that when people cluster in cities, information and knowledge spread more easily, and he describes “bringing people together” as the “most basic function” of cities. Glaeser, supra note 29, at 106; see also id. at 38.

#_ftnref140      [140].     Moretti, supra note 90, at 12, 23; see also Glaeser, supra note 29, at 27–29; Alexandra L. Cermeño, Service Labour Market: The Engine of Growth and Inequality, Vox(July 12, 2015), [].

#_ftnref141      [141].     Moretti, supra note 90, at 48.

#_ftnref142      [142].     Id.

#_ftnref143      [143].     Id. at 53.

#_ftnref144      [144].     Moretti estimates that “for each new high-tech job in a metropolitan area, five additional local jobs are created outside of high-tech in the long run,” as contrasted with 1.6 additional jobs for each new manufacturing job. Id. at 60–61. High-tech jobs generate greater multipliers because high-tech workers are better paid than manufacturing workers, and high-tech companies tend to cluster so attracting one high-tech firm should attract others. Id.

#_ftnref145      [145].     Id. at 13; see also Enrico Moretti, Does New York Still Have A Future in Tech?, N.Y. Times (Feb. 20, 2019), [] (“Once a city attracts some innovative workers and companies, its ecosystem changes in ways that make it even more attractive.”).

#_ftnref146      [146].     Gibbs & Krueger, supra note 11, at 101; see also id. at 100.

#_ftnref147      [147].     Richard Florida, The Rise of the Creative Class Revisited 280 (2012).

#_ftnref148      [148].     Rebecca Diamond, The Determinants and Welfare Implications of US Workers’ Diverging Location Choices by Skill: 1980, Am. Econ. Rev. 479 (2006) (including government spending on parks and air quality among the amenities influencing the migration decisions of college graduates); see also Florida, supra note 147, at 301 (referring to a survey which led Florida to conclude that “[t]he most highly valued attributes of cities . . . [are] a place’s social and cultural amenities, its friendliness, and its natural and physical beauty”).

#_ftnref149      [149].     Michael Kimmelman, Amazon’s HQ2 Will Benefit From New York City. But What Does New York Get?, N.Y. Times (Nov. 12, 2018), []. Amazon ultimately cancelled its planned headquarters in New York City following political opposition. See Amazon Pulls Out of its New York Headquarters, Economist (Feb. 14, 2019), []. Opponents of the new headquarters raised a number of objections, but certain tax breaks New York State offered proved particularly controversial. Id.

#_ftnref150      [150].     Sustainability, Amazon, [].

#_ftnref151      [151].     Karen Weise, High-Tech Degrees and the Price of an Avocado, N.Y. Times (Dec. 13, 2018), [] (containing report with data regarding sustainability policies).

#_ftnref152      [152].     The contemporary interest in sustainability of high-value companies such as Amazon and highly paid workers is consistent with the hypothesis that wealth is associated with stronger support for environmental protection. See Sandra T. Marquart‐Pyatt, Are There Similar Sources of Environmental Concern? Comparing Industrialized Countries, 89 Soc. Sci. Q. 1312, 1323 (2008). But see Ronald Ingelhart, Public Support for Environmental Protection: Objective Problems and Subjective Values in 43 Societies, 28 Pol. Sci. & Pol. 57 (1995) (noting high support for environmental protection in low-income countries that are in the early stages of industrialization).

#_ftnref153      [153].     Holloway et al., supra note 130, at 343; see also Keith Schneider, Salt Lake City is Finding a Payoff in Conservation, N.Y. Times (Nov. 7, 2007), [] (“Environmental policy has emerged as an organizing principle of economic growth at the metropolitan level in America.”). Other scholars have also noted that cities pursue quality-of-life improvements in order to compete for residents and businesses. See, e.g., Paul E. Peterson, City Limits 144 (1981). City officials may overestimate the extent to which their policy choices actually influence their cities’ economic development. See generally Richard Schragger, City Power: Urban Governance in a Global Age (2016). But the fact they believe such policies have this effect may still be a powerful motivator for environmental policy. Indeed, Gerald Frug and David Barron have characterized the “basic objective” of local cities that want to be global leaders as being to “make the city a desirable place for international financial institutions, creative entrepreneurs, and the attendant services (law firms, accounting firms, and consultants) to locate.” Frug & Barron, supra note 8, at 146.

#_ftnref154      [154].     City of Chi., Office of the Mayor, 2015 Sustainable Chicago: Action Agenda (2015), [].

#_ftnref155      [155].     Crenson, supra note 89, at 61; Joan Didion, South and West 70 (2017) (“We got a pollution count in Birmingham now, which I guess is a sign of progress.”).

#_ftnref156      [156].     New York pledged to remake the Queens waterfront as part of its bid to host a new Amazon headquarters in Long Island City. J. David Goodman, Amazon is Getting at Least $1.7 Billion to Come to Queens. Now Comes the Fight Over Whether It’s Worth It, N.Y. Times (Nov. 13, 2018), [].

#_ftnref157      [157].     Charles M. Tiebout, A Pure Theory of Local Expenditure, 64 J. Pol. Econ. 416 (1956); see also Stewart, supra note 92, at 1210 (“[D]ecisionmaking by state and local governments can better reflect geographical variations in preferences.”).

#_ftnref158      [158].     Glaeser, supra note 29, at 166 (noting the relative youth of urban populations); see also Joel Kotkin, The Human City: Urbanism for the Rest of Us 17 (2016) (“By 2011, people in their 20s constituted roughly one-quarter of residents in the urban cores but only 14 percent or less of those who lived in suburbs, where the bulk of people go as they enter the age of family formation.”).

#_ftnref159      [159].     However, there are significant variations between cities, with some cities doing much better than others. Richard Florida, The New Urban Crisis: How Our Cities Are Increasing Inequality, Deepening Segregation, and Failing the Middle Class—and What We Can Do About It xvii–xviii (2017).

#_ftnref160      [160].     See Peterson, supra note 153, at 187–88. Other major American cities also experienced substantial population losses during this time period. See supra note 98 and accompanying text.

#_ftnref161      [161].     Benjamin R. Barber, Cool Cities: Urban Sovereignty and the Fix for Global Warming 25 (2017).

#_ftnref162      [162].     Barron, supra note 9. New York City accounted for 95 percent of New York State’s growth between 2010 and 2017. Id.

#_ftnref163      [163].     Glaeser, supra note 29, at 6.

#_ftnref164      [164].     New York City, to give one example, is home to an increasingly wealthy population, which increases the City’s tax base. Fiscal Pol’y Inst., New York City Taxes—Trends, Impacts and Priorities for Reform 3 (2014), (“[T]ax data show that the number of New York City households with incomes of $1 million or more rose much faster between 2000 and 2011 than in the U.S. as a whole.”). Of course, not all cities have seen their economic fortunes improve. See Michelle Wilde Anderson, The New Minimal Cities, 123 Yale L.J. 1118 (2014).

