Do-It-Yourself biology, 3D printing, and the sharing economy are equipping ordinary people with new powers to shape their biological, physical, and social environments. This phenomenon of distributed innovation is yielding new goods and services, greater economic productivity, and new opportunities for fulfillment. Distributed innovation also brings new environmental, health, and security risks that demand oversight, yet conventional government regulation may be poorly suited to address these risks. Dispersed and dynamic, distributed innovation requires the development of more flexible tools for oversight and government collaboration with private partners in governance. This Article considers three types of responses to the challenges raised by distributed innovation.

Cities often test the existing limits of their regulatory authority in areas like environmental protection, labor and employment, and immigration. The last few years witnessed an explosion of preemptive state legislation attacking, challenging, and overriding municipal ordinances across a wide range of policy areas. But this hostility to city government is not new. In 1915, one professor observed that “the relations of states to metropolitan cities in this country is ‘a history of repeated injuries’ .  .  . [and] ‘repeated usurpations.’” This Article’s descriptive goal is to understand how an institutional system overtly dedicated to the principles of devolution can be so hostile to the exercise of city power. It first describes the twenty-first century attack on American cities by canvassing preemptive state legislation across a number of policy areas. It then turns to “Our Federalism’s” anti-urbanism, and describes how state-based federalism hinders municipal power generally, and how the U.S. Constitution favors rural over urban voters specifically. It then places this “anti-urban constitution” in the context of the historic skepticism of the exercise of city power. Finally, it considers the legal and political options available to cities in responding to these conflicts.

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute’s (ELI’s) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of some of the most creative and feasible environmental law and policy proposals from the legal academic literature each year. The pool of articles that are considered includes all environmental law articles published during the previous academic year. The law journal articles that are re-published and discussed are selected by Vanderbilt University Law School students with input from their course instructors and an outside advisory committee of experts. The purpose of this Comment is to highlight the results of the ELPAR article selection process and to report on the environmental legal scholarship for the 2017-2018 academic year, including the number of environmental law articles published in general law reviews versus environmental law journals, and the topics covered in the articles. It also presents the top 20 articles that met ELPAR’s criteria of persuasiveness, impact, feasibility, and creativity, from which five articles were selected to re-publish in shortened form, some of them with commentaries from leading practitioners and policymakers. Thus, the goal of this Comment is to provide an empirical snapshot of the environmental legal literature during the past academic year, as well as provide information on the top articles chosen by ELPAR.

Does the duty of environmental protection belong in the ethical rules for our profession? A number of scholars have explored whether lawyers should bear such duties. But little attention has focused on the possibility that “green ethics” would also be appropriate for judges. Rules of judicial ethics frame the manner in which judges take account of environmental concerns. At present, these rules provide very little guidance that is relevant to environmental matters. Many judges have a general inclination to favor private property rights or to defer to governmental approvals of development projects, but there is no countervailing authority that counsels judges to consider environmental priorities. This Article offers proposals for a series of reforms to the American Bar Association’s Model Code of Judicial Conduct to help to create conditions in which the legal system can play a more efficacious, inclusive and transparent role in environmental protection.

Cities have become a critical source of innovation across a wide array of policy areas that advance inclusion, equitable opportunity, and social justice. In the absence of state and federal action, cities and other local governments have taken the lead in enacting minimum wage and paid sick leave policies, expanding the boundaries of civil rights, tackling public health challenges, responding to emerging environmental threats, and advancing new technologies. But this expansion in the role of cities has been met with an increase in the use and scope of state preemption laws now crafted deliberately to strip local governments of their power to regulate. While this wave of “New Preemption,” seems without precedent, Prof. Richard Schragger’s article, The Attack on American Cities, reminds us that “hostility to city government is not new.” In fact, the recent surge in state preemption is built on a long history of anti-urbanism “that is deeply embedded in the structure of American federalism” and a function of enduring cultural biases. Schragger makes a compelling case that the recent explosion of preemptive state legislation is the latest in a long-term unbroken attack on cities. But it is important to note this most recent siege is distinctive in its magnitude, malice and disruption of democratic norms. 

Cooperative federalism can lead to more efficient and pragmatic environmental protection, and allow states to develop effective programs tailored to their needs and resources. Nevertheless, the future of the federal-state relationship in the environmental context is uncertain as state and federal priorities come into conflict: for instance, EPA’s proposal to revoke California’s authority to regulate tailpipe emissions of greenhouse gases. Recent reports have begun a discussion on the future of cooperative federalism and environmental protection, but significant questions remain unanswered. On February 28, 2019, ELI held a discussion of the opportunities presented by increased state autonomy in environmental protection, including panelists expert in interstate environmental coordination and with significant experience in environmental compliance and stewardship. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.