. 4
( 16)


ef¬ciency, as in Genesis. Among other things, local governments also determine the
design of cities and towns that either require carbon-heavy auto use or encourage
The New Zealand Environment Court expressed extreme skepticism about local
governments™ ability to incorporate global concerns about climate change into their
decision making. Rather, it envisioned them as trapped by parochial concerns anal-
ogous to those famously described by Garrett Hardin as producing the “tragedy of
the commons,”8 a phrase that has become a trope in environmental law. Hardin
described herdsmen following rational incentives as tragically overgrazing the com-
mons necessary for their livelihoods.9 Many scholars following Hardin have further
illuminated the traps precluding rational actors from preserving shared or “com-
mon pool” resources.10 The scholarship on this problem largely presumes that there

Id. 3“5, 39“41.

1991 S.N.Z. No. 69.

See id. § 120; see also New Zealand Ministry of Justice, Environment Court, http://www.justice

.govt.nz/environment/index.html#jurisdiction (last visited Jan. 3, 2008) (describing the Environment
Court™s jurisdiction).
Genesis, [2005] N.Z.R.M.A. 541, ¶ 228.

Id. 223 (quoting Report of the Board of Inquiry: Proposed Taranaki Power Station “ Air

Discharge Effects 7.103 (Feb. 1995)); Hardin, supra note 1.
Hardin, supra note 1, at 1244.
10 Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective
Action 2“8 (1990) (summarizing the literature). For a summary of scholarship criticizing Hardin™s
theory, see Daniel H. Cole, Pollution and Property: Comparing Ownership Institutions
for Environmental Protection 15“16 (2002). As Cole explains, none of the scholarship criticizing
Katherine Trisolini and Jonathan Zasloff

are only two ways out of this trap “ privatization of the resource or imposition of
resource protection by an external sovereign.11 Few are sanguine about the prospects
of resolving the commons problem without one of these two solutions. On this view,
we would not expect local governments “ as small, individual users of the global
commons “ to tackle climate change constructively.
Yet, contrary to this tragic vision of resource users, we observe an apparent move-
ment among U.S. cities12 to tackle climate change even when it appears to be
against their immediate interest “ at least as those interests have traditionally been
understood.13 Thus, Genesis symbolizes a cluster of issues far broader than one dis-
pute. It presents, rather, an opportunity to consider how local governments™ actions
on climate change can both inform theories of urban governance and enrich our
understanding of relationships among varying international actors.
Although ostensibly categorized as climate change litigation, Genesis inspires
comparison with political decision making by city governments in the United States
rather than with judicial determinations for several reasons. Genesis ¬ts uneasily
into a general discussion of climate change litigation because it was not really a
piece of litigation at all, at least not in the way that American observers might
think of it. Rather than a judicial proceeding, it more closely resembles an appeal
from a lower to a higher level within an administrative agency empowered to make
substantive policy. It also bears a striking similarity to an administrative appeal
from a city™s planning commission to its city council in the United States. The

Hardin undermines his “chief insight” that “open access resources tend to be unsustainably exploited”
absent the imposition of a regime for their protection. Id. One recent work, however, challenges the
common assumption that climate change presents a tragedy of the commons scenario at all. Rather,
the authors propose that subglobal governments may unilaterally regulate climate change without
behaving irrationally because regulation provides some bene¬t relative to no regulation at all. See
Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of
Climate Change, 32 Ecology L.Q. 183, 188 (2005).
See Ostrom, supra note 10, at 8“13; Engel & Saleska, supra note 10, at 191.

Cities, of course, do not comprise all local governments. The Franklin District Council itself repre-

sented a different type of local government. For simplicity of expression, however, we will use “cities”
and “local governments” interchangeably unless there is a particular reason to be more speci¬c.
See infra Section 3. Note that many cities around the world have become involved in this movement

to combat climate change. We discuss the role of U.S. cities because they provide a model of local
governments with apparently clear disincentives to take this action and because, given the federal
government™s refusal to implement mandatory carbon reductions, their decision to do so particularly
con¬‚icts with the accepted model of local action.
We note, however, that although an increasing number of cities have autonomously initiated
policies to reduce their carbon footprints, some local governments have resisted implementation
of carbon reduction plans. San Bernardino County, California, for example, initially refused to
incorporate robust climate change analysis and mitigation into revisions to its General Plan, a
required document under California law that governs the physical development of land within the
county™s jurisdiction. After being sued by the California attorney general for failing to adequately
assess and mitigate the climate change impacts of updates to its plan, the county and the attorney
general reached a settlement which requires the county to develop a Greenhouse Gas Emissions
Reduction Plan. See California v. County of San Bernardino, No. CIVSS 0700329 (Cal. Sup. Ct.
Aug. 28, 2007). Order Regarding Settlement, available at http://ag.ca.gov/cms_pdfs/press/2007“08-
Cities, Land Use, and the Global Commons 75

Environment Court™s specialized jurisdiction empowers it to vet applications for
water permits, subdivision approvals, zoning and planning designations, and to
conduct enforcement actions “ matters usually dealt with by administrative bodies
such as planning commissions, water boards, or even city councils in the United
States.14 Unlike the district courts in New Zealand that try common civil cases, the
Environment Court is not bound by the same rules of evidence and its hearings
occur in a much less formal environment, somewhat like a local agency hearing in
the United States.15
We consider the theoretical assumptions underlying the Environment Court™s dim
view of local governments through the lens of land use planning by municipalities
in the United States, which presented nearly a mirror image of the context of
the Genesis case in two important respects. First, while New Zealand™s central
government has expressly set out to address climate change through national policy,
the U.S. government expressly rejected the Kyoto Protocol and refused to adopt
mandatory emissions reductions during George Bush™s presidential administration
(2000“2008), the precise period during which U.S. mayors rapidly signed up to
address the issue. Second, while the New Zealand Resource Management Act
provides the Environment Court with de novo review of district council decisions,
local governments in the United States enjoy substantial discretion in land use
matters, which are generally conceived of as matters of eminently local concern on
which they are the ¬nal arbiter.16
The relationship between local government and climate change policy is thus
particularly critical in the United States. As of this writing, the federal government
has yet to adopt emission reduction legislation despite the inauguration of President
The Environment Court™s work includes:

r “Designations authorising public works such as energy projects, hospitals, schools, prisons, sewage
works, refuse land¬lls, ¬re stations, major roads and bypasses; and also major private projects, for
example, dairy factories, tourist resorts, timber mills and shopping centres.
r Classi¬cations of waters, water permits for dams and diversions, taking of geothermal ¬‚uids, dis-
charges from sewage works, underground mines; maximum and minimum levels of lakes and ¬‚ows
of rivers, and minimum quality standards; and water conservation orders.
r Land subdivision approvals and conditions, development levies, car parking contributions, reserve
contributions, development levy fund distributions, road upgrading contributions, regional roads,
limited access roads, and stopping roads.
r Environmental effects of prospecting, exploration, and mining, including underground, open pit
and alluvial mining.
r Enforcement proceedings (including interim enforcement orders), declarations about the legal
status of environmental activities and instruments, existing and proposed, and appeals against
abatement notices.”
http://www.justice.govt.nz/environment/index.html#jurisdiction (last visited Jan. 2, 2008).
See id.

The U.S. judiciary reviews land use actions, of course, but defers to local bodies. Even in “quasi-

judicial” actions, where local decision-makers are theoretically applying preexisting standards, review
is con¬ned to whether “substantive evidence” in the record supports the decision-maker™s judgment.
For legislative acts, courts accord to local bodies™ judgments a strong presumption of validity. Both
notions are hornbook law. See Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use
Planning and Development Regulation Law § 5.33 (2003).
Katherine Trisolini and Jonathan Zasloff

Obama who favors such action. And even state legislation regarding global warming
leaves a large policy space open for municipal action.17 But most importantly, local
control over land use policy means that cities will play a major role in determining
if the United States can reduce its emissions suf¬ciently to mitigate climate change.
Scholars thus are in need of a theory to explain local governments™ policy affecting
this global common pool resource. We cannot provide such a theory at this point,
but we do set forth a framework for developing one. We suggest that analogies
to international relations theory may help expand upon current theories of urban
politics. We also ¬nd that the Environment Court™s conclusion concerning the
competence of local governments to grapple with climate change is less certain than
the Environment Court assumed.