#_ftnref165      [165].     N.Y.C. Indep. Budget Off., New York City Tax Effort: Historical Tables tbl.4 (2018), [] (click on “tables and charts” in the first sentence to download; then view tab T4).

#_ftnref166      [166].     New York City, New York Population 2019, World Population Rev., []. Notably, recent numbers suggest that this upward trend may be stalling, or even reversing. See Alexandre Tanzi, New York City’s Population is Shrinking: Demographic Trends,Bloomberg (Apr. 18, 2019), [].

#_ftnref167      [167].     This calculation is pulled from data provided by the Urban Land Institute. See The Urban Institute-Brookings Inst. Tax Policy Ctr. Annual Survey of State and Local Government Finances, Total Government Revenues, 1977–2015 (2017), [] (data compiled from the State & Local Government Finance Data Query System, Urb. Land Inst., Note that we have used an inflation adjustment calculator to derive the percent increase in real dollars.

#_ftnref168      [168].     See Office of Sustainability, Austin Texas, []; City of Austin, Office of Sustainability(2018), []; Office of Sustainability, Staff, Denver, []; Office of Miami Sustainable Initiatives, City of Miami, []; Sustainability, Minneapolis Sustainability, []; City of Minneapolis Sustainability Office, Clean Energy Project Builder, []; About, NYC Mayor’s Office of Sustainability, []; Office of Sustainability & Resilience, City of Orlando,; []; What We Do, City of Philadelphia Office of Sustainability, []; Philadelphia Office of the Mayor, Philadelphia Workforce Profile Report 9 (2016), []; Office of Sustainability & Environment, Seattle.Gov, []; # of City of Seattle Employees by Department, Seattle.Gov, [].

#_ftnref169      [169].     The Natural Resources Defense Council has offices in Washington, D.C., New York City, Chicago, San Francisco, Bozeman, and Santa Monica. Contact Us, Nat. Resources Def. Council, [].

#_ftnref170      [170].     Build Sustainable Cities, Nat. Resources Def. Council, []; see also New York, Nat. Resources Def. Council, [] (explaining similar efforts by the NRDC in New York).

#_ftnref171      [171].     Holloway et al., supra note 130, at 344, 346–47; see also Carlson, Iterative Federalism, supra note 4, at 1101–02 (stating that federal regulation contributes to state innovation).

#_ftnref172      [172].     Hopkins, supra note 136, at 109–12 (finding that individual perceptions of the threats posed by air pollution from cars and climate change are more strongly correlated with party affiliation than with the threats posed by local pollution levels or proximity to the coasts, where sea level rise presents the greatest risk).

#_ftnref173      [173].     David A. Graham, Red State, Blue City, The Atlantic (Mar. 15, 2017), [].

#_ftnref174      [174].     Id. (noting that the spread between rural and urban voting preferences in the 2016 presidential election was larger than at any point during the last one hundred years).

#_ftnref175      [175].     The Frank R. Lautenberg Chemical Safety Act for the 21st Century, U.S. Envtl. Protection Agency, [].

#_ftnref176      [176].     Katherine A. Trisolini, Efficiency Gatekeepers, the Social Cost of Carbon, and Post-Trump Climate Change Regulation, 91 Temp. L. Rev. 261, 264–65 (2019) (“Political dynamics and legal trends have placed administrative agencies in the foreground of climate change policymaking. The majority of federal environmental law’s foundational statutes originated during the 1960s and 1970s in a period of ambitious reform driven by Congress and supported by the courts. In contrast, the current era has been marked by legislative stagnation . . . . Federal agencies’ role as first movers makes the rules of administrative law and process critical determinants of U.S. climate policy.”).

#_ftnref177      [177].     Ryan Lizza, As the World Burns: How the Senate and the White House Missed Their Best Chance to Deal with Climate Change, New Yorker (Oct. 3, 2010), [].

#_ftnref178      [178].     Graham, supra note 173 (noting that while Democrats dominate cities, Republicans dominate the majority of states, and that “even the reddest states contain liberal cities”); see also Fox, supra note 3, at 595 (“In parts of the country with a more conservative statewide bent, cities are often more amenable to—and potentially more in need of—environmental regulation than the surrounding areas.”); Grab & Livermore, supra note 5, at 669–70 (stating that “there is little evidence that—without a sustained push by the federal government—Red and Purple states will do much besides maintain the current status quo [with respect to environmental protection]”).

#_ftnref179      [179].     Emily Badger, Quoctrung Bui, & Adam Pearce, Republicans Dominate State Politics. But Democrats Made a Dent This Year, N.Y. Times (Nov. 10, 2018), [].

#_ftnref180      [180].     Amber Phillips, These 23 Maps Show Just How Dominant Republicans Are in America After Tuesday, Wash. Post (Nov. 12, 2016), [].

#_ftnref181      [181].     For a list of New York State senators as of November 2018, see Senators, Committees and other Legislative Groups, N.Y. State Senate, []. There were thirty-two registered Democrats in the State Senate as compared to thirty-one registered Republicans. One Democrat, Simcha Felder, caucused with the Republicans so we included him in the Republican tally.

#_ftnref182      [182].     Vivian Wang, Just One Seat: The High-Octane Fight to Flip New York’s Senate, N.Y. Times (Nov. 5, 2018), [].

#_ftnref183      [183].     For a list of Pennsylvania State senators, see Members of the Senate, Penn. State Senate, [].

#_ftnref184      [184].     Kevin D. Williamson, Republicans Do Well in Texas. Except for Dallas, Houston, Austin . . ., Wall Street Journal (Apr. 27, 2018), []; Governors of Texas, 1846 – Present, Legis. Reference Libr. of Tex., [].

#_ftnref185      [185].     See also Welton, supra note 23, at 272.

#_ftnref186      [186].     For discussion of cities that have not prospered in the postindustrial age, see Anderson, supra note 164; Florida, supra note 159.

#_ftnref187      [187].     Moretti, supra note 90, at 167.

#_ftnref188      [188].     See, e.g., Portland, Or., Binding City Policy ENN-5.04 (2015); Climate Change – Policies and Plans, Austin Texas, []; About, Greenovate City of Boston, []; Reducing Emissions, City of Boston, []; City of Chicago, Chicago Climate Action Plan: Overview Summary,; Climate Action, Denver Dept. Of Pub. Health & Env’t,
denvergov/en/environmental-health/environmental-quality/climate.html []; Modeling Results: 80% Greenhouse Gas Emissions Reduction by 2050, Minneapolis Sustainability, []; Vision 3: Our Sustainable City, OneNYC, []; Energy & Green Buildings, City Of Orlando, []; Melissa Romero, Here’s How Philly Plans to Combat Climate Change, Curbed Philadelphia (Sept. 27, 2017), []; Office of the Mayor, Mayor Mark Farrell Announces Historic Commitment to Net-Zero Emissions by 2050 (Apr. 19, 2018), []; Seattle Office Of Sustainability & Environment, 2014 Seattle Community Greenhouse Gas Emissions Inventory 3 (2016), []; Climate Action Planning, Dc Dept. of Energy & Envt., [].

