State Siting Laws, Local Land Use Laws, and Their Interplay

A. Dan Tarlock

A. Dan Tarlock is Professor of Law, Illinois Institute of Technology, Chicago-Kent School of Law in Chicago, Illinois.

Congress has chosen in the past not to intervene directly in hazardous waste siting, and it is unlikely that they will change that course. The responsibility for siting new or expanded facilities has therefore become either a local one (From a land use perspective, the treatment, storage, and disposal (TSD) facility is treated as another conditional use for an industrial zone.) or, through preemption, a state function. Since Michigan's enactment of Mich. Comp. Laws § 299.501-526 in 1978, all major industrial states and most others have passes some form of siting legislation. Each statute describes a number of functions; I have selected several for discussion. All may not be found in a single statute, but they are common to most recent siting legislation.

Many statutes include a planning function to coordinate the need for new sites with those available, and then distribute that need around the state. The appointment of ad hoc siting boards responsible for making the siting decision is also common. At some point in the process a decision about preemption of local land use authority must be made. A number of states have chosen to preempt local land use authority, while anumber have chosen to preserve it. Still others employ subtle variations of preemption to [15 ELR 10237] maintain state control over the siting process. In addition to the usual technical assessment, many state statutes provide for enhanced public participation throughout the entire siting process. Non-regulatory approaches, including negotiation, bribes,¹ mediation, and arbitration, have also been adopted.

Because it is fundamental to the preemption issue and as yet unresolved in many states, we must ask why siting is a state responsibility. Most argue that state involvement is necessary because local governmental bodies are likely to greet any attempt to site a TSD facility in a parochial manner. A persistent theme in local government and land use law is a "me first" policy, where the city acts in its own interest, especially when protecting the health of its citizenry. The courts have limited power to curb this parochialism. Unless there is strong cause to suppress local action, the state judiciary is likely to validate a self-interested decision.

In recent years, however, the courts have become more aggressive in curbing certain applications of local parochialism. Three theories have supported these decisions, but only one has particular relevance to the TSD facility issue. The first relies on the vindication of constitutionally protected rights, but has little application to our discussion. The widely accepted principles of exclusionary zoning, as pioneered by New Jersey, New York, and Pennsylvania, have also provided justification for judicial intervention in local decisionmaking. Arguments under exclusionary zoning remain unclear, but appear to require extensions of constitutional theories of equal protection as yet unrecognized by the Supreme Court. As fascinating as they are, these arguments have limited relevance for TSD facility siting. The courts have made it clear that most anti-exclusionary zoning decisions are limited to the protection of housing opportunities for low and moderate income families. It would therefore be difficult to extend the doctrine to other applications.

The third justification for judicial moderation of local parochialism has been preemption. Whether expressly legislated, or implied by the courts,² the doctrine of preemption is particularly applicable to the siting of TSD facilities.

The conflict between local and state authority must be resolved by any state considering a TSD facility. Most states have addressed the problem directly with legislation. There is a tendency to view state preemption statutes as responses to the isolated problem of TSD facility siting, but there is, in fact, a long history of gradual transfers of certain local land use functions to the states. The industrial siting movement of the 1970s and what was once called the "quiet revolution" in land control are, I believe, the precursors of today's preemption statutes.³

Preemption is necessary to prevent local authorities from frustrating statewide efforts to manage hazardous waste. It is likely that local governments, if left alone, would choose a zero-risk siting strategy for any proposed TSD facility. In contrast, state waste management policies are more likely to be based on principles of risk minimization rather than risk elimination, and existing state statutes attempt a fair distribution of risk throughout the state. State programs usually incorporate risk/benefit analysis, and the state has a comparative advantage over local government in assembling and assessing the information needed to make responsible safety judgments. In illinois, for instance, local government, not the state, retains the siting authority, and has shifted the cost of assembling information to permit applicants. The locality must now hire its own municipal experts to assess the evidence. The cost of the localized program is enormous — the application fee to site a new TSD facility can be over $100,000. As between local government and the state, it is more economical and practical to make the risk assessment at the higher level.

It is important to point out that the preemption option, as I have described it, is not an argument for the elimination of local voices. It is an argument for the transfer of a government function — control over a specific land use — from a lower to a higher level of government. Preemption still recognizes the need for local participation and, as discussed in greater detail later, elaborate schemes have been developed to preserve it.

