Thinking under the Box: Public Choice and Constitutional Law Perspectives on City-Level Environmental Policy
William and Mary Environmental Law and Policy Review. 40(1): pp. 200-234, 2015
Posted: 29 Apr 2016
Date Written: 2015
While state-level environmental policies are relatively well known and researched as complements to and gap-fillers for federal environmental policy in the U.S., a level of government below that — cities — remains less well-charted territory. Considering the prominence of urbanization in demographic and economic developments globally, this seems striking. Cities not only address traditional local environmental challenges such as land use, but increasingly broader issues such as climate change and sustainability more generally. The developments raise an important question: do cities face limitations in fulfilling such a role? This paper proposes to explore the limitations that local environmental policymaking may confront by innovatively combining two strands of research: public choice theory and constitutional law. The public choice-based theory of Paul E. Peterson famously argues that informal, economic limits constrain cities’ activities to those that further the city’s economic development. The Dormant Commerce Clause, on the other hand, defines a formal set of constitutional law limitations on city-level environmental policy-making. The limits are analyzed using a case study of extended producer responsibility, a rapidly growing form of policy that is indicative of modern approaches in environmental governance. From the dual perspective of public choice theory and constitutional law, cities are shown, in fact, to be relatively unconstrained in conducting environmental policy at the local level. Moreover, the study concludes that the combination of Peterson’s theory and the Dormant Commerce Clause offers mutually supportive insights on the judicial and political value reconciliation conundrums that city level decision-making may entail.
Keywords: Public Choice, Local Environmental Policy, Local Environmental Law, Constitutional Law, Dormant Commerce Clause, Urban, City, Extended Producer Responsibility (EPR)
JEL Classification: H70, K32, L51, R00
Suggested Citation: Suggested Citation