#_ftnref189      [189].     For references to the puzzling nature of city interest in reducing GHG emissions, see, for example, Trisolini, supra note 3, at 681–83; Welton, supra note 23, at 339.

#_ftnref190      [190].     CleanEnergy DC Omnibus Amendment Act of 2018, D.C. Law 15-340, D.C. Official Code § 34-1431 (2019). Professor Shelley Welton has noted that “many of the same activities that cut carbon emissions most effectively . . . also tamp down on electricity rates.” Welton, supra note 23, at 336. Professor Trisolini mentions other benefits to municipal action to reduce GHG emissions. Trisolini, supra note 3, at 732–33.

#_ftnref191      [191].     These hypotheses for municipal action draw on the hypotheses that scholars have offered for state action on climate change. Kirsten H. Engel & Barak Y. Orbach, Micro-Motives and State and Local Climate Change Initiatives, 2. Harv. L. & Pol’y Rev. 119 (2008); Richard B. Stewart, States and Cities as Actors in Global Climate Change Regulation: Unitary vs. Plural Architectures, 50 Ariz. L. Rev. 681, 690–93 (2008).

#_ftnref192      [192].     William Baldwin, Preserving the State and Local Tax Deduction: Bad News, Forbes (Mar. 31, 2018), [].

#_ftnref193      [193].     Revesz, Race to the Bottom, supra note 5, at 543.

#_ftnref194      [194].     But see Julia Pyper, Everything You Need to Know About California’s New Solar Roof Mandate, Greentech Media (May 21, 2018), [] (energy savings from the California solar mandate outweigh the added construction costs over a thirty-year mortgage).

#_ftnref195      [195].     Vicki Been, City NIMBYs, 33 J. Land Use & Envtl. L. 217 (2018); John Mangin, The New Exclusionary Zoning, 25 Stan. L. & Pol’y Rev. 91 (2014). State preemption of local laws that restrict the supply of new housing, and therefore restrict density, might further environmental goals by reducing sprawl. Glaeser, supra note 29, at 183–99; Mangin, supra.

#_ftnref196      [196].     National People of Color Environmental Leadership Summit, The Principles of Environmental Justice (EJ) (Oct. 1991); Vicki Been, What’s Fairness Got to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 Cornell L. Rev. 1001, 1005 (1993); Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 Ecology L.Q. 619, 624–30 (1992).

#_ftnref197      [197].     See, e.g., Florida, supra note 159.

#_ftnref198      [198].     Benjamin Schneider, What Keeps Bike Share White, Citylab (July 14, 2017), []; Teresa Wiltz, Can There Be Equity in the Bike Lane?, PEW Stateline (Feb. 14, 2018), [].

#_ftnref199      [199].     Laura Bliss, The High Line’s Next Balancing Act, Citylab (Feb. 7, 2017), []. Historically, Central Park was also disproportionately used by certain components of New York City’s population. Rosenzweig & Blackmar, supra note 75.

#_ftnref200      [200].     See Sarah Fox, Environmental Gentrification, 90 U. Colo. L. Rev. 803 (2019); Paul Stanton Kibel, The People Down the Hill: Parks Equity in San Francisco’s East Bay, 1 Golden Gate U. Envtl. L.J. 331, 335–41 (2010); Shelley Welton, Clean Electrification, 88 U. Colo. L. Rev. 571 (2015); Jennifer R. Wolch et al., Urban Green Space, Public Health and Environmental Justice: The Challenge of Making Cities ‘Just Green Enough,’ 125 Landscape & Urb. Planning 234, 235 (2014); We Act For Environmental Justice, West Harlem Piers Park, We Act, []. To be sure, environmental justice advocates historically demonstrated some concern with the fair distribution of benefits such as parks as well as burdens. See, e.g., Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 Envtl. L. Rep. 10681, 10684 (2000) (citing Michael Gelobter, The Meaning of Urban Environmental Justice, 21 Fordham Urb. L.J. 841, 844 (1994)).

#_ftnref201      [201].     See Municipal Arts Society, A Tale of Two Rezonings: Taking a Harder Look at CEQR (2018); see also Ordonez v. City of New York, 110 N.Y.S.3d 222 (N.Y. Sup. Ct. July 11, 2018) (unpublished) (referring to concern that increased development in neighborhoods that have historically been predominantly occupied by low- and middle-income communities of color will cause gentrification and displacement of existing populations).

#_ftnref202      [202].     See, e.g., Anthony Flint, Backyard Brouhaha, Land Lines (Feb. 26, 2019), [].

#_ftnref203      [203].     Holloway et al., supra note 130, at 342.

#_ftnref204      [204].     See, e.g., Seattle Public Utilities: Green Stormwater Infrastructure, Seattle.Gov, [].

#_ftnref205      [205].     Anne-Marie Lubenau, Spotlight: Chicago Riverwalk’s Transformation Into Recreational Frontier, Metropolis (June 12, 2017), []; Patrick Sisson, Chicago’s New Riverwalk Offers a Vision of the Future of Urban Parks, Curbed (Nov. 2, 2016),[]. Chicago’s Riverwalk is an example of how cities are transforming old industrial waterfront areas into parks as industrial uses for these areas recede with deindustrialization. Brooklyn Bridge Park in New York City is another example of the same phenomenon; Brooklyn Bridge Park is funded by residential developments allowed within the Park. Visitor Information, Brooklyn Bridge Park, []; see also Kenneth A. Gould & Tammy L. Lewis, Green Gentrification: Urban Sustainability and the Struggle for Environmental Justice 10–11 (2016).

#_ftnref206      [206].     Riverwalk’s revenue rose from an average of $1.2 million per year from 2011–14 to $4.8 million in 2015 and $9.8 million the following year. Gina Ford, Three U.S. Cities Reinventing the Modern Waterfront, Urban Land (Nov. 13, 2017), [].

#_ftnref207      [207].     Ryan Ori, It’s Not Just for Recreation. Companies Flocking to Chicago River Too., Chicago Tribune (Aug. 17, 2018), [].

#_ftnref208      [208].     See Rules on Air Pollution in Boston, City of Boston, []; Boston, Ma, Regulations for the Control of Atmospheric Pollution, Reg. 2 (2019); N.Y.C., N.Y., Local Law of 2010 No. 43 (2019); N.Y.C. Dept. of Envtl. Protection, Rules Governing the Emissions from the Use of #4 and #6 Fuel Oil in Heat and Hot Water Boilers and Burners (2011); Philadelphia, Pa., Air Management Code, S. 3-207(1)(a)(1) (2019).