The Genesis case originated as a matter of local concern in the Franklin District
on the North Island of New Zealand. Genesis Power™s proposal to build nineteen
wind turbines on the Awhitu Peninsula begat an unusual opposition alliance of
horse trainers and representatives of New Zealand™s indigenous population. The
Awhitu Peninsula land was an important element of the cultural heritage of New
Zealand™s Tangata Whenua (literally, people of the land), the ¬rst people to settle
in New Zealand.18 The Te Iwi O Ngati Te Ata people objected because the project
would adversely affect an area of cultural importance and because, prior to Genesis
Power™s application for approval, no survey had been performed to discern the areas of
cultural signi¬cance.19 Owners of local, decades-old equestrian facilities feared that
vibrations, visual stimulation, and noise from the construction and operation of the
wind farm would spook the horses and undermine their training, racing, and other
horse-related businesses.20 The project objectors argued that they had no objection
to the project per se, but not here. The location of this particular project, they

See, e.g., California Global Warming Solutions Act of 2006, Cal. Health & Safety Code §§

38500“38599 (West Supp. 2007). This Act directs the State Air Resources Board to achieve emission
reductions through energy conservation, increased use of renewables, cap-and-trade programs, and
directions to state regulators to reduce emissions from motor vehicles. Id. But it says nothing about local
land use authority. For a summary of state efforts, see Pew Center on Global Climate Change &
Pew Center on the States, Climate Change 101: State Action (Oct. 2006), available at http://
www.pewclimate.org/docUploads/101_States.pdf (last visited Dec. 2, 2008); Pew Ctr. on Global
Climate Change, Learning from State Action on Climate Change (Mar. 2007), available at
(last visited Jan. 2, 2008).
Genesis, [2005] N.Z.R.M.A. 541, 7 (Env. C.) (“The Awhitu Peninsula has been described as pos-

sibly one of the most densely populated areas of the Auckland Province, prior to European con-
tact. Te Iwi O Ngati Te Ata are the tangata whenua. They have a long and close association
with the Peninsula. It accordingly is very special to them as part of their cultural heritage.”) (cita-
tion omitted). For background on Tangata Whenua, see Tangata Whenua, People of the Land,
http://www.enzed.com/tw.html (last visited Jan. 2, 2008).
Genesis, [2005] N.Z.R.M.A. 541, 38.

Id. 37, 129“63.
Cities, Land Use, and the Global Commons 77

argued, would adversely impact the “visual, landscape, natural character, amenity
and cultural values in the environs of the site . . . and the surrounding rural area;
and the current, lawfully established, use of the properties adjacent to the proposed
wind farm site.”21
As noted previously, the Franklin District Council refused consent because of
the adverse impacts to the landscape, the Tangata Whenua, and the equestrian
facilities.22 The Council™s decision reminds us that local governments must directly
answer to constituents whose way of life often may rely on existing land use patterns
and whose cultural heritage may be disrupted by changes to the landscape. Genesis
suggests potential limitations on local governments™ ability to promote land use
changes that help reduce greenhouse gas emissions when those changes disturb
settled expectations that existing land uses will continue and will not be compromised
by unfamiliar uses.
Project proponents sought review before the Environment Court, which reviews
the Council™s decision pursuant to the Resource Management Act. On appeal, the
parties™ stipulated statement of facts sets forth the numerous environmental bene¬ts
of the proposed wind farm. They agreed that it would create security of supply by
diversifying New Zealand™s generating base and providing 18 MW of power, enough
to supply 7500 households per year, or 37% of the homes in Franklin District
and 0.18% of New Zealand™s annual electricity consumption; reduce greenhouse
gas emissions by generating electricity without emitting greenhouse gases during
operation and emit 40,000 fewer tons of CO2 per year than a comparable coal-¬red
power plant; reduce dependence on the national grid because of the proximity to
the source of the demand; reduce transmission losses; provide a reliable energy
resource; provide development bene¬ts of wind energy generally; and contribute to
New Zealand™s renewable energy target.23
The Environment Court identi¬ed four potential negative impacts: “(i) effects
on the visual amenity of the area “ including effects on the landscape and natural
character; (ii) noise effects on areas of recreation and workplaces; (iii) various horse-
related effects; and (iv) effects on tangata whenua.”24 The Environment Court
acknowledged that the Te Iwi O Ngati Te Ata “have a long and close association with
the [Awhitu] Peninsula,” making it a very special part of their cultural heritage.25
Nonetheless, it dismissed the Tangata Whenua concerns because it found that
most of the sites had been degraded or were of questionable cultural value, and
that the project conditions would be suf¬cient to protect cultural artifacts.26 The
Environment Court found most of the other negative impacts to be minimal as well.

Id. 43(i)“(ii).

Subsequent to the lodging of the appeal, Genesis amended the project to address several of the

Franklin District Council™s concerns by removing one turbine of the original nineteen proposed and
relocating two. At that point, the Council amended its position to “not opposing” the project. Id. ¶ 42.
Id. 64(vi)(a)“(g).

Id. 67.

Id. 7.

Id. 212(v).
Katherine Trisolini and Jonathan Zasloff

The Environment Court acknowledged one major adverse impact of the project,
that the “scale of the turbines is such that they would dominate the surrounding
area and undermine the visual integrity of the natural character and landscape of
the coastal environment.”27 However, the Environment Court emphasized that the
Resource Management Act™s mandate to preserve the coast™s “natural character”
and protect it from “inappropriate development” must be subordinated to the Act™s
general purpose to provide for “sustainable management.”28 Among the factors to
be considered in assessing appropriate development in the context of sustainable
management, the Resource Management Act required the Environment Court to
consider “the effects of climate change and the bene¬ts to be derived from the
use and development of renewable energy.”29 The Court concluded that the latter
outweighed impacts to the coastal environment.
Given the Environment Court™s factual ¬ndings dismissing the majority of impacts
and its conclusion that sustainable management outweighed the mandate to pre-
serve the coast™s natural features, it could have based its decision entirely on these
factual elements. Instead, the Environment Court includes a theoretical discussion
suggesting that it acts as an agent of the national government in ensuring protec-
tion of common pool resources that would otherwise be managed ineffectively by
individuals and localities.
The Environment Court stated that Parliament™s amendment of the Resource
Management Act in 2004 to include explicit consideration of climate change pro-
vided “a clear recognition by Parliament of both the importance of the use and
development of renewable energy and the need to address climate change, both
of which are key elements in the proposed the wind farm.”30 In response to the
project opponents™ contention that the project did not warrant the environmental
cost because reduction in greenhouse gas emissions attributable to the project would
be de minimis, the Environmental Court quoted at length from a passage authored
by the Board of Inquiry in a report rejecting claims that a power station™s contribution
to worldwide CO2 emissions, and hence climate change, would be negligible:

An implication could be taken from this statement that, as the contribution of the
proposed power station to the total world emissions of CO2 would be miniscule,
then it would make no difference to any global warming effects whether the power
station were to be built or not.
We do not accept the argument. To do so would imply that as the world™s CO2
emission is composed of a great number of small emissions, the effect of any one
of them could be discounted. But if one, why not more, or many, or, indeed,
all? Without the Convention, and united efforts toward compliance, the situation
becomes another example of what the economist Garret Hardin called the “tragedy
of the Commons” in his famous article bearing that title. Each man is locked into

Id. 215.

Id. 215“16.

Id. 224 (citing Resource Management (Energy and Climate Change) Amendment Act, 2004 S.N.Z.

No. 2 (amending Resource Management Act, 1991 S.N.Z. No. 69, § 7)).
Id. 220.
Cities, Land Use, and the Global Commons 79

a system that compels him to increase his herd without limit in a world that is
limited. Ruin is the destination toward which all men rush, each pursuing his own
best interest in a society that believes in the freedom of the commons. Freedom in
a common brings ruin to all.
Here because there is no one owner of an exploitable common resource, in this
case the air as a receiver of carbon dioxide, the resource becomes overused and
ill-used or even destroyed.
Furthermore, even though the emission from the proposed power station is small
by world standards, nevertheless the harm or potential for harm, throughout the
world is very large. A small proportion of a very large amount may itself be large.31

The Environment Court emphasized that Parliament, through its 2004 amend-
ments to the Resource Management Act, af¬rmed the Board of Inquiry™s view that
New Zealand must address climate change.32 Moreover, Parliament had “reinforced
the intention” of requiring the Environment Court to pay particular attention to cli-
mate change.33 The Environment Court took this mandate as its authorization to
answer the Hardin problem by assuming the role of outside sovereign “to ensure
present people and communities do not, in pursuit of their well-being, destroy
existing stock of natural and physical resources so as to improperly deprive future
generations of the ability to meet their needs.”34
It is noteworthy that, even prior to the 2004 amendments, the Environment Court
presumed that climate change could only be addressed effectively at the national
level. The Environment Court™s 2002 decision in Environmental Defence Society
(Inc.) v. Auckland Regional Council35 recognized that climate change is a “serious
concern” that “is likely to result in signi¬cant changes to the global environment,
including New Zealand and the Auckland region.”36 Despite recognizing the scien-
ti¬c reality of climate change, however, the Environment Court in 2002 refused to
grant the Environmental Defence Society™s request to impose a mitigating condition
on the Auckland Regional Council™s air discharge approval of a 400 MW gas-¬red
combined cycle power station. In refusing to require the power plant owner to offset
its carbon dioxide emissions by planting trees to act as carbon sinks, the Environment
Court stated that New Zealand had a “clear preferred policy . . . to address green-
house gas emissions . . . at a national level to ensure consistency of approach to guar-
antee an ef¬ciency compatible with achieving the best social environmental and eco-
nomic outcome.”37 Although not ruling on the District Council™s claim that such a
condition was outside of its jurisdiction, the Environment Court emphasized the dif-
¬culty the Auckland Regional Council would have enforcing and monitoring such a

Id. 223 (quoting Report of the Board of Inquiry, supra note 8, 7.102“7.104).