Also central to the preemption issue is the states' authority to preempt local zoning functions. I believe that in every instance the authority exists and can be validly exercised. In the few non-home rule states, this conclusion is obvious. Local units of government have no inherent right of self-rule, so the state can act as it pleases in local issues subject only to constitutional limitations. The issue becomes more complex in the majority of states where home rule is specifically provided for. Local governments argue that after delegating home rule power, the state can no longer act over local functions such as zoning. I don't believe that argument will prevail. In all home rule jurisdictions, the state has reserved the power to regulate in areas requiring statewide uniformity of treatment or where shared responsibility is appropriate. A number of recent decisions describe environmental regulation as an area to be shared between state and local governments, so that home rule challenges to preemption should fail.

In a recent Michigan case holding local land use authority properly preempted, the state court stated: "Lastly, the state management and disposal of hazardous wastes is clearly an area which demands uniform, statewide treatment. At present the state is confronted with a crisis as to where to dispose properly of wastes."⁴ The court went on [15 ELR 10238] to describe the horrors of previous waste disposal practices and concluded: "The legislature recognized that hazardous waste disposal areas evoke such strong emotions in localities that the decision as to where a landfill should go should not be given to a locality, which is far more swayed by parochial interests than the state."⁵ The Michigan legislature gave the siting authority to a centralized decision-maker who could act with uniformity in providing the most effective means of regulating hazardous waste. Courts in Ohio and Massachusetts have found similarly,⁶ and to my knowledge no state supreme court has invalidated a preemption on home rule grounds.

The more interesting question in the preemption discussion is how a state preempts local land use authority. A number of approaches have been taken.

The first is the straight "up-down" approach.⁷ Some states have instituted partial preemption, and exercise their authority in some, but not all, land use decisions. Other states have preempted local authority, but provide for administrative review of state actions. Still other exercise their preemptive authority only with extensive local involvement. Finally, where an operator and a local community negotiate an agreement under state supervision that includes the payment of money or other bribes, the state preempts to bring about non-regulatory solutions.

Let me review very briefly the approaches that have emerged, and introduce some classic illustrations. Kentucky and Maryland are among those states to make the cleanest up-down choices. Maryland completely preempts all local land use authority, and views the state siting procedure as a substitute for local process.⁸ On the other hand, Kentucky has carefully preserved local land use authority.⁹ The Michigan legislature initially preempted local land use authority,¹⁰ then reversed itself¹¹ and vested certain powers in the locality. Most states have wisely chosen other than the rigid and simplistic straight up-down model.

California and others adopting the partial preemption approach limit the local community's power to regulate existing facilities, but not new ones, and thereby create a state grandfathered preemption right.¹² California is now struggling to develop a new facility siting procedure. Several other states have chosen different varieties of partial preemption. Massachusetts, for instance, forbids a locality from changing its zoning once a siting application has been filed.¹³

Connecticut and Florida have introduced more sophisticated forms of preemption. The initial siting decision rests with the local community, but is subject to extensive review by a state siting board. Connecticut adds a super-majority requirement (i.e., a two-thirds vote of the siting board in order to override a local veto), which gives a strong voice to local concerns.¹⁴ Florida uses a more complex state review system that includes the governor and cabinet.¹⁵ Florida's approach is not so unusual in light of the state's sensitive environmental scheme and its history of gubernatorial and executive review of land use decisions.

Illinois has instituted a system of concurrent state and local vetoes that heavily favors local communities and complicates efforts to site new or expanded facilities outside heavy industrial areas.¹⁶ Even Chicago's South Side has joined the "not in my backyard" syndrome and raised tremendous opposition to recent siting proposals. Indiana, on the other hand, has developed a scheme of state review that gives much less weight to local voices.¹⁷

Minnesota,¹⁸ Michigan,¹⁹ and New Jersey²⁰ have enacted model siting legislation with planning and expanded public participation provisions.²¹ Preemption alone cannot solve the siting problem because the risks and benefits to local communities must be balanced. In these states, the planning process is expanded, and the legislation is quite precise in giving local communities a meaningful role. The theory that regulatory decisions should be tied to comprehensive planning is incorporated into their siting statutes. This approach ensures consistency and increases the credibility of the process. Equity is served by evenly distributing the risks associated with a TSD facility throughout the state.

Most siting statutes now offer increased public participation, including provisions for targeted notice to individuals and communities, and public hearings. In many states, hearings are expressly recognized as adjudicatory rather than rulemaking. Minnesota's siting statute²² combines all of these devices and includes legislative intervention and the participation of the state courts. It is a fascinating example of how much public participation can be crowded into a siting statute, and I will be interested to see how it does or does not work.