#_ftnref209      [209].     Diana Hernández, Clean Heat: A Technical Response to a Policy Innovation, 18 Cityscape 277, 278 (2016).

#_ftnref210      [210].     Austin, Chicago, Denver, Minneapolis, New York, Portland, and Washington, D.C. all have anti-idling ordinances in place. Heavy Duty Vehicle Idling, Air Central Tx., []; Doing Our Share for Cleaner Air: Idling Reduction, City of Chicago, []; Idling Illegal in Denver, Denver ABC (Dec. 10, 2018), []; Minneapolis, Minn., Code of Ordinances ch. 58 (2019) (Idling); Idling Regulations: About, NYC Bus., []; Portland, OR, Ordinance No. 182871 (2019); D.C. Mun. Regs. tit. 20, § 900 (Onroad Engine Idling and Nonroad Diesel Engine Idling).

#_ftnref211      [211].     Ann E. Carlson, The Clean Air Act’s Blind Spot: Microclimates and Hotspot Pollution, 65 UCLA L. Rev. 1036, 1042–44 (2018) (discussing how attainment for the Clean Air Act is measured across large geographic areas, but not smaller areas).

#_ftnref212      [212].     D.C., Healthy Schools Act, D.C. Code § 38-821.01 (2019). New York City also sets especially strict idling restrictions for school zones. Idling Regulations: About, NYCBus., [].

#_ftnref213      [213].     Joe Flechas, Miami Beach to Begin New $100 Million Flood Prevention Project in Face of Sea Level Rise, Miami Herald (Jan. 28, 2017), [].

#_ftnref214      [214].     The Rockefeller Foundation, Cities Taking Action 44 (July 2017).

#_ftnref215      [215].     City of New York, Cool Neighborhoods NYC: A Comprehensive Approach to Keep Communities Safe in Extreme Heat 11, 13 (2017), [].

#_ftnref216      [216].     Cities may also benefit financially from developing comprehensive resilience or adaptation strategies because credit-rating agencies, which assign cities credit ratings that affect municipal borrowing costs, have started to consider resilience planning in their assessments. See Billy Grayson, Moody’s: Climate Change Adaptation and Mitigation Could Affect Cities’ Bond Ratings, Urban Land Mag. (Jan. 17, 2018), [].

#_ftnref217      [217].     See also Munnings et al., supra note 13 (distinguishing upstream and downstream regulation).

#_ftnref218      [218].     Katrina Fischer Kuh, When Government Intrudes: Regulating Individual Behaviors that Harm the Environment, 61 Duke L.J. 1111, 1130–31 (2012).

#_ftnref219      [219].     Cities that own the local electric utilities, such as Austin and Seattle, have greater control over the generation mix, which is a supply side of the economy. See A Brief History of City Light, Seattle City Light, []; Company Profile, Austin Energy, []. But such cities are the exception, rather than the rule. See Welton, supra note 23, at 290 & 290–91 nn.98–99. Some cities with privately owned electric utilities have turned toward Community Choice Aggregation to exert control over the sources of electricity and incentivize the proliferation of renewables. Id. at 310–12.

#_ftnref220      [220].     See Jason J. Czarnezki, New York City Rules! Regulatory Models for Environmental and Public Health, 66 Hastings L.J. 1621, 1622–23 (2015); Kuh, supra note 218, at 1131. See generally Michael P. Vandenbergh, From Smokestack to SUV: The Individual as Regulated Entity in the New Era of Environmental Law, 57 Vand. L. Rev. 515 (2004) (arguing that environmental law has focused on regulating large firms and that there should be greater focus on regulating individual behavior).

#_ftnref221      [221].     By real estate industry, we refer to the owners and operators of buildings. Apart from federally owned or occupied buildings, the federal government does not impose many environmental requirements on buildings, except to the extent that the Energy Policy and Conservation Act sets energy efficiency standards for certain appliances, which is discussed in Part III. Most green building policies have therefore been left to state and local governments to develop.

#_ftnref222      [222].     See Maureen Groppe, Mayors Pledge to Take the Lead on Fighting Climate Change, USA Today (June 2, 2017), [].

#_ftnref223      [223].     Again, only a small number of major cities control electric utilities. See supra note 219.

#_ftnref224      [224].     New York and Washington have recently enacted measures to promote building energy efficiency that could impose significant costs on the building sector. See infra notes 236–240 and accompanying text. A small number of U.S. cities have also implemented carbon taxes. See infra note 318.

#_ftnref225      [225].     See, e.g., Trisolini, supra note 3, at 701–03 (discussing local authority over building codes, which are generally understood to rest squarely within state and local jurisdiction).

#_ftnref226      [226].     See also Schragger, supra note 153, at 179 (referring to local requirements that trucks entering the ports of Los Angeles and Long Beach be low-emission vehicles as an example of “municipal regulation . . . targeting . . . regionally immobile industries”).

#_ftnref227      [227].     Frequently Asked Questions, How Much Energy Is Consumed In Buildings?, U.S. Energy Info. Admin., [].

#_ftnref228      [228].     Chicago’s Energy Benchmarking, 2017 Chicago Energy Rating System, (2017), []; About OneNYC Green Buildings & Energy Efficiency, N.Y.C. Green Bldgs. & Energy Efficiency, [].

#_ftnref229      [229].     As an example, about 85 percent of the buildings in New York City that are standing today will still be in place in 2030. City of N.Y., Mayor’s Office of Long Term Planning and Sustainability, One City: Built to Last 24–25 (2014), [].

#_ftnref230      [230].     Benchmarking means that buildings evaluate how much energy and water they use relative to similarly situated properties. Cities requiring benchmarking include: Boston, Chicago, Denver, Minneapolis, New York City, Philadelphia, Portland, San Francisco, Seattle, and Washington, D.C. For a full list of jurisdictions that require benchmarking, see Inst. for Mkt. Transformation, US Building Benchmarking and Transparency Policies (2017), [].

#_ftnref231      [231].     At least six American cities currently require audits: Atlanta, Austin, Berkeley, Boulder, New York, and San Francisco. Atlanta, Ga., City Code, Part III, Land Development Code, pt. 8, art. J, S. 8-2227 (Energy and Water Audit Required); Energy Conservation Audit and Disclosure Ordinance, Austin Energy, []; ECAD for Commercial Buildings, Austin Energy, []; BESO Administrative Regulations Appendix D (2017),; Boulder Building Performance Program, City of Boulder Colorado, []; LL87: Energy Audits & Retro-commissioning, NYC Mayor’s Off. of Sustainability, []; Energy Efficiency Audit Overview, S.F. Env’t, []; S.F., Cal., Env’t Code, ch. 20 (2019). New York City, Seattle, and Boulder require buildings to perform retro-commissioning as well. Boulder Building Performance, City of Boulder Colorado, []; LL87: Energy Audits & Retro-commissioning, NYC Mayor’s Off. of Sustainability,; Seattle, Wash., Municipal Code, ch. 22.930 (2019) (Building Tune-Ups).