Id. 220.

Id. 224.

Id. 225.

[2002] N.Z.R.M.A. 492 (Env. C.).

Id. 65, quoted in Genesis, [2005] N.Z.R.M.A. 541, 221.

Id. 88.
Katherine Trisolini and Jonathan Zasloff

condition if trees were planted outside of the Auckland region.38 Thus, the Environ-
ment Court has twice presumed that national action constitutes the only effective
and appropriate way to address the climate commons on the grounds that local
governments will be either unwilling or unable to successfully address this problem.


The widely accepted understanding of the dif¬culties in resolving commons prob-
lems, as exempli¬ed by the Environment Court™s decision in Genesis, suggests that
local governments will not address climate change effectively in their decision mak-
ing on land use matters. This would be particularly true of cities in the United States
given the lack a federal mandate. Yet a number of municipalities in the United
States are interjecting themselves into the national and international policy arena by
tackling climate change despite apparently strong institutional incentives to avoid
this issue. This is particularly surprising because of the diffuse nature of the bene¬ts
and the localized nature of the costs. Although Elinor Ostrom has observed users
of common pool resources autonomously generating successful allocation systems
from the bottom up without private ownership, her analysis focuses on smaller-
scale resources such as ¬sheries, grazing meadows, and irrigation institutions.39
Thus, while her work inspires us to recognize that local users may be capable
of addressing commons problems in the absence of private ownership or imposi-
tion of regulation from a superseding sovereign, it does not help us understand the
actions of municipalities tackling the global common resource implicated in climate
The following section discusses our reasons for ¬nding it unlikely that munici-
palities in the United States would address climate change and then discusses the
surprising indications that a number of them seem to be doing so. In order to under-
stand these actions, we then turn to analogies with international relations theory
to expand on current theories of urban politics and begin working on a model of
municipal action on climate change.
Local governments™ control over many land use decisions in the United States
can have a monumental impact on climate change. For example, their planning
approach has a dramatic impact on transportation choices. One-third of all the
carbon dioxide that enters the atmosphere in the United States comes from the
transportation sector.40 This sector causes more CO2 emissions than any other, and
since 1980 its emissions have also been growing the fastest,41 consuming seven out
of every ten barrels of oil that the United States uses.42

Id. 92.

See Ostrom, supra note 10.

See Eileen Claussen, Foreward to David L. Greene & Andreas Schafer, Pew Center on

Global Climate Change, Reducing Greenhouse Gas Emissions from U.S. Transportation ii
(May 2003), available at http://www.pewclimate.org/docUploads/ustransp.pdf.
Greene & Schafer, supra note 40, at 2“3.

Id. 3.
Cities, Land Use, and the Global Commons 81

Efforts to lessen transportation™s role in global climate change have focused largely
on making vehicles more fuel ef¬cient and the fuel they run on cleaner. Yet Amer-
icans spend more and more time behind the wheel every year. As the Center for
Clean Air Policy warns, growth in vehicle miles traveled in the United States “has
outpaced population growth and is projected to continue to outstrip improvements
in vehicle ef¬ciency.”43 Sprawling residential and commercial development is the
chief problem. For many Americans, cars are the most practical, and often the only
way, to get to work, stores, entertainment, social gatherings, or grandmother™s house
for the holidays.
Moreover, vehicle miles traveled (or “VMT”) can increase drastically at the small-
est level of urban planning. Traditional Euclidean zoning “ the type preferred by
most suburbs, possibly because of its salutary impacts on property values “ requires
the radical separation of uses. Homeowners cannot even walk to the supermarket;
they must drive there because commercial and residential neighborhoods are usu-
ally separated by major arterials.44 This separation is highly signi¬cant, as nearly
40% of vehicle miles traveled are for local trips, not commuting.45
The automobile™s signi¬cant contribution to emissions has put a distinctly green
cast on the smart growth and New Urbanist views of planning. To completely
de¬ne these views would require an article in itself, but for our purposes, they hold
that sprawling development increases automobile use, leading to greater congestion
and pollution. Their solution is more compact, higher-density development, which
allows for greater use of mass transit. Moreover, the possibility of residents walking to
amenities and essential services is seen as the critical test of appropriate neighborhood
design. New Urbanists also favor mixed-use developments with narrower streets to
allow for a pedestrian-friendly character.46

Progressive Policy Institute, Driving Down Carbon Dioxide (Nov. 24, 2003), http://www.ppionline

.org/ppi_ci.cfm?knlgAreaID=116&subsecID=900039&contentID=252224 (quoting Center for Clean
Air Policy); see also Greene & Schafer, supra note 40, at 6 (“Transportation energy use and
greenhouse gas emissions are increasing because the growth of transportation activity exceeds the rate
of improvement in energy ef¬ciency and because little low-carbon fuel is used.”) (italics omitted).
See Peter Calthorpe, Land Use and Building the American Community, Presentation at the Fourth

Annual Land Use Conference, The Rocky Mountain Land Use Institute, University of Denver College
of Law (1996) (videotape, on ¬le with authors).

A good characterization of New Urbanist development is found at the website of the Congress for the

New Urbanism:
r Rule out any project that is gated, that lacks sidewalks, or that has a tree-like street system, rather
than a grid network. The project as a whole should connect well with surrounding neighborhoods,
developments, or towns, while also protecting regional open space.
r Rule out “single-use” projects that are just housing, retail, or of¬ce. The various types of building
should all be seamlessly integrated “ from different types of housing, to workplaces, to stores.
r The project should have a neighborhood center that is an easy and safe walk from all dwellings
in the neighborhood. Buildings should be designed to make the street feel safe and inviting, by
having front doors, porches, and windows facing the street “ rather than having a streetscape of
garage doors.
r The project, and particularly the neighborhood center, should include formal civic spaces and
Katherine Trisolini and Jonathan Zasloff

Whatever the other pros and cons of the New Urbanist/smart growth paradigm,47
any actual decrease in VMT requires it. That need creates a signi¬cant problem.
Unlike in New Zealand, where the Environment Court could force consideration
(and prioritization) of national concerns, land use in the United States has a nearly
sacrosanct position as a local concern.48 But the most powerful incentives to cities
all appear to point against a low-VMT planning policy. Indeed, as explored subse-
quently, cities might encourage auto dependency as a way of attracting commerce
and capital.49
The bene¬ts of mitigating climate change are about as widely diffused as possible;
the city incurring the costs of adaptation bears them by itself “ a highly unfavorable
calculus. And those costs of adaptation are precisely ones that cities should be loath to
endure. Consider the most basic element of local public ¬nance: the “capitalization”
of public services into home values. Although no one likes paying local property
taxes, those taxes eventually lead to higher property values because of the public
services they pay for. This is hardly an earth-shattering insight; everyone knows that “
all things being equal “ homes in a town with excellent public schools will cost more
than those in its neighbor with poor ones.
Not everyone lives in high-tax, high-service jurisdictions, of course. Instead, people
vote with their feet. In the 1950s, economist Charles Tiebout famously hypothesized
that local governments could ef¬ciently provide public goods because individuals
could “shop” among local jurisdictions, choosing the jurisdiction that provides their
optimal mix of taxes and services. Local political entrepreneurs, the theory states, will
compete to attract mobile consumer-taxpayers, offering distinct tax-service packages
to suit consumer demand.50
Yet simply relying on property taxes to maintain the desired mix of taxes and
services is highly unstable. Under the Tiebout scheme, lower-income individuals
have a great incentive to migrate to wealthy communities to free ride on the larger
r Finally, there is the “popsicle test.” An eight-year-old in the neighborhood should be able to bike
to a store to buy a popsicle without having to battle highway-size streets and freeway-speed traf¬c.
http://www.cnu.org/charter (last visited Jan. 3, 2008).
Some scholars see sprawling development as bene¬cial, and thus object to New Urbanism. See, e.g.,

Peter Gordon & Harry W. Richardson, Are Compact Cities a Desirable Planning Goal?, 63 J. Am.
Plan. Ass™n 1 (1997). This position is effectively critiqued in Reid Ewing, Is Los Angeles-Style Sprawl
Desirable?, 63 J. Am. Plan. Ass™n 107 (1997).
See, e.g., Robert C. Ellickson & Vicki L. Been, Land Use Controls: Cases and Materials

29 (3d ed. 2005) (“Public land use regulation in the United States traditionally has been mainly
the province of local governments.”); Richard L. Briffault, Our Localism: Part I “ The Structure of
Local Government Law, 90 Colum. L. Rev. 3 (1990) (“Land use control is the most important local
regulatory power. . . . [In land use], state-delegated power, supported by judicial attitudes sympathetic
to local control, has resulted in real local legal authority, notwithstanding the nominal rules of state
See, e.g., Greg Hise, Magnetic Los Angeles: Planning the Twentieth-Century Metropolis

130“31 (1997); Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in
Postwar Detroit 129“30 (1996).
See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416, 419“20 (1956).

