Process Preemption in Federal Siting Regimes

68 Pages Posted: 5 Dec 2010 Last revised: 3 Apr 2011

Ashira Ostrow

Hofstra University - Maurice A. Deane School of Law

Date Written: December 2, 2010

Abstract

Historically, land use regulation has been considered a matter of local concern. The federal government left land use to the states, and the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by a multi-jurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. To that end, Congress has experimented with a variety of preemption regimes aimed at compelling local governments to site nationally relevant facilities, such as radioactive waste disposal facilities and telecommunication towers.

This Article explores the spectrum of federal preemption options, ranging from federal delegation, empowering states to independently design and implement siting regimes, to unitary federal preemption, vesting siting authority in a federal administrative agency and displacing traditional state and local land use authority. In particular, this Article identifies an innovative approach to facilities siting, termed “Process Preemption.” In a Process Preemption regime Congress imposes federal constraints on the siting process, but leaves primary decisionmaking power in the hands of local land use regulators. This Article argues that Process Preemption has the potential to aid in federal siting schemes because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use priorities and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance, of controversial siting decisions.

This Article is this year's co-winner of the 2010 AALS Scholarly Paper Competition.

Keywords: Federalism, Zoning, Siting, Preemption, Land Use, Property, Local Government

Suggested Citation

Ostrow, Ashira, Process Preemption in Federal Siting Regimes (December 2, 2010). Harvard Journal on Legislation, Vol. 48, 2011; Hofstra Univ. Legal Studies Research Paper No. 10-41. Available at SSRN: https://ssrn.com/abstract=1719050

Ashira Ostrow (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

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