#_ftnref232      [232].     See generally Tim Meng et al., Estimating Energy Savings from Benchmarking in New York City, 133 Energy 455 (2017).

#_ftnref233      [233].     Id.

#_ftnref234      [234].     Chicago Energy Rating System, City of Chicago, [].

#_ftnref235      [235].     N.Y.C., N.Y., Local Law of 2018 No. 33 (2019).

#_ftnref236      [236].     Danielle Spiegel-Feld, Guarini Ctr., Building Demand for Efficient Buildings (2016), [].

#_ftnref237      [237].     Bill 22-904, CleanEnergy DC Omnibus Amendment Act of 2018, tit. III, § 301 (2018).

#_ftnref238      [238].     N.Y.C., N.Y., Local Law of 2019 No. 97 (2019).

#_ftnref239      [239].     Id.

#_ftnref240      [240].     Id. at § 28-320.1. For a discussion of how such a trading program may be designed, see Danielle Spiegel-Feld, Local Law 97: Emissions Trading for Buildings? N.Y.U. L. Rev. Online (2019). On Tokyo’s building emissions trading regime, see, for example, Sven Rudolph & Toru Morotomi, Acting Local! An Evaluation of the First Compliance Period of Tokyo’s Carbon Market, 10 Carbon & Climate L. Rev. 75, 75 (2016). The Washington, D.C. program enables universities to engage in an implicit form of internal trading of responsibilities between their buildings. The bill applies an energy performance standard to the entire portfolio of a university’s buildings, rather than to individual buildings. CleanEnergy DC Omnibus Amendment Act of 2018, § 301(b)(2).

#_ftnref241      [241].     N.Y.C. Local Law No. 97, § 28-320.1 (Covered Building & Rent Regulated Accommodation). However, buildings with rent regulated units must implement certain low-cost energy efficiency measures. Id. at § 28-321.2.2.

#_ftnref242      [242].     Donna DeCostanzo, Trailblazing Bill Would Make NYC an Efficiency Champion, NRDC: Expert Blog (Dec. 3, 2018), [].

#_ftnref243      [243].     Boston, Chicago, Denver, Los Angeles, and other American cities have pursued various transit-oriented development strategies in recent years. EPA et al., Encouraging Transit Oriented Development: Case Studies that Work, []. As of 2010, there were already approximately 200 transit-oriented development sites in North America. Arefeh Nasri & Lei Zhang, The Analysis of Transit-Oriented Development (TOD) in Washington, D.C. and Baltimore Metropolitan Areas, 32 Transport Pol’y 172 (2014).

#_ftnref244      [244].     Glaeser, supra note 29, at 14.

#_ftnref245      [245].     Press Release, Mayor’s Press Office, Mayor Emanuel Introduces Transit Oriented Development Reform Ordinance to Accelerate Development Near Public Transportation Stations (July 27, 2015), [].

#_ftnref246      [246].     Lakefront Protection Review, City of Chicago, [].

#_ftnref247      [247].     See Glaeser, supra note 29, at 211.

#_ftnref248      [248].     Pete Danko, Portland Fossil-Fuel Infrastructure Ban Survives Court Challenge, Portland Bus. J. (Aug. 1, 2018), [].

#_ftnref249      [249].     The lists are: Warren Karlenzig, How Green is Your City? The SustainLane U.S. City Rankings 2 (2007); Adam McCann, Greenest Cities in America, WalletHub (Oct. 10, 2018), []; Courtney Miller, America’s Greenest Cities, NerdWallet (Apr. 14, 2015), []; The Top 10 Green Cities in the U.S., The Green Guide (July 7, 2013), [].

#_ftnref250      [250].     See Appendix for sources that were used in compiling this table.

#_ftnref251      [251].     For an overview of state efforts to block local environmental policies in recent years, see generally Fox, supra note 3.

#_ftnref252      [252].     Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 835 F. Supp. 2d 1133 (D.N.M. 2010).

#_ftnref253      [253].     Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d 152 (2d Cir. 2010).

#_ftnref254      [254].     In 2017, New York State preempted a New York City law that would have required merchants to charge five cents for carry-out plastic bags. Jesse McKinley, Cuomo Blocks New York City Plastic Bag Law, N.Y. Times (Feb. 14, 2017). However, in 2019, after the Democrats captured both houses of the State legislature, the State passed a new statewide ban on plastic bags that allowed cities to impose a fee on paper bags, which the New York City Council subsequently voted to do. Jesse McKinley, Plastic Bags to be Banned in New York; Second Statewide Ban, After California, N.Y. Times (Mar. 28, 2019), []; Cole Rosengren, New York City Council Passes Paper Bag Fee – Again – Following Plastic Ban, WasteDive (Apr. 22, 2019), []. In 2017, Minnesota also enacted a law that preempted a Minneapolis ban on carryout plastic bags and prohibited municipalities from enacting fees on bags as well. Emma Nelson, Legislature Blocks Plastic Bag Ban in Minneapolis, Star Tribune (May 31, 2017), []. Arizona, Idaho, Michigan, Missouri, and Wisconsin have all passed similar measures prohibiting local regulation of plastic bags. See Fox, supra note 3, at 600–01.

#_ftnref255      [255].     See infra notes 319–328 and accompanying text.

#_ftnref256      [256].     See supra note 25 with accompanying text. For more skeptical views on the idea of subnational units as sites for innovation, see Livermore, supra note 4; David Schleicher, Federalism and State Democracy, 95 Tex. L. Rev. 763 (2017).

#_ftnref257      [257].     See, e.g., Williams v. Mayor of Baltimore, 289 U.S. 36 (1933).

#_ftnref258      [258].     David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255, 2260 (2003).

#_ftnref259      [259].     Id. at 2261 (describing the ways in which state zoning laws authorize local governments to regulate land use).

#_ftnref260      [260].     On the meaning of home rule, see generally Barron, supra note 258.

#_ftnref261      [261].     See infra Part III.B.

#_ftnref262      [262].     See Nestor M. Davidson, The Dilemma of Localism In An Era of Polarization, 128 Yale L.J. 5 n.18 (2019).

#_ftnref263      [263].     For instance, the California State Constitution prohibits local governments from adopting legislation that is “in conflict with general laws.” See, e.g., Cal. Const. art. XI, § 7.

#_ftnref264      [264].     This dynamic has arguably played out most dramatically in the context of conflict over so-called “sanctuary cities.” See Erin Adele Scharff, Hyper-Preemption: A Reordering of the State-Local Relationship?, 106 Geo. L.J. 1469 (2018). See generally Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995 (2018); Davidson, supra note 262; John Infranca, The New State Zoning: Land Use Preemption Amid A Housing Crisis, 60 B.C. L. Rev. 823 (2019); Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2019).