Our discussion of the Tiebout-Hamilton framework relies primarily on Kirk Stark & Jonathan Zasloff,
Tiebout and Tax Revolts: Did Serrano Really Cause Proposition 13?, 50 UCLA L. Rev. 801, 811“13
Cities, Land Use, and the Global Commons 83

tax base. Bruce Hamilton, writing twenty years after Tiebout, termed this possibility
“musical suburbs” “ the poor chasing the rich in a “never-ending quest for a tax
base.” Hamilton™s insight was that cities would use land use controls to block the
free riders and increase their own ¬scal base.51 As William Fischel has bluntly noted,
“The family of eight that wants to rent part of a lot in Scarsdale and park two house
trailers on it and send their kids to Scarsdale™s ¬ne schools is apt to ¬nd a few
regulations in their way.”52
Localities interested in enhancing property values, however, often will attempt
to increase VMT. They will adopt large lot-size requirements and generally low
densities, making it extremely dif¬cult to support a public transportation system
¬nancially. They also will resist providing sites for affordable housing, because these
residents will be the classic “free riders” of the Tiebout-Hamilton system. But no
matter how property wealthy a city might be, it will still need its working class:
the police of¬cers, ¬re¬ghters, teachers, nurses, secretaries, janitors, and clerks who
provide critical services but are rarely highly compensated. And zoning them out
(and killing the density necessary for transit) means that they will have to drive to
their jobs, further increasing vehicle miles traveled and greenhouse gas emissions.
These structural problems are compounded by literally decades of local land use
practices and bureaucratic culture, combined with developer practices and business
models, which presume and foster high-VMT development. In order to retool, cities
must completely overhaul their zoning codes, general plans, road and street designs,
parking requirements, block-length speci¬cations, and virtually every aspect of what
they have done since the end of the Second World War.53 These changes also will
require developers to change alongside the cities, uprooting established business
models and thereby incurring large new design costs, a prospect likely to lead to
some resistance.
All of these patterns and incentives would lead the observer to anticipate that cities
in the United States would continue to promote land use policies that exacerbate
climate change. One would not expect cities to be on the front lines of tackling this


Despite the pressures just identi¬ed, an increasing number of municipalities
throughout the country appear to be confronting the specter of climate change. The

See Bruce W. Hamilton, Property Taxes and the Tiebout Hypothesis: Some Empirical Evidence, in

Fiscal Zoning and Land Use Controls 13, 15 (Edwin S. Mills & Wallace E. Oates eds., 1975); see
also Bruce W. Hamilton, Zoning and Property Taxation in a System of Local Governments, 12 Urb.
Stud. 205 (1975).
William A. Fischel, Property Taxation and the Tiebout Model: Evidence for the Bene¬t View from

Zoning and Voting, 30 J. Econ. Literature 171, 171 (1992).
A good demonstration of how postwar planning has undermined New Urbanism is found in Michael

Lewyn, New Urbanist Zoning for Dummies (George Washington University Legal Studies Research
Paper No. 183, 2006), available at http://ssrn.com/abstract=873903.
Katherine Trisolini and Jonathan Zasloff

2005 U.S. Mayors Climate Change Protection Agreement provides that signatories
agree on a common goal: to meet or beat Kyoto Protocol targets within their own
communities, that is, to reduce greenhouse gas emissions to 7% below 1990 lev-
els by 2012.54 As of March 12, 2009, 916 mayors have signed the Agreement.55 The
Sierra Club estimated that if the ¬rst 230 signatory cities succeed, their reductions
would equal those expected from the combined Kyoto commitments of the United
Kingdom, the Netherlands, and all Scandinavian countries.56 The city of Portland,
Oregon, already claims to have substantially reached its Kyoto-“mandated” levels.57
Salt Lake City, Utah, states that it has reduced emissions from its municipal opera-
tions by 31% since 2001, exceeding its target.58
Why are these cities embracing this initiative despite the pressures against them?
A clear answer is not available in the existing literature. Determining the best
explanation for the apparent urban leadership on climate change obviously awaits
more detailed empirical research on implementation of the Agreement “ and of
course the track record that such research would investigate.59 But any research
outcome promises to illuminate two scholarly disciplines generally not associated
with each other: urban theory and international relations theory. Considering the
role of cities in the politics of climate change suggests that bridging these two ¬elds
could enrich them both. It also may provide critical information to advocates seeking
to mitigate climate change.
The traditional Westphalian model of international law and international rela-
tions focuses exclusively on nation-states as international actors.60 A burgeoning

They also agree to urge their state governments and the federal government to do the same. See U.S.

Conference of Mayors, The U.S. Mayors Climate Protection Agreement (2005), available
at http://usmayors.org/climateprotection/documents/mcpAgreement.pdf.
Press Release, The U.S. Conference of Mayors, 600 Mayors in All 50 States and Puerto Rico Take

Action to Reduce Global Warming (July 13, 2007), available at http://usmayors.org/climateprotection/
Jennifer Hattam, Green Streets: Where Great Ideas Are Transforming Urban Life, Sierra Club Mag.,

July/Aug. 2006, at 36.
See A Progress Report on the City of Portland and Multnomah County Local

Action Plan on Global Warming 1 (June 2005), available at http://www.portlandonline.com/
shared/cfm/image.cfm?id=112118 (“Despite rapid population and economic growth, local greenhouse
gas emissions in 2004 were only slightly above 1990 levels, the benchmark year established in the
Kyoto Protocol.”) (emphasis added). We note that this ¬gure comprises all emissions from the area,
not simply those produced by governmental activities.
See Salt Lake City Green, Current and Completed Climate Change Initiatives, available at

http://www.slcgreen.com/CAP/current.htm (last visited March 16, 2009) (“Salt Lake City has reduced
carbon dioxide in its municipal operations energy use by 31% since 2001, surpassing our goal to meet
the Kyoto Protocol standard by 148%, seven years early.”)
One excellent project by Harriet Bulkeley and Michelle M. Betsill reviews the in¬‚uence of the

Local Governments for Sustainability™s (ICLEI) Cities for Climate Protection program on six cities,
including two in the United States assessing the success of this transnational network in in¬‚uencing
climate change policy. This gives us a good start on the empirical work necessary to understand
local governments™ actions. See Harriet Bulkeley & Michelle M. Betsill, Cities and Climate
Change: Urban Sustainability and Global Environmental Governance (2003). For further
discussion on this topic, see infra Sections 3.1, 3.4.
See Mark W. Janis, An Introduction to International Law 162“63 (4th ed. 2003) (“Sovereignty

was the crucial element in the peace treaties of Westphalia, the international agreements intended to
Cities, Land Use, and the Global Commons 85

literature recognizes, however, that other actors, such as nongovernmental organi-
zations, subnational governments, transgovernmental networks, and multinational
corporations profoundly affect the course of international law and politics;61 and
thus, the traditional Westphalian model is becoming obsolete. These new players
in world affairs include local governments. Yishai Blank, for example, argues that
“globalization is not only imposed on passive localities by their states or interna-
tional institutions “ it is also advanced from the ground up by localities themselves.
Localities are thus doing their part to further disaggregate the waning Westphalian
concepts of the unitary state.”62
Knowledge of how precisely local governments behave in such a highly com-
plex global politics, however, remains rudimentary. We suggest that one potentially
fruitful way to frame the issue lies in applying the insights of international relations
theory to municipal behavior on the global stage. Indeed, the very origin of inter-
national relations theory derives from Thucydides, who attempted to explain the
actions of city-states.63 More importantly, international relations theory represents a
useful series of frames of the behavior of governmental units competing for survival
without centralized, sovereign-created rules.64 As cities increasingly interject them-
selves into the international dialogue on climate change both as policymakers and
as litigants, they step out of the domestic realm in which they are governed by a set
of well-established legal rules. Moreover, in a competitive global economic envi-
ronment, cities, like nations, must be concerned for their survival. To be sure, the
“destruction” of a city may not be political but economic, but few can examine the
status of, say, Detroit, and claim that it has “survived” in anything but the most nom-
inal terms. While analogizing competition between cities to the anarchical global
order is far from perfect, the management of common pool resources such as the
Earth™s atmosphere lends itself well to international analogies.
We most emphatically do not argue that cities will behave in world politics in the
same way as nation-states, if for no other reason than cities are embedded within
a set of domestic laws far denser and more powerful than the anarchy of global
politics. Rather, we believe that enough similarities exist between the incentives for

end a great war and to promote a coming peace . . . [T]he key actor on the world™s stage was the sovereign
state to which all loyalty was due internally and which was unrestrained externally.”). If cities have an
independent role in global politics, this development clearly cuts against the Westphalian grain.
See, e.g., Earl H. Fry, The Expanding Role of State and Local Governments in U.S. Foreign

Affairs 23 (1998) (“While predictions concerning the rapid demise of the nation-state are premature,
an evolutionary process is certainly under way, in terms of both the distribution of governing authority
within the nation-state and the constant interaction among governments, international organizations,
and citizens groups.”); Hari M. Osofsky, Climate Change Litigation as Pluralist Legal Dialogue?, 26
Stan. Envtl. L.J. & 43A Stan. J. Int™l L. 181 (2007) (joint issue); Kal Raustiala, The Architecture of
International Cooperation: Transgovernmental Networks and the Future of International Law, 43 Va.
J. Int™l L. 1 (2002).
Yishai Blank, Localism in the New Global Legal Order, 47 Harv. Int™l L.J. 263, 268 (2006).

