Congress, White House Take Aim at Local Democracy

Published February 15, 2010

In most states and metropolitan areas, substantial policy issues such as zoning and land use decisions are largely under the control of those who have a principal interest—local voters who actually live in the respective cities, towns, villages, townships, and unincorporated county areas. That may be about to change.

Two congressional initiatives—the Boxer-Kerry “cap and trade” bill and the Oberstar transportation reauthorization bill—and the Obama administration’s “Livability Partnership” take direct aim at local democracy as we know it.

Boxer-Kerry Threat
The first threat is the proposed Senate version of the “cap and trade” bill written by Sen. Barbara Boxer (D-CA) and Sen. John Kerry (D-MA). Their Clean Energy Jobs and American Power Act (S. 1733) would require metropolitan planning organizations (MPOs) to develop greenhouse gas emission reduction plans. In these plans, the legislation would require consideration of issues such as increasing transit service, improvements to intercity rail service, and “implementation of zoning and other land use regulations and plans to support infill, transit-oriented development or mixed use development.”

This represents a significant step toward federal government adoption of much of the “smart growth” or “compact development” agenda. The incentives that would be created could well spell the end of local control over zoning and land use decisions.

The bill includes language claiming it does not intend to infringe “on the existing authority of local governments to plan or control land use.” Experience suggests, however, this would provide little comfort in the behind-the-scenes negotiations that occur when a metropolitan area runs afoul of Washington bureaucrats.

Heavy-Handed Federal Intervention
The federal housing, transportation, and environmental bureaucracies have also supported compact development policies. As these agencies develop regulations to implement the legislation, they could be emboldened to make it far more difficult for local voters to retain control over land use decisions.

There could be multiple repeats of the heavy-handedness exercised by the EPA when it singled out Atlanta for punishment over air quality issues. In response, the Georgia legislature was essentially coerced into enacting planning and oversight legislation more consistent with what EPA bureaucrats wanted. No federal legislation granted EPA the authority to seek such legislative changes, yet they were sought and obtained.

There is also considerable support for the compact development agenda at the metropolitan-area level. The proclivity of metropolitan and urban planners toward compact development is so strong as to require no encouragement by federal law. The emerging clear intent of federal policy to move land use development to the regional level and to densify existing communities could embolden MPOs to propose plans that pressure local governments to conform their zoning to central plans (or overarching “visions”) developed at the regional level.

Surface Transportation Reauthorization
The second big threat to local authority is the Surface Transportation Authorization Act (STAA or reauthorization) draft released by Rep. James Oberstar (D-MN), chairman of the House Transportation and Infrastructure Committee. This bill is riddled with requirements regarding consideration of land use restrictions by MPOs and states.

Unlike the Boxer-Kerry bill, the proposed STAA includes no language denying intention to interfere with local land use regulation authority.

Like Boxer-Kerry, the Oberstar bill would give significant new power to the Department of Transportation and the Environmental Protection Agency and poses similar longer-term risks.

Obama’s ‘Livability Agenda’
These legislative initiatives are reinforced by the Obama administration’s “Livability Agenda,” a partnership among the EPA, the Department of Housing and Urban Development, and the Department of Transportation.

Among other things, this program is principally composed of compact-development strategies, including directing development to certain areas, which would materially reduce the choices available to local government. Elements such as these could be included in an eventual STAA bill introduced on behalf of the Obama administration.

These bills would force communities to face greater traffic congestion, higher congestion costs, and increased air pollution. As EPA models indicate, more traffic congestion, which is inevitable in the more dense environments that would result, produces more pollution than more freely flowing traffic, and the resulting higher traffic volumes make this intensification even greater.

“Directed development” also tends to increase land prices, which makes housing more expensive, hurting home buyers and renters. It is particularly injurious to low-income households.

Quick Action Needed
The nation’s local government officials should “weigh in” on these issues now, while the legislation is being developed. If they wait, they could find themselves too late to the table.

Local citizens and voters also need to be aware of the risk. It will be too late when MPOs or other organizations, whether at their own behest or that of a federal agency, force the character of neighborhoods to be radically changed.

Without quick and concerted action to curtail these initiatives, local democracy will be largely dead, a product of a system that concentrates authority—and perceived wisdom—in the hands of the central governments at the regional and national levels.

Wendell Cox ([email protected]) is a visiting professor at the Conservatoire National des Arts et Metiers in Paris, France. He served three terms on the Los Angeles County Transportation Commission and is the author of War on the Dream: How Anti-Sprawl Policy Threatens the Quality of Life. An earlier version of this article appeared at Reprinted with permission.