“Zoning Out” Climate Change: Local Land Use Power, Fossil Fuel Infrastructure, and the Fight Against Climate Change

Perron, Kevin

Cities’ efforts to use zoning laws to ban fossil fuel infrastructure demonstrates zoning’s potential viability in the fight against climate change. These efforts already have, and will continue to, inspire other climate-minded cities to imitate these actions. Indeed, a vice president of the Conservation Law Foundation of Maine suggested that the South Portland ordinance could be used as “a model for other communities to protect local interests from those who seek to do harm.” However, while courts have concluded that more traditional safety concerns are legitimate justifications for zoning laws hostile to fossil fuel infrastructure, they have yet to decide whether a zoning ordinance—hostile to fossil fuels and justified on climate change mitigation alone—would be upheld. This Note refers to such a hypothetical local ordinance, a potential model for climate-minded cities, as a “zoning out” ordinance. A “zoning out” ordinance is a local ordinance that prohibits expansion of fossil fuel operations and infrastructure (e.g., export terminals, pipelines) within the local jurisdiction, and is justified not by traditional safety concerns, but solely as a means to mitigate climate change.

The question of whether climate change mitigation is a sufficient justification for local zoning law and whether such a “zoning out” ordinance can survive legal challenge is the focus of this Note. Three considerations motivate this focus on a hypothetical “zoning out” ordinance premised on climate change alone. First, some cities may want to pass such ordinances but may not be able to persuade a court that the prohibited fossil fuel infrastructure would pose traditional health and safety risks. Second, a related point, fossil fuel companies may adapt their technologies and practices to mitigate their contribution to traditional health and safety risks, like particulate air pollution, to avoid challenges based on these traditional concerns. Third, and most importantly, it remains an open question whether courts will consider climate change an appropriate target of local zoning power.

Ultimately, this Note argues that municipalities can likely pass valid “zoning out” ordinances because climate change is a threat to a municipality’s health, safety, and welfare, which are interests traditionally protected by local zoning. Municipalities may, however, face nontrivial difficulty demonstrating that the ordinances are substantially related to their climate change mitigation goal because of the disparate scale of global climate change and the effects of an ordinance’s prohibitions. This Note also argues that these “zoning out” ordinances are not likely to offend the Dormant Commerce Clause because they will generally operate even-handedly with respect to similarly situated in-state and out-of-state actors, and although they incidentally burden interstate commerce, they will do so in a manner that advances a legitimate local interest (i.e., climate change mitigation) and only marginally affects the interstate fossil fuel market. These ordinances are not likely to be preempted by federal law. Finally, this Note argues that, given the history of land use as a traditional local power, the lack of federal climate change policy, and the current oil transportation regime, Congress should not preempt “zoning out” ordinances. However, if a patchwork of ordinances were to substantially threaten the interstate energy market, then the federal government should pass legislation regulating local zoning prohibitions on fossil fuel infrastructure.

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Columbia Journal of Environmental Law

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August 10, 2020