Laurie M. Johnson Bagby, The Use and Abuse of Thucydides in International Relations, 48 Int™l Org.

132 (Winter 1994).
To the extent that cities globally begin to make strong efforts toward combating climate change, the

international relations analogy becomes stronger, because no central enforcement mechanism exists
for relations between cities in different nations.
Katherine Trisolini and Jonathan Zasloff

cities and those for nation-states that international relations theory can provide a
framework that helps to generate useful research hypotheses for investigating the
motivations behind cities™ actions on climate change. Moreover, broader theories
can help clarify discrete data, detecting broader behavior patterns that might appear
at ¬rst to be driven by idiosyncratic or highly localized factors.
As will be explained in greater detail herein, the turn to international relations
theory also might help to explain an anomaly in urban theory, particularly the
regnant models that analyze cities™ motivation and function as attracting capital
or serving as neutral “markets” or “bankable” locations. In sum, then, connecting
two streams of scholarship both broadens and deepens our understanding of the
increasingly complex global political environment.

3.1 Urban Theory and Quasi-Realism: Cities as Markets
We should begin, then, with the most in¬‚uential model in modern international
relations theory, “Structural Realism,” and its less demanding counterpart that we
term “Quasi-Realism.”65 Structural Realism posits that policy outcomes are princi-
pally shaped by the international system. That system, Structural Realists contend,
is anarchical, and thus threatens the viability of all the states within that system. In
such a competitive environment, states measure their own success by their power
relative to other states in the system.66
Structural Realism parallels the most signi¬cant trends in urban theory, in partic-
ular the signi¬cant expansion of scholarship seeking to understand the role of cities
in the globalizing economy. Michael Porter™s work, which stressed that cities must
compete for scarce capital in order to survive economically,67 has been applied
worldwide. Porter™s work echoed an older model developed by Paul Peterson,68
which argued that the weakness of cities within a federalist framework requires
them to avoid redistributive politics and privilege business elites as a way to promote
economic development and secure their tax base. Cities must compete “with one
another so as to maximize their economic position.”69 To achieve this objective,
“the city must use the resources its land area provides by attracting as much capital
and as high a quality labor force as possible.”70

The standard work outlining such a theory is Kenneth N. Waltz, Theory of International

Politics (1979). Since Waltz™s study appeared, the literature commenting on and reacting to it has
been vast.
An excellent summary of Structural Realism™s implications for states™ foreign policies is found in

Fareed Zakaria, Is Realism Finished? (Method of Analyzing International Relations), 30 Nat™l Int. 21
(Winter 1992).
Michael Porter, The Competitive Advantage of the Inner City, 73 Harv. Bus. Rev. 55 (1995). In order to

advance this model, Porter established the Initiative for a Competitive Inner City, http://www.icic.org
(last visited Jan. 3, 2008). Porter™s framework derived from his earlier work, which focused on national
competitiveness. See Michael Porter, The Competitive Advantage of Nations (1990).
Paul E. Peterson, City Limits 12 (1981).


Cities, Land Use, and the Global Commons 87

Urban sociologists and geographers whose politics sharply differ from Porter™s
(and to a lesser extent, Peterson™s) have also gotten into the game. Saskia Sassen™s
in¬‚uential writings focus on a narrower band of urban centers, which she terms
“world cities.” Sassen ¬nds ¬erce competition among larger cities to attract the
“command-and-control functions of the global economy,” which we understand
to comprise the network of critical business services “ such as banking/¬nance,
accounting, advertising, and law “ that international capital relies upon to maintain
the health of the global capitalist system. Recent scholarship by Gerald Frug and
David Barron on “international local government law” discusses how international
law implicitly endorses a vision of the “private city.”71 This urban form, promoted by
the World Bank among others, emphasizes the city™s role as a market location that
can facilitate economic growth. Although not limited to a narrow range of command
centers, the normative focus of international law on cities as private markets again
emphasizes the economic function of cities and deemphasizes their governmental
Despite highly divergent disciplinary backgrounds and political outlooks, a pow-
erful theme underlies the cities-as-markets view: globalization and the mobility of
capital have sharply curtailed urban autonomy, forcing cities to compete for capital
and driving a convergence of urban politics around the attraction of business. If not
zero sum, this model certainly has little room for mutually bene¬cial cooperation
between cities.
Not surprisingly, other urban theorists take exception to “ or at least highly qualify “
this picture. H.V. Savitch and Paul Kantor contend that “cities need not be leaves
in the wind,” and argue forcefully that cities have varying bargaining positions
with national and international capital, thus allowing them wiggle room to develop
their own independent policies.73 (Nonetheless, they still acknowledge that the
relationship with capital is a critical factor in shaping modern cities.) In similar
fashion, Peter Newman and Andy Thornley ¬nd regional differences among North
America, Europe, and Paci¬c Asia, based largely on differences in national-local
relationships.74 Newman and Thornley also ¬nd that cities within a region often
adopt very different economic development strategies.
Cities, of course, do not function in an entirely zero-sum world, which is why
Structural Realism in international relations theory provides an imperfect analogy
for examining city behavior75 and why we reference its application to cities as

Gerald Frug & David Barron, International Local Government Law, 38 Urb. L. 57 (2006).

To be clear, Frug and Barron do not endorse the model; rather, they argue that international law

appears to do so. See id.
See generally H.V. Savitch & Paul Kantor, Cities in the International Marketplace: The

Political Economy of Urban Development in North America and Western Europe (2002).
See generally Peter Newman & Andy Thornley, Planning World Cities: Globalization and

Urban Politics (2005).
Another obvious difference is that cities do not anticipate military con¬‚ict with other cities. Their

primarily economic con¬‚ict with each other, however, contains large implications for their overall
health and well-being.
Katherine Trisolini and Jonathan Zasloff

“Quasi-Realism.” However, the analogy is not far off. As Porter, Peterson, Sassen, and
others have emphasized, however, cities do compete for vital goods like investment
capital, which does yield a zero-sum result. Moreover, there can only be so many
“centers” of critical command functions; once these functions are too spread out,
no city can serve as a center. Thus, we ¬nd the analogy useful for identifying a set of
presumptions in urban theory and for framing hypotheses about municipal action.
Despite the theoretical presumption that cities compete for capital, any seri-
ous municipal attack on climate change would, upon ¬rst impression, appear to
be adverse to business interests. While global economic command-and-control
functions might not necessarily require a particular urban land use and environ-
mental strategy, one would not expect cities to focus on environmental, energy,
and land use policies to prevent climate change as a means of attracting capital.
As for cities™ own competitive advantage, the business groups pursued as part of a
competitive-advantage strategy likely would be wary of a city whose policies were
focused on global warming.
Such local governments might advance regulations and policies that could sub-
stantially curtail capital™s ability to conduct business in the way that it wants. They
could restrict or penalize energy use, or require energy use from renewable sources,
increasing its cost. They could zone for high-density development, thereby curtail-
ing the construction of low-rise of¬ce parks popular in both the commercial and the
industrial sectors.76 They could insist on restrictions on employee automobile usage
or require and enforce parking cash-outs.77 They could attempt to set urban growth
boundaries and thus reduce business™ options for development and expansion. And
they could restrict free parking, thus forcing retail businesses to internalize the costs
of automobile dependence.78 Indeed, the very unpredictability of what regulatory
steps they might take could deter capital.
Scholars taking a Quasi-Realist view, then, would hardly be surprised if they
found that municipal rhetoric on climate change remains just that. They would
expect cities to be engaging in mere window dressing, signing memoranda that
sound impressive “ and enhancing the pro¬le of ambitious local politicians79 “
without really taking the dif¬cult steps required to actually reduce their emissions.
Inaction or limited action, then, would suggest that the pessimistic theories set forth
here actually do explain cities™ actions.
A 2003 review of municipal policies on climate change found some evidence
for this pessimistic Quasi-Realist position. Harriet Bulkeley and Michele M. Betsill

Many industries prefer sprawling development, as low-rise of¬ce parks are considered particularly

suitable for many commercial and industrial users. See Hise, supra note 49; Sugrue, supra note 49;
Peterson, supra note 67.
See Jennifer Dill, Mandatory Employer-Based Trip Reduction: What Happened?, 1618 Transp. Res.