Be aware that a predominately technical siting process is bound to be a confrontational one, running a high risk of political failure. The imbalance of rational to irrational fear of TSD facilities can not be corrected, as some states have attempted, by simply adding to the usual list of technical considerations some meaningless, open-ended, and nontechnical factors for agency evaluation and decision-making. Planning alone is not sufficient, because it only brings forward sooner the obvious conflicts, then chills subsequent siting efforts. In order to succeed, the state must deal openly and sincerely with the community and local political bodies.

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Two positive remarks can be made regarding current siting efforts. First, because of their complexity they may be transforming the Resource Conservation and Recovery Act (RCRA) into a technology-forcing statute, something that Congress has not been able to do. Second, siting statutes may, in fact, reduce the legitimacy problem accompanying most siting efforts. Taking what I call the "Truman approach" to decision-making, existing statutes force politically unpopular decisions in a relatively decisive and responsible manner, and leave legitimacy to follow along behind as it will. Surprisingly enough, it often does.

1. I have received quite a bit of criticism for my use of "bribe." In Wolper, Economics, the term "bribe" is employed where someone has received money to do something; it does not imply an under-the-table or illegal payment. "Bribe" is also a more accurate term than "transfer payment" (usually compensation through increased public projects), because most communities welcome transfer payments, but very few will embrace a TSD facility. It takes more than an offer to build a park with swings to get a community to accept a TSD facility, making " bribe" more appropriate to this discussion.

2. Some courts have held that a comprehensive state program of hazardous waste regulation is an implied preemption of local land use authority. See City of Luonia v. Dept. of Social Services, 333 N.W.2d 151 (Mich. App. 1983); Glennon Heights, Inc. v. Control Bank and Trust, 658 P.2d 872 (Colo. 1983); Wambat Realty Corp. v. State, 362 N.E.2d 581, 7 ELR 20363 (N.Y. 1977).

3. Preemption of local land use authority need not include the preemption of common law nuisance actions. This distinction is significant because there is some indication that courts are relaxing the 'irreparable harm' requirement that has precluded successful nuisance actions against new and expanding TSD facilities. In the Village of Wilsonville v. SCA Services, Inc., 86 Ill.2d 1, 426 N.E.2d 824, 11 ELR 20698 (1981), the court did just that, and enjoined a facility having both federal and state EPA approval. With Superfund leading the way, the drift toward a strict liability standard of care for hazardous waste management will make it easier for citizen groups and communities to challenge siting decisions, not through administrative routes but through the common law.

4. Township of Cascade v. Cascade Resource Recovery, Inc., 118 Mich. App. 580, 583, 325 N.W.2d 500, 504 (1982).

5. Id. at 583, 325 N.W.2d at 504.

6. Town of Warren v. Hazardous Waste Facility Site Safety Council, (Worcester Super. Ct., 1983), Claremont Envtl. Reclamation Co. v. Weiderhold, 2 Ohio 3d 44, 442 N.E.2d 1278, 13 ELR 20466 (1982).

7. Either the complete preemption of all local land use authority over hazardous waste facility siting, or the absolute preservation of the local body's power to act in the field.

8. Md. Nat. Res. Code Ann. § 3-705(d).

9. K.R.S. 224.885(5).

10. As authorized by 80 P.A. 301 (1980).

11. Mich. Comp. Laws § 299-516 (1980), Mich. Stat. Ann. § 13.30(16) (Challaghan 1980).

12. Cal. Health and Safety Code § 25147 et seq.

13. Mass. Gen. Laws Ann. ch.21D § 12 (Law. Co-op 1984).

14. Conn. Gen. Stat. Ann. § 228-124.

15. Fla. Stat. Ann. § 403.723.

16. Ill. Rev. Stat. ch. 111 1/2, § 1001 et seq.

17. Ind. Code §§ 13-7-8.6, 13-7-13.

18. Minn. Stat. Ann § 115A.

19. Mich. Comp. Laws Ann. § 299-516.

20. N.J. Stat. Ann. § 13:1E-49 et seq.

21. See Utah Code Ann. § 26-14(a)-7, drafted by the speaker for the Chemical Manufacturer's Association, and 1983 Utah Law Rev. 324-57 (1983), criticizing that statute for its inadequate provisions for local participation.

22. Minn. Stat. Ann. § 115A.09, .21, .29.