#_ftnref265      [265].     Michael A. Cardozo & Zachary W. Klinger, Home Rule in New York: The Need for Change, 38 Pace L. Rev. 90 (2017).

#_ftnref266      [266].     See infra Part III.A.

#_ftnref267      [267].     Other scholars have previously set out this distinction between floor and ceiling preemption. See, e.g., William Buzzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. Rev. 1547 (2007).

#_ftnref268      [268].     Freeman, supra note 2, at 350; Revesz, Interstate Externalities, supra note 5, at 2372 (referring to Clean Air Act § 116, 42 U.S.C. § 7416 (2018)).

#_ftnref269      [269].     42 U.S.C. §§ 7543(a)–(b) (2018). Other states can adopt the California standards. 42 U.S.C. § 7507 (2018).

#_ftnref270      [270].     42 U.S.C. § 32919 (2018).

#_ftnref271      [271].     Alexandra B. Klass, State Standards and Nationwide Products Revisited: Federalism, Green Building Codes, and Appliance Efficiency Standards, 34 Harv. Envtl. L. Rev.335, 346 (2010).

#_ftnref272      [272].     Engine Mfrs. Ass’n v. U.S. EPA, 88 F.3d 1075, 1079 (D.C. Cir. 1996); Revesz, Race to the Bottom, supra note 5, at 544.

#_ftnref273      [273].     615 F.3d 152 (2d Cir. 2010).

#_ftnref274      [274].     Metro. Taxicab Bd. of Trade v. City of New York (Metropolitan Taxi I), 2008 U.S. Dist. LEXIS 94021, at *5 (S.D.N.Y. Oct. 31, 2008).

#_ftnref275      [275].     49 U.S.C. § 32919(a) (2018).

#_ftnref276      [276].     See Metropolitan Taxi II, 615 F. Supp. at 155 (stating that the new lease caps would lower profits for conventional cabs by 65 to 75 percent).

#_ftnref277      [277].     See id.

#_ftnref278      [278].     See id.

#_ftnref279      [279].     Id. at 157.

#_ftnref280      [280].     Id. at 155.

#_ftnref281      [281].     See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 58 (2007) (noting the inherent ambiguity of prepositional phrases such as “related to”).

#_ftnref282      [282].     See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 255 (2004) (concerning the reach of section 209 of the CAA, which prohibits the adoption or attempted enforcement of any state or local “standard relating to the control of emissions from new motor vehicles or new motor vehicle engines”); see also 42 U.S.C. § 7543(a) (2018).

#_ftnref283      [283].     Energy Policy Conservation Act of 1975, 42 U.S.C. § 6201(2)(4) (2018); see S. Rep. No. 94-179, at 2 (1975) (stating that “there is agreement that energy conservation must be a key element of [energy] policy” and “[t]he improvements in fuel economy called for in S. 1883 will lead to an overall reduction in gasoline demand”).

#_ftnref284      [284].     § 6201(2)(4).

#_ftnref285      [285].     EPCA’s legislative history provides little information regarding the intended scope of its preemption provision. Ophir v. City of Boston, 647 F. Supp. 2d 86, 93 (D. Mass. 2009); Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 394 (D. Vt. 2007).

#_ftnref286      [286].     Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 835 F. Supp. 2d 1133 (D.N.M. 2010).

#_ftnref287      [287].     Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 2012 WL 13081235, at *1 (D.N.M. Jan. 25, 2012); Metropolitan Taxi I, 2008 U.S. Dist. LEXIS 94021 (S.D.N.Y. Oct. 31, 2008).

#_ftnref288      [288].     The pathways available to builders depended on the type of building; different pathways were provided for “commercial and multi-family buildings” compared with “one and two family detached dwellings and townhouses.” For example, for commercial and multi-family buildings, in addition to the prescriptive pathway there were two performance pathways: obtaining LEED certification for the building at the level of “Silver” or greater; or designing the building as a whole to use 30 percent less energy than the minimum standards established by the American Society of Heating, Refrigerating and Air-Conditioning Engineers. Albuquerque, 835 F. Supp. 2d at 1135, 1138.

#_ftnref289      [289].     Id. at 1135.

#_ftnref290      [290].     The litigation resulted in three decisions from the same district court judge, the last of which held that the code could not be enforced. We limit our discussion to the district court’s first two decisions: Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 2008 WL 5586316 (D.N.M. Oct. 3, 2008) (preliminarily enjoining the code after holding that the plaintiffs are likely to succeed on their claims that the prescriptive and the performance pathways are preempted and not saved by the exemptions from preemption in EPCA); and Albuquerque, 835 F. Supp. 2d at 1133 (granting summary judgment to the plaintiffs on their claims that the prescriptive pathways and one of the performance pathways for residential homes are preempted, without expressly considering if the prescriptive pathways for commercial and multi-family buildings or residential homes are saved by the statutory exemptions from preemption). The district court relied on two preemption provisions: (1) 42 U.S.C. § 6316(b)(2)(A) (2018), which preempts state and local energy regulations of commercial appliances unless the regulation satisfies a savings clause in 42 U.S.C. § 6316(b)(2)(B) that is limited to code provisions covering new construction; and (2) 42 U.S.C. § 6297(c), which preempts state and local regulations of residential appliances unless the regulation satisfies a savings clause in 42 U.S.C. § 6297(f)(3) that is also limited to code provisions covering new construction. Albuquerque argued that 42 U.S.C. § 6316(a) incorporates 42 U.S.C. § 6297—including 6297’s savings provision. Defendant’s Brief in Opposition to Renewed Motion for Partial Summary Judgment as to Volume I of the Albuquerque Energy Conservation Code, Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 835 F. Supp. 2d 1133 (D.N.M. 2010), 2010 WL 11595566. For a clear exposition of the two relevant preemption provisions and associated savings clauses, see id.; Renewed Motion and Memorandum Brief for Partial Summary Judgment on Preemption of the City of Albuquerque’s Green Building Codes: Replacements, Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 835 F. Supp. 2d 1133 (D.N.M. 2010), 2009 WL 10697815.

#_ftnref291      [291].     Albuquerque, 835 F. Supp. 2d at 1136–37.

#_ftnref292      [292].     Id. at 1137 (citing for this holding the preliminary injunction decision, 2008 WL 5586316, at *8); id. at 1138 (concluding that the prescriptive pathway for the residential homes is preempted for the same reasons).

#_ftnref293      [293].     Id. at 1137–38.

#_ftnref294      [294].     Albuquerque, 2008 WL 5586316, at *9 (D.N.M. Oct. 3, 2008). Residential building codes for new construction are exempted from preemption if they meet seven criteria, including “[t]he code does not require that the covered product have an energy efficiency exceeding the applicable [federal] energy conservation standard.” 42 U.S.C. § 6297 (f)(3)(B) (2018).

#_ftnref295      [295].     Albuquerque, 2008 WL 5586316, at *9.