Rec. 103“10 (1998).
See generally Donald Shoup, The High Cost of Free Parking (2005).

This certainly could explain the actions of some prominent mayors. See, e.g., Governor, L.A. Mayor

Doing Power-Inspired Duet, Daily Breeze (Torrance, Cal.), July 10, 2006, at A13 (“It™s no secret that
[Los Angeles Mayor Antonio] Villaraigosa thirsts to be Governor.”).
Cities, Land Use, and the Global Commons 89

assessed the climate change policies in six cities on three continents, including
two cities in the United States.80 They found that although some of these cities
did take proactive measures on in-house energy management, such as municipally
owned vehicle ¬‚eets and public property, they took few measures in the critical
areas of planning, transportation, and other land use controls such as building
codes.81 They found that the more serious attempts to promote climate change
policies usually derived from preexisting agendas; in other words, urban policymakers
pursued measures that reduced carbon emissions not for their own sake but for
other policy reasons or to foster their own images as pro-environmental politicians.82
(We have more to say about these reasons later.)83 Bulkeley and Betsill™s work
was published two years prior to the Mayor™s Agreement and was directed toward
international efforts to shape cities™ actions rather than domestic ones; nonetheless,
it does suggest the dif¬culty of implementing climate change mitigation policies
that impose costs and inconveniences on a city™s residents or businesses.
But what if cities actually mean it? Quasi-Realism would not be without expla-
nations. Cities competing for economic development resources might very publicly
¬ght climate change, casting doubt on the Environment Court™s thesis.
First, Sassen argues that in order to attract the command-and-control functions of
the international economy, cities must also attract the highly educated professionals
who provide critical services to global capital. These professionals might care a
great deal about living in a sustainable city.84 Moreover, at some point, cities might
pass a tipping point, where pollution, congestion, and livability get so bad that the
municipality is unable to attract capital investment.
Second, the mere fact that cities might be competing within the Tiebout equi-
librium hardly implies that they would compete in the same way. Many local
governments simply cannot hope to compete with the fast-growing outer suburbs
and exurbs: they lack the huge tracts of land necessary for sprawling development.85
No matter how much San Francisco tries, it cannot provide space for large of¬ce
parks with free employee parking. Thus, such cities will move toward more compact
development and New Urbanist form as a way of ¬nding a market niche.
Simply because Quasi-Realism could explain both mere rhetoric on climate
change and genuine municipal policy changes does not imply that it is incoherent;
rather, it shows that the framework raises a set of new research questions. If cities
prove to be only paying lip service to climate change politics, then this would seem to

See generally Bulkeley & Betsill, supra note 59. We should note, however, that Bulkeley and Betsill

do not identify themselves as realists.
Id. at 171“85.


See infra Section 3.4.

See Newman & Thornley, supra note 74, at 44 (“There is increasing awareness that the success of

the city also lies in maintaining . . . environmental sustainability.”). Newman and Thornley do not,
however, provide any direct evidence of this awareness or that it has been translated into policy.
See Matthew P. Drennan & Michael Manville, Lagging Behind: California™s Interior Metropolitan

Areas (May 31, 2006) (unpublished manuscript, on ¬le with authors).
Katherine Trisolini and Jonathan Zasloff

demonstrate the pessimistic version of Quasi-Realist theory. If, however, cities are
actually taking the kinds of serious, dif¬cult measures required to reduce overall
emissions, then establishing the validity of Quasi-Realism becomes more complex.
Researchers would have to determine whether the strategy of attracting key profes-
sionals actually represents a pattern of municipal policy across different governments:
can we point to any actual and continuing86 governmental action to promote eco-
nomic development through sustainability policies that would otherwise cut against
the interests of capital?87 If not, then it would be hard to represent it as a func-
tion of a global system since presumably many cities face the same incentives. But
if so, then such a pattern could provide important evidence for a more positive

3.2 Liberalism: All Politics Is Local
Broadly speaking, Liberal theories of international politics argue that the actions
of states are driven by domestic political conditions.88 These conditions can be
ideological (states behave according to cultural or religious traditions), material
(states behave according to the economic interests of powerful political actors), or
institutional (states behave according to the speci¬c mode of aggregating preferences
within them, such as democracy or dictatorship). Using the lens of Liberal theory,
we would consider how individuals or political groups use the climate change
issue for either idealistic or material purposes. Moreover, we would look to the
internal politics of the city, not its relative relationship to other cities, as the impetus
behind its regulatory stance on climate change. From this perspective, we must
consider that, as a distinct political milieu, large American cities are generally
left of center,89 and in the United States, the Bush administration™s refusal to take
climate change seriously intensely politicized the issue. For the domestic opposition,
the administration™s attitude symbolized an arrogant, parochial government hostile

We emphasize the continuing nature of such policies as a way to avoid confusing temporary fads “

which might be best described as constructivist, see infra Section 3.3 “ from genuine systemic incen-
There is some sketchy evidence that this may be happening. See, e.g., Terry Nichols Clark, The

City as an Entertainment Machine (2003), L.T. Ker, Towards a Tropical City of Excellence, in
City and the State: Singapore™s Built Environment Revisited (Ooi Giok Ling & Kenson Kwok
eds., 1997).
See Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int™l

Org. 513“53 (1997); Anne-Marie Slaughter Burley, International Law and International Relations
Theory: A Dual Agenda, 87 Am. J. Int™l L. 205, 228 (1993). Because a broad range of theoretical
approaches use this label, forests have been felled attempting to de¬ne “liberalism.” The way we use
it here has become accepted in international relations theory, despite the seemingly endless variety
of contexts and meanings that the word holds. We adopt it here to follow the international relations
literature, not as an assessment of any other use of the term.
See, e.g., Jill Lawrence, Democratic Gains in Suburbs Spell Trouble for GOP, USA Today, Nov.

26, 2006, at 6A (noting Democratic candidates won 60% of the vote in inner suburbs); Posting
of Ezra Klein, Places, Not States, http://ezraklein.typepad.com/blog/2007/03/places_not_stat.html
(Mar. 26, 2007) (“It™s long been understood that urban centers go Democratic. . . . ”).
Cities, Land Use, and the Global Commons 91

to scienti¬c data “ indeed, data of all kinds.90 It should hardly surprise observers
that mayors representing their democratic constituencies would take pleasure in
highlighting an opposing administration™s abdication of leadership. These kinds
of Democratic-leaning cities are also the most likely to have local environmental
activists who make campaign contributions and show up at the polls in low-turnout
municipal elections.
If, by analogy to Liberal theory, we presume that all politics is local, we would
expect Democratic-leaning cities to take stronger anti“climate change actions. But
this signals more than a reaction to the Bush administration. Environmentalism has
become a principal hallmark of the modern Democratic Party, so we would naturally
anticipate that cities dominated by Democrats would also have a distinctly green
cast. This is particularly true because land use policies to mitigate climate change
hardly signal a new direction in planning theory. They represent the “smart growth”
policies that progressive planners and New Urbanists have been advocating for nearly
two decades. Left-of-center Democrats were advocating “smart growth” and energy
conservation long before climate change appeared on the national political horizon,
and they will continue to do so even if the climate change problem miraculously
disappears tomorrow. Thus, Democratic-leaning cities will adopt climate change
policies not only because of the politicization of the climate debate nationally but
also because those policies conform to a preexisting political agenda.91
At the same time, the Agreement™s signatory list includes many traditionally con-
servative cities. This could indicate that alarm over climate change is crossing
partisan lines. Polling suggests that this, indeed, is happening. One poll found that
63% of Americans believe environmental hazards such as climate change present a
threat equivalent to that of terrorism,92 a supermajority that reveals strong bipartisan
preferences. Similarly, 70% of respondents to a January 2007 poll stated that global
warming is having a serious impact now.93 Sharper evidence is available from polling
data broken down along party lines. Although a higher percentage of Democrats per-
ceive a threat from climate change, a substantial majority of Republican primary
voters do as well; thus, a December 2006 poll of New Hampshire Republican primary
voters (whose viewpoints ¬gure to be highly conservative) found that 70% believe

For a discussion on this latter point, see the superb analysis in Joshua Micah Marshall, The Post-Modern

President, Wash. Monthly, Sept. 2003, at 22.
For example, much of Los Angeles mayor Antonio Villaraigosa™s announcement concerning his “cli-

mate change” policy actually concerned several items detached from the climate change agenda, such
as restoring the Los Angeles River, reducing pollution at the Port of Los Angeles, cleaning up the Santa
Monica Bay, and increasing open space. See Antonio R. Villaraigosa, L.A. Mayor, Remarks before
the Latino Congreso Conference (Sept. 8, 2006), available at http://www.earthday.net/news/Remarks-
See Memorandum from Global Strategy Group to Yale Center for Environmental Law & Policy (Mar.

