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48 Harv. J. on Legis. 289 (2011)
Process Preemption in Federal Siting Regimes

handle is hein.journals/hjl48 and id is 291 raw text is: ARTICLE PROCESS PREEMPTION IN FEDERAL SITING REGIMES ASHIRA PELMAN OSTROW* Land use regulation has historically been a function of local governments. Congress left land use to the states; the states, in turn, empowered municipali- ties to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by an interjurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. Ac- cordingly, Congress has experimented with a variety of policies aimed at com- pelling local governments to site nationally relevant facilities. Federal siting regimes have ranged from federal delegation of regulatory authority to the states, on one end of the spectrum, to unitary federal preemption of state control, vesting exclusive siting authority in a federal administrative agency, on the other. This Article advances a more balanced approach to facilities siting termed Process Preemption. In a Process Preemption regime, Congress imposes fed- eral constraints on the siting process, but leaves primary decisionmaking power in the hands of local regulators. This Article argues that Process Preemption has the potential to further the effectiveness of federal land use policies because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use pri- orities, and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance of controversial siting decisions. I. INTRODUCTION Historically, land use regulation has been considered a matter of local concern. The federal government left land use to the states; the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions.' Today, however, formal distinctions between state and federal spheres of power have been supplanted by an interjurisdictional understanding of federalism, in which local authority to regulate land over- * Associate Professor of Law, Hofstra Law School. B.A., University of Pennsylvania, 1999; J.D., Columbia Law School, 2003. This Article is the Winner of the 2011 American Association of Law Schools' Scholarly Paper Competition. The author is grateful for the thoughtful comments and suggestions of Bo Abrams, Nestor Davidson, Joshua Fershee, Joel Goldstein, Susan Lorde Martin, Adam Macleod, Ryan Ostrow, Adinah Pelman, David Ruben- stein, Patty Salkin, Peter Salsich, Rose Villazor, Michael Wolf and especially, Erin Ryan, as well as to participants in the 2010 Southeast Association of Law Schools' New Scholars pro- gram and Hofstra Law School's Junior Faculty Forum and Summer Workshop Series. The author would also like to thank her outstanding research assistant, David L. Schwed, and her reference librarian at Hofstra Law School, Kevin Shelton, for their help with this project. 'Patricia Salkin & John R. Nolon, Practically Grounded: Convergence of Land Use Law Pedagogy and Best Practices, 60 J. LEGAL EDuc. 519, 523 (2011).

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