Scholarship that highlights the far-reaching consequences of the failure of American land use law to address climate change deserves our attention. That’s why, for the second year in a row, my JOTWELL review covers this critical issue. My choice last year, Jonathan Rosenbloom’s “Sacrifice Zones,” explained how local governments could deploy a variety of zoning strategies to reduce development in areas prone to natural hazards—including relocating residents.
This year, I recommend “Land Law Localism and the Climate Resilience Paradox” by Sarah J. Adams. Adams argues that we should not count on localities to reconcile their parochial motivations with the broader imperative to adapt governance frameworks to address climate change. Her detailed, expansive article urges us to recalibrate local land use regulations before we zone ourselves out of existence.
Adams begins by demonstrating that the primary mechanism by which localities regulate land use—zoning codes—are generally written to protect and preserve property rights and economic interests, and that these aims are often at odds with the need to advance climate resilience and adaptation. (Her lengthy discussion in Part II, providing myriad examples of this tension, interweaving race-related issues, and explaining the dubious, segregatory impact of local land use laws, is excellent.)
Adams explains how these conflicts lead localities to choose “protection” and “accommodation” strategies—like early-warning systems and sea walls—that facilitate development in hazard-prone areas. She acknowledges that these strategies can contribute to resilience, but she argues that over the long-term, “they facilitate hazard area occupancy and development that puts more people, structures, infrastructure, and cultural assets in harm’s way…[and] hasten[] the point at which communities will experience intolerable conditions.” (P. 64.)
Using flood risk as her key example, she delves into the National Flood Insurance Act of 1968, including a provision regarding localities’ adoption and enforcement of “adequate land use and control measures,” 42 U.S.C. § 4012(c). Despite this provision, the federal government neither requires nor incentivizes local governments to limit development in hazard areas. Adams calculates that just 12% of communities have modified their zoning laws in ways sufficient to earn discounts for their flood-insurance policyholders through a voluntary program created by the statute.
My team on the National Zoning Atlas, which has so far logged over a million pages of zoning codes across more than 9,800 jurisdictions, is producing evidence that complements this calculation. We have found that so-called floodplain zones do not necessarily limit development. In our online map, www.zoningatlas.org, users can toggle on the “FEMA Flood Map” layer to see the significant amount of development allowed by local zoning in areas subject to flooding. We have also found that many jurisdictions name floodplain zones in their zoning text, but fail to include those districts on the official zoning map. This mismatch renders the text reference meaningless.
Adams’ article has helped me understand our findings. She explains that local officials are often tempted to generate tax revenues from high-value waterfront development or build affordable housing in low-lying floodplains. They are driven by politics and the demands of existing property owners to capitalize on their investments—and kick the can down the road. Alarmingly, flooding (which she further covers in a companion article, “Federal Flood Policy and Maladaptation”) is just one of many climate hazards that Adams argues we are ill-equipped to avoid. Adams’ article warns us not to blindly extol the virtues of localism or the principle of subsidiarity (a preference for decisions made at the local level).
She might overstate when she says that scholars “[n]early ubiquitously” presume local governments are the proper authorities for a wide range of regulatory spheres. (My arguments against local control in this sphere go back to 2008, and other scholars have offered similar views.) That quibble aside, “Land Law Localism and the Climate Paradox” delivers a powerful rationale for rethinking the way we empower, require, or incentivize local governments to be part of a broader solution to our climate crisis.
Across her recent scholarship and in her prior work, Adams has articulated the mismatch, or maladaptation, between local laws and our long-term resilience, even survival. She argues that while making data-supported decisions now will be hard, it won’t be nearly as hard as the future we face without them. We would do well to heed her call to action.