7, 2007), available at http://research.yale.edu/envirocenter/uploads/epoll/YaleEnvironmentalPoll2007
Key¬ndings.pdf (visited Jan. 3, 2008).
See Press Release, CBS News Poll, The President, the State of the Union and the Troop Increase

(Jan. 22, 2007), available at http://www.cbsnews.com/htdocs/pdf/012207_bush_poll.pdf.
Katherine Trisolini and Jonathan Zasloff

climate change to be a “serious threat”94 and 75% think that the United States should
take action to reduce greenhouse gas emissions.95 Congressional Republicans, how-
ever, seem out of step with their constituents and with local elected Republican
of¬ceholders: Only 13% of GOP members of Congress believe “beyond a reasonable
doubt” that human activity is causing climate change, compared with 95% of their
Democratic counterparts.96
Such data suggests that preferences form differently depending upon the level
of government: Republican voters will back climate change skeptics at the national
level while supporting action against climate change at home. They may be more
willing to cross party lines for environmental causes when the stakes are local. This
in turn suggests unique aspects of local politics that will translate into unexpected
municipal behavior on climate change “ precisely the sort of outcome that would
be anticipated by Liberal theory. All politics may be local, as Tip O™Neill famously
stated, but at least with climate change, local politics may be becoming global.
The linkages between smart growth policies and the prevention of climate change
shows that predictions of Liberal theory also might derive from the material realm.
New Urbanism ful¬lls the needs of some social groups more than others, particularly
young professionals, empty nesters, and (to a lesser extent) families where all the
adults work. None of these household types needs the standard suburban form of
sprawling single-family homes with lawns.97 Liberal theory might suggest that the
degree to which a local government adheres to anti“climate change policies would
vary with these kinds of critical demographic factors. And this trend could have
a ratchet effect: Promoting compact development would attract more members of
these demographic groups, which could in turn strengthen political support for New
Urbanist form.98 The theory might also suggest an alternative explanation if we ¬nd
that older cities and inner-ring suburbs prefer compact development over sprawl;
local elites with ¬xed investments in these localities, Liberals will suggest, will serve
as the driving force behind local economic development policies in order to buttress
their own assets.
Thus, in the same way that Quasi-Realism frames a research agenda, Liberalism
does as well. It directs us to consider that the impetus for cities™ actions may not
lie in purely economic terms, but may rather stem from the ideological bent of
its inhabitants. (Of course, these may often extend beyond environmental issues to
other matters such as religion, etc.)

See The Mellman Group, Large Majorities Claim At Least Some Knowledge About Global

Warming (Dec. 2006), available at http://www.cleanair-coolplanet.org/information/nhpollresults.pdf.
See id.

See Congressional Insiders Poll, Nat™l J., Feb. 3, 2007, at 6 (asking the question, “Do you think it™s

been proven beyond a reasonable doubt that the Earth is warming because of man-made problems?”).
See Calthorpe, supra note 44.

Liberal skeptics would wind up on the same side as the Realists, although for different reasons: cities

will not respond, Liberals will argue, because of the Homevoter Hypothesis. There is an important
(and potentially unanswerable) question as to whether the operation of the Homevoter Hypothesis is
better described as a Liberal or Realist development. Moravcsik suggests that internal politics driven
by external system effects are Liberal. See Moravcsik, supra note 88, at 523.
Cities, Land Use, and the Global Commons 93

Most obviously, does any relevant difference exist between municipal climate
change policies based upon the strength of Democratic partisanship or other indi-
cators of left-leaning politics? If not, do we ¬nd evidence that environmental issues
generally or climate change policy particularly may in¬‚uence voters at the local
level to cross partisan lines in a manner that would not occur on national-level
votes? Similarly, can we point to differences based upon the demographic character-
istics mentioned here? If we ¬nd central cities and inner-ring suburbs pushing more
compact development, can we point to particular elites driving such a decision, with
variations in local elites affecting the degree of New Urbanism adopted?

3.3 Constructivism: International Discourse
Constructivist international relations theory suggests that, by producing a set of dis-
cursive practices that shape knowledge and ideas, international interaction creates
the international system itself.99 Thus, constructivist theory focuses on dialogue
between actors as the primary source of their relationship. For constructivists, lan-
guage creates the international system by constructing parties™ self-de¬nitions. The
most extreme position sees it as a matter of discourse creating states, not states engag-
ing in discourse. A more moderate position holds that notions of national interest
are altered fundamentally through the interactions of states and other actors in world
Margaret Keck and Kathryn Sikkink™s in¬‚uential account of “transnational advo-
cacy networks” (TANs), which they de¬ne as “networks of activists distinguishable
largely by the centrality of principled ideas or values in motivating their formation,”101
serves as a recent outstanding example of the constructivist turn. The overall point
is that strong forces outside a polity in¬‚uence its politics on principled grounds.102

It is worthwhile to distinguish between “hard” and “soft” constructivism. See Richard H. Steinberg

& Jonathan M. Zasloff, Power and International Law, 100 Am. J. Int™l L. 64, 82“85 (2006) (making
this distinction). Hard constructivists argue that the most basic building blocks of the international
order are social constructs. See, e.g., Friedrich V. Kratochwil, Rules, Norms, and Decisions:
On the Conditions of Practical and Legal Reasoning in International Relations and
Domestic Affairs (1989). Soft constructivists explain the international social processes that affect
the international system.
The more extreme position is sometimes associated with the work of Friedrich Kratochwil. See

Kratochwil, supra note 99. The more moderate approach is taken by Alexander Wendt. See
Alexander Wendt, Social Theory of International Politics (1999); Alexander Wendt, The
Agent-Structure Problem in International Relations Theory, 41 Int™l Org. 335 (1987).
101 Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in
International Politics (1998).
Anne-Marie Slaughter has also suggested that these international networks run between governmental

of¬cials as well as among activists. See Anne-Marie Slaughter, The Real New World Order, Foreign
Aff., Sept./Oct. 1997, at 183. It is not clear whether this represents a Constructivist turn or an
Institutionalist one. Slaughter herself describes her work as Liberal because she sees the individual
rather than the state as the repository of preferences.
Although Bulkeley and Betsill also highlight the function of transnational networks in their dis-
cussion, they focus almost exclusively on transnational networks of government of¬cials as opposed
to nongovernmental advocacy networks. See Bulkeley & Betsill, supra note 58, at 186“93. This is
largely because their study concerns the ICLEI CCP program, which by de¬nition is restricted to
Katherine Trisolini and Jonathan Zasloff

The intense national and international focus on climate change suggests that
viewing cities™ actions as primarily a reaction to local pressure (as Liberalism would
posit) may be missing the forest for the trees. The Mayors™ Agreement itself was
launched at the U.S. Conference of Mayors,103 and when Los Angeles Mayor Antonio
Villaraigosa declared his adherence to the Mayors™ Agreement, he did so not at City
Hall but at an international conference at the University of California, Los Angeles
(UCLA). On the dais, he was accompanied not by members of the City Council,
but rather by Bill Clinton, Tony Blair, San Francisco Mayor Gavin Newsom, and
London Mayor Ken Livingstone.104
Thus, the politics of local climate change may be driven by powerful advocacy
networks whose origins lie far from the cities in which they operate. Within this
framework, national and international environmental organizations raise the issue™s
salience, propose speci¬c actions, and command press attention, making it useful “
and at times necessary “ for local politicians to embrace the initiative. Indeed,
they may shape politicians™ own values. TANs may provide ¬nancial, informational,
and political support to local organizational chapters and new cadres of activists
energized by the climate change issue. Thus, they not only create connections
between cities on this policy issue but also help policymakers and their constituents
believe that climate change requires a signi¬cant policy response from all levels of
The growth of local climate change policy advocacy even could suggest that Keck
and Sikkink™s framework has more power than they gave it credit for. Keck and
Sikkink hypothesize that TANs are most effective in dealing with “issues involving
bodily harm to vulnerable individuals, and legal equality of opportunity.”106 Neither
category includes climate change.107 Moreover, Keck and Sikkink argue that TANs
achieve prominence because they target repressive governments (such as human
rights abusers) where domestic political opposition is practically close to impossible.
Here, however, we might see the in¬‚uence of powerful TANs even in open and

government of¬cials. But this focus, in our view, means that their discussion of transnational networks
¬ts more precisely into an Institutionalist framework, because it concerns the use of international insti-
tutions to facilitate cooperation between governments (in this case, local governments). We recognize
that the borders of the international relations theory paradigms blur in this case, because it is not clear
whether the institution is reducing the transactions costs of cooperative behavior (the Institutionalist
account) or changing the discourse and thereby altering governments™ perceptions of their self-interest
(the Constructivist account). In international legal scholarship, such hybrid theories are becoming
more common as empirical work becomes more detailed. See Steinberg & Zasloff, supra note 99, at
See Of¬ce of the Mayor, Seattle, Wash., What Is the U.S. Mayors™ Climate Protection Agreement?,

http://www.seattle.gov/mayor/climate (last visited Jan. 3, 2008).
See Carla Marinucci, In L.A. Speech, Blair Talks Tough in Defense of Israel, S.F. Chron., Aug. 2,

2006, at A10.
For further discussion of this approach, see generally Osofsky, supra note 61.

Id. at 204.

Catastrophic climate change could, of course, cause severe bodily harm, but Keck and Sikkink

emphasize that it involves speci¬cally vulnerable groups (e.g., women subjected to circumcision) or
the grotesque human rights abuses of the Pinochet government.
Cities, Land Use, and the Global Commons 95

tolerant U.S. cities. Such developments could point to a wider and more powerful
role for TANs in the emerging global order.

3.4 Institutionalism: Evolving Cooperation
Institutionalists accept the rationalist framework offered by Structural Realists, but
suggest that transgovernmental institutions can transcend the Prisoner™s Dilemma
by providing a framework for cooperation. The Prisoner™s Dilemma is a two-player
game structured so that even though cooperation between the two parties would
yield overall bene¬ts for both, each player™s “dominant strategy” (i.e., the course that
it will take regardless of the other player™s moves) is to “defect,” or take uncooperative
action. As Douglas G. Baird and his colleagues note, the Prisoner™s Dilemma “is
emblematic of some collective action problems in the law in which individual self-
interest leads to actions that are not in the interest of the group as a whole.108 Many
international problems can be conceptualized as Prisoner™s Dilemmas: Nations have
powerful temptations to break arms control agreements, for example, for fear that
the other party is doing the same.109
By considering a series of crosscutting yet related matters, international institu-
tions effectively make nations “repeat players” in these areas. This, in turn, allows for
the repetition, or “iteration” of the Prisoner™s Dilemma, which as Robert Axelrod has
shown, can facilitate cooperative outcomes.110 In addition, international institutions
reduce information and transactions costs by generating otherwise-costly monitor-
ing information, thereby reducing uncertainty about compliance and assisting the
production of international stability.111 Finally, institutions reduce the usually high
transaction costs of achieving international agreements and cooperation.112
By way of analogy with institutionalism, we would look for the formation of
transmunicipal institutions, which could generate information about compliance
with the Mayor™s Climate Change Protection Agreement as well as reducing the
transactions costs of multilateral action. The Agreement itself might represent cities™
attempts to create such institutions. Organizations such as the International Council
on Local Environmental Initiatives (ICLEI), the Clinton Foundation™s Climate
Change Initiative, and the Large Cities Climate Change Leadership Group claim

108 Douglas G. Baird, Robert H. Gertner & Randal C. Picker, Game Theory and the Law 312“13
An excellent summary of the Prisoner™s Dilemma game with implications can be found at Pris-

oner™s Dilemma, in Stanford Encyclopedia of Philosophy (Aug. 11, 2003), available at http://
See Robert Axelrod, The Evolution of Cooperation (1984).

Two leading accounts of Institutionalist theory are Robert O. Keohane, After Hegemony: Coop-

eration and Discord in the World Political Economy (1984); Robert O. Keohane, Neoliberal
Institutionalism: A Perspective on World Politics, in International Institutions and State Power:
Essays in International Relations Theory (1988).
Theoretically, TANs could be providing the same sorts of services for local governments, providing

an intriguing possible link between constructivist and Institutionalist theory.
Katherine Trisolini and Jonathan Zasloff

to be operating in a similar fashion, creating international institutions to facilitate
Institutional existence, of course, hardly guarantees effectiveness. Bulkeley and
Betsill™s study questions ICLEI™s ability to signi¬cantly promote robust municipal
climate change policies. The United Nations™ Environment Programme provides
little assistance to local governments and is itself a weak link in an overmatched
U.N. framework.114 The Clinton Foundation states that it is developing a worldwide
purchasing cooperative to lower the prices of energy-saving products and to catalyze
the development and deployment of low-energy and low-greenhouse-gas-producing
products and services.115 Such plans, however, while valuable in garnering cooper-
ation to surmount ¬scal barriers to ef¬ciency improvements, may not provide an
iterative or monitoring process for overcoming the competitive pressures that drive
unsustainable land use practices.
But this might not be the end of the story. As suggested earlier, one major obstacle
preventing New Urbanist land use is not political but inertial.116 Sprawling devel-
opment occurs because of encrusted layers of obsolete zoning and planning codes,
which in turn create business models designed for traditional suburban growth,
which in turn leads developers to propose and advocate for these models. And while
New Urbanist designers have crafted codes in response to suburbia, these documents
have nowhere near the speci¬city and applicability for cities to deploy them, espe-
cially since cities are generally not working with empty land, but rather with suburbs
needing retro¬tting. Hiring the extra staff and costly consultants necessary to achieve
low-VMT land use may be well beyond the range of most cities. To the extent that
institutions such as the Mayors™ Conference, ICLEI, the Clinton Foundation, and
others can provide such services at lower cost to urban areas, they would represent
the kind of transaction-cost-reducing bodies envisioned by institutionalist theory.
Institutionalist theory, then, suggests a potentially fruitful research agenda in inves-
tigating these groups and others like them.117 Most importantly, to what extent has
institutional involvement allowed individual cities to accelerate the pace and depth
of their initiatives to address climate change? Can we detect the use of institutional
information in augmenting monitoring capabilities? Can we point to any actual

See President Clinton Launches Large Cities Climate Initiative, Env™t News Service, Aug. 2, 2006,

available at http://www.ens-newswire.com/ens/aug2006/2006“08-02“05.asp (last visited Jan. 3, 2008).
See Philip Shabecoff, A New Name for Peace: International Environmentalism, Sustainable

Development, and Democracy 49“50 (1996).
See William J. Clinton Foundation, Clinton Climate Initiative, available at http://www.

clintonfoundation.org/cf-pgm-cci-home.htm (last visited Jan. 3, 2008).
More precisely, one might say that the problem derives not from inertia but rather from ¬xed costs.

Its applicability suffers because of the relative dearth of enforcement measures that cities have against

other cities. Institutional monitoring is useful because it allows states to retaliate against each other
if they do not comply. But whereas states can retaliate against each other in several ways, usually
through trade and other economic barriers, cities have far fewer levers. Nevertheless, cities have some
weapons available to them “ most notably tax incentives, planning and zoning codes, and tit-for-tat
strategies “ which could provide at least some basis for reciprocity.
Cities, Land Use, and the Global Commons 97

reduction in transactions costs by the provision of these institutional services? And
can we determine whether institutional involvement has led to outcomes that would
not have otherwise occurred?
Our own suspicion is that all of the theories will turn out to explain different aspects
of municipal behavior. After all, in the context of international relations, “[n]one
of the metatheories of the last century ha[s] been able to deliver the knockout
blow that some may have once thought possible. No one trying to understand
international relations can ignore power, or law, or the state, or civil society, or
norms, or language.”118 Now, “midlevel analysis of international legal and political
developments using hybrid theories”119 is the best course. Creating and applying
these hybrids represents the challenge for those seeking to understand the local
politics of climate change. And the better the understanding, the more effective can
be advocacy strategies designed to in¬‚uence policy.


As cities increasingly become international players, particularly on climate change,
the development of a theory modeling the local politics of climate change could be of
great value to both the scholarly and policymaking community. Understanding what
cities do and why they do it is imperative. Whether or not the United States enacts
comprehensive (or even piecemeal) climate change regulation, local governments
will control the land use process for the foreseeable future, and thus they will play
a central role in the mitigation of or adaptation to global warming “ or the failure
of such efforts. Practically, the better the understanding of local politics, the more
effective can be advocacy strategies designed to in¬‚uence land use policies. And even
if state and federal policy eventually manages to somehow regulate land use for the
purpose of mitigating climate change, these policies will have to be implemented
at the local level. Will local governments be able to respond constructively? Or is
“sustainable development” at the urban level only an oxymoron in the face of ¬erce
international competitive pressures? We still do not know, but we should ¬nd out.
What does seem clear is that the pace of international climate change litigation
will surely quicken as impacts become increasingly apparent. Cities will ¬nd it
advantageous for a host of reasons to serve as climate change plaintiffs. Even if some
cities are