Earning Deference: Reflections on the Merger of Environmental and Land Use Law
The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary, and classrooms. Leading the way are several U.S. Supreme Court Justices who, in cases involving the U.S. Commerce Clause, Takings Clause, and §5 of the Fourteenth Amendment of the U.S. Constitution, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government.
Given this new jurispolitical reality, it is more important than ever that local government officials who are often (though, certainly, not always justifiably) viewed as occupying the bottom rungs of the ladder of governmental competence—take special care when operating beyond the scope of their "traditional" regulatory tasks. Local environmental law is perhaps the most important area in which local officials are stretching beyond their conventional roles. The purpose of this Dialogue is not to urge the prohibition of these regulations, for to do so would run contrary to my commitment to a more healthy environment for humans and other animals and living things. Instead, I wish to offer a caveat to local elected and appointed officials—and to the counsel who advise these important actors in the land development and preservation drama—regarding the "nature and extent" of environmentally flavored local regulatory activities. This caveat can be simply expressed: "Before implementing, applying, or enforcing local environmental law, make sure that you can demonstrate that you have earned deference."