#_ftnref296      [296].     Albuquerque, 835 F. Supp. 2d at 1139–40.

#_ftnref297      [297].     Bldg. Indus. Ass’n v. Wash. State Bldg. Code Council, 683 F.3d 1144 (9th Cir. 2012).

#_ftnref298      [298].     Id. at 1151 (applying 42 U.S.C. § 6297 (f)(3)(B) (2018), the same provision discussed by the New Mexico court in Albuquerque, 2008 WL 5586316, at *9).

#_ftnref299      [299].     Bldg. Indus. Ass’n, 683 F.3d at 1153 (citing Supreme Court precedent distinguishing requirements on the one hand, from economic incentives and inducements on the other). Cf. Albuquerque, 2008 WL 5586316, at *9 (describing the higher cost of satisfying the code provisions without using high efficiency appliances as “effectively requir[ing] the installation of products that exceed federal energy standards”). The Ninth Circuit distinguished the New Mexico court’s preliminary injunction holding on § 6297(f)(3)(B) by explaining that the Albuquerque ordinance created a more direct penalty for failing to use high efficiency appliances than did Washington State’s ordinance. Air Conditioning, Heating & Refrigeration Inst., 835 F. Supp. 2d at 1151–52. However, the New Mexico court did not articulate such a standard itself and it is far from certain that the court would have ruled differently if presented with the facts before the Ninth Circuit. Indeed, it seems equally plausible that the New Mexico court would have determined that an ordinance like Washington State’s “effectively required” high efficiency products because it created an economic incentive for their use. The uncertainty regarding the reach of the New Mexico decision has led some commentators to conclude the cases present a “circuit split.” See, e.g., Shari Shapiro, Decision in BIA v. Washington Does Not Clarify When Energy Efficient Codes Are Preempted by Federal Law, Green Building L. (July 13, 2012), litigation/decision-in-bia-v-washington-does-not-clarify-when-energyefficient-codes-are-preempted-by-federal-law []. At a minimum, this uncertainty may discourage local officials from adopting building codes that permit individuals to demonstrate compliance via installation of high-efficiency appliances, even where this may be the most cost-effective means of achieving the desired energy savings.

#_ftnref300      [300].     See also Klass, supra note 271, at 365 (indicating that appliance efficiency standards will not necessarily result in separately designed products in each state).

#_ftnref301      [301].     See Albuquerque, 2008 WL 5586316, at *2 (noting that the Albuquerque code applies to new buildings, additions to buildings, and buildings that have been substantially renovated); see also Wash. Admin. Code § 51- (2019) (setting out the conditions under which the provisions of the Washington State Building Code apply to additions of existing buildings). Notably, a city could not rely on an exemption from preemption under 42 U.S.C. § 6297(f)(3) or § 6316(b)(2)(B) for mandating that existing buildings use covered appliances that exceed federal minimums; the statute only contemplates exemptions for building codes for new construction. 42 U.S.C. § 6297(f)(3) (2018); 42 U.S.C. § 6316(b)(2)(B).

#_ftnref302      [302].     See Albuquerque, 835 F. Supp. 2d 1133.

#_ftnref303      [303].     California, which regulates transportation network companies at the state level, has passed legislation to promote the electrification of transportation network company vehicles. See Cal. Clean Miles Standard & Incentive Program, S.B. 1014, 2018 Cal. Leg. Sess. (2018).

#_ftnref304      [304].     N.Y.C. Taxi & Limousine Comm., 2018 Fact Book 1 (2018). Almost 64 percent of the licensed taxis are hybrids; almost 19 percent of the licensed FHV vehicles are hybrids. Id.

#_ftnref305      [305].     Press Release, City of New York, Mayor Announces City Electric Vehicle Fleet Ahead of Schedule, Half Way Toward Goal (Apr. 20, 2017), [].

#_ftnref306      [306].     American Auto Mfrs. Ass’n v. Cahill, 152 F.3d 196 (2d Cir. 1998) (holding New York State zero emission vehicle requirements preempted by Clean Air Act); Metropolitan Taxi I, 2008 U.S. Dist. LEXIS 94021 (S.D.N.Y. Oct. 31, 2008). As Richard Revesz suggested to us, California might adopt requirements that vehicles, such as transportation network company vehicles, electrify, relying on a waiver from EPA for such a requirement. If it did so, other states might then adopt the California standards. For a state to limit the electrification requirements to vehicles in cities, California’s requirements would have to also limit the requirement in the same way. For California legislation to electrify transportation network company vehicles, see supra note 303.

#_ftnref307      [307].     Green Taxis Act, H.R. 1243, S. 670, 112th Cong. (2011).

#_ftnref308      [308].     See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004).

#_ftnref309      [309].     Robert L. Glicksman & Richard E. Levy, A Collective Action Perspective on Ceiling Preemption by Federal Environmental Regulation: The Case of Global Climate Change, 102 Nw. U. L. Rev. 579, 589 (2008); Richard B. Stewart, States and Cities as Actors in Global Climate Regulation: Unitary vs. Plural Architectures, 50 Ariz. L. Rev. 681, 706 (2008); Paul S. Weiland, Federal and State Preemption of Environmental Law: A Critical Analysis, 24 Harv. Envtl. L. Rev. 237, 238 (2000).

#_ftnref310      [310].     Other scholars have argued that preemption inquiries should always turn on the purpose of the statute that is claimed to preempt the state or local law. Glicksman & Levy, supra note 309, at 580.

#_ftnref311      [311].     Some may worry that limiting the scope of ceiling preemption would undermine environmental goals by making it hard to secure legislative compromises with industry. But given the slow pace of federal environmental law development during the past three decades, this risk does not seem as pressing as the risk of stifling innovation at the subnational levels.

#_ftnref312      [312].     Frug & Barron, supra note 8, at 82. On the history of state law limits on local taxation authority, see Barron, supra note 258, at 2283, 2295, 2299, 2312–15, 2322, 2365.

#_ftnref313      [313].     Frug & Barron, supra note 8, at 76.

#_ftnref314      [314].     Daniel R. Mullins & Bruce A. Wallin, Tax Expenditure Limitations: Introduction and Overview, 24 Pub. Budgeting & Fin. 7 (2004).

#_ftnref315      [315].     Richard Briffault & Laurie Reynolds, State and Local Government Law 688 (8th ed. 2016).

#_ftnref316      [316].     Clayton P. Gillette, Who Should Authorize a Commuter Tax, 77 U. Chi. L. Rev. 222, 245 (2010); John Douglas Wilson, Theories of Tax Competition, 52 Nat’l Tax J. 269, 289 (1999).

#_ftnref317      [317].     Richard L. Revesz, Environmental Law and Policy 179 (3d ed. 2015); see also N. Gregory Mankiw, One Answer to Global Warming: A New Tax, N.Y. Times (Sept. 16, 2007), [] (referenced by Revesz). To be clear, economists generally envisage a federal tax, not local taxes, to reduce GHG emissions.

#_ftnref318      [318].     A very small number of small U.S. cities have carbon taxes, which are essentially taxes on electricity consumption. Boulder, Colorado, is likely the best-known example of a city with a carbon tax. It is legally able to impose the tax because, unusually among states, Colorado allows municipalities to initiate taxes without state approval. See Colo. Const. art. XX. In other examples of local environmental taxes, Boston taxes all carryout bags and bans conventional plastic bags, and Chicago taxes checkout bags in order to encourage shoppers to use reusable bags. City of Chicago, Chicago Checkout Bag Tax – Frequently Asked Questions, []; Reducing Plastic Bags in the City of Boston, City of Boston, []. There are tolled roads, and some jurisdictions have tolled lanes next to un-tolled lanes on the same highway. However, these initiatives do not ensure that all drivers pay for the miles that they drive. Bruce Schaller, New York City’s Congestion Pricing Experience and Implications for Road Pricing Acceptance in the United States, 17 Transport Pol’y 266, 272–73 (2010).

#_ftnref319      [319].     For a description of New York City’s repeated efforts to implement congestion pricing, see Sam Schwartz et al., A Comprehensive Transportation Policy for the 21st Century: A Case Study of Congestion Pricing in New York City, 17 N.Y.U. Envtl. L.J. 580, 592–93 (2008).

#_ftnref320      [320].     Id.

#_ftnref321      [321].     See Schaller, supra note 318, at 270–72. In 2017, Roderick Hills and other legal scholars argued that New York City has authority under existing state law to charge drivers for using the roads and bridges that the city owns. These scholars argued that section 1624(a)(4) of the state Vehicle and Traffic Law authorizes the City to implement new tolls on its roads and bridges without State consent so long as such charges are authorized by the City Council. Roderick Hills et al., With Traffic and Transit in Crisis, City Must Take Charge, Crain’s N.Y. (July 6, 2017), []. As the scholars acknowledged, however, the city did not share their legal interpretation of its authority. Moreover, even if the city were to have tolled its roads and bridges, as these scholars suggest it could have, this would not have led to comprehensive and coordinated region-wide road pricing. The Metropolitan Transportation Authority and the Port Authority of New York and New Jersey own important bridges and tunnels (which they currently toll); these agencies are not controlled by New York City.

#_ftnref322      [322].     Schaller, supra note 318, at 267, 269.

#_ftnref323      [323].     Id. at 268.

#_ftnref324      [324].     Aaron Naparstek, Congestion Pricing Q&A with Rohit Aggarwala, Part 3, Streetsblog NYC (Sept. 19, 2007), []; see also Schaller, supra note 318, at 268.

#_ftnref325      [325].     Schaller, supra note 318, at 267, 269. Opposition was concentrated in the outer boroughs of Queens and Brooklyn. Id. at 269.

#_ftnref326      [326].     Nicholas Confessore, Congestion Pricing Plan Dies in Albany, N.Y. Times (Apr. 7, 2008), []. The New York Times noted that the legislature had dealt a “huge blow to Mr. Bloomberg’s environmental agenda.” Id.

#_ftnref327      [327].     Azi Paybarah, Congestion Pricing: Who Pays and Who Doesn’t?, N.Y. Times (Apr. 18, 2019), [].

#_ftnref328      [328].     Stephen Nessen, Experts Give MTA Roadmap for Congestion Pricing: $9 Peak Fares & No Exemptions, Gothamist (Sept. 17, 2019), [].

#_ftnref329      [329].     See supra note 316 (citing sources discussing the appropriate scope of municipal taxation authority).

#_ftnref330      [330].     The 2018 elections, which left Democrats in control of all three houses of government in a number of states for the first time in years, may provide new opportunities to pursue such changes. See, e.g., Vivian Wang, Democrats Take Control of New York Senate for First Time in Decade, N.Y. Times (Nov. 7, 2018), []. In a number of states including Colorado, Illinois, Maine, New Mexico, Nevada, and New York, all three houses of government—governorships, Houses and Senates—came under Democratic control. Sophie Quinton & Elaine S. Povich, So Much Changed in Statehouses This Week. Here’s What it All Means, Pew (Nov. 9, 2018), []. This single party control may make it easier to pass legislation that aligns with cities’ progressive priorities.

#_ftnref331      [331].     Gillette, supra note 316, at 1246. For example, New York City can typically instate new user fees or service charges without seeking permission from the State. N.Y. Mun. Home Rule § 10(9-a) (McKinney 2019).

#_ftnref332      [332].     Stormwater, City of Philadelphia Water, [].

#_ftnref333      [333].     Stormwater Fee Background, DC.Gov Dept. of Energy & Env’t, [].

#_ftnref334      [334].     Justin Gundlach, Sabin Ctr. for Climate Change Law, Colum. L. Sch., Putting Green Infrastructure on Private Property in New York City 13 (2017). The funds raised through these fees are intended to offset the expenses cities incur building and maintaining infrastructure to manage stormwater. Id.

#_ftnref335      [335].     Boulder, Colo., Ordinance No. 7870 (2019).

#_ftnref336      [336].     In New York City’s case, the fee was subsequently preempted by State legislation. Jesse McKinley, Cuomo Blocks New York City Plastic Bag Law, N.Y. Times (Feb. 14, 2017), []. In 2019, New York State banned plastic bags, and simultaneously authorized local governments to impose a five-cent fee on paper bags; the New York City Council voted to impose the fee on paper bags soon after the State law passed. Rosengren, supra note 254.

#_ftnref337      [337].     Erin Adele Scharff, Green Fees: The Challenge of Pricing Externalities Under State Law, 97 Neb. L. Rev. 168, 193 (2018).

#_ftnref338      [338].     Id. at 186–92.

#_ftnref339      [339].     Laurie Reynolds, Taxes, Fees, Assessments, Dues, and the “Get What You Pay for” Model of Local Government, 56 Fla. L. Rev. 373, 379 (2004). In addition, tax revenue typically goes to a general governmental fund, whereas revenue from fees is earmarked for a specific function. Joslin v. Regan, 406 N.Y.S.2d 938, 941 (N.Y. App. Div. 1978).

#_ftnref340      [340].     Scharff, supra note 337, at 185.

#_ftnref341      [341].     Id. at 185–87.

#_ftnref342      [342].     Id. at 186. We could not find a case from a state other than Texas that considers only the purpose behind a fee, but did not conduct an exhaustive search of case law in all fifty states. Thus, there may be others that apply a similar approach.

#_ftnref343      [343].     Id. at 186–89.

#_ftnref344      [344].     Id. at 187–88.

#_ftnref345      [345].     Id. at 188.

#_ftnref346      [346].     Peter Howard & Jason Schwartz, Think Global: International Reciprocity as Justification for a Global Social Cost of Carbon, 42 Colum. J. Envtl. L. 203 (2017).

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