As 2016’s national election made clear, striking ideological differences between cities and their surrounding states exist in many parts of the country. One way in which this divide manifests itself is in state governments passing laws with the sole purpose of outlawing particular local conduct. For instance, recent state legislation has prohibited local governments from establishing a minimum wage, from prohibiting the use of plastic bags, and from protecting the rights of transgender individuals to use the bathroom of their identified gender. These state actions do not create substantive law; instead, they merely curtail the grant of authority—known as home rule—to municipalities.
State override of local action in this way undermines the ability of local governments to address many kinds of harm. Local efforts to combat environmental issues seem particularly vulnerable to obstruction by state legislators. The trouble is, under traditional frameworks of state and local government law, this kind of targeted removal of local authority is likely justifiable. In consequence, legal scholarship on environmental localism has generally conceded failure within the home rule framework and has looked outside it for solutions to this problem. This Article explores whether acceptance of defeat in the face of state prohibitions on particular exercises of local environmental authority is warranted, and whether there is any path forward for local environmental policy making within the traditional framework.
Very generally, this Article proposes that elements of environmental law— namely, state constitutional provisions and the public trust doctrine—may offer a substantive basis for support of local authority in the face of targeted state removals of authority. This Article uses the example of local plastic bag bans to illustrate how the judiciary might employ these concepts. By making these elements part of the home rule analysis, courts may be able to provide some protection against targeted removals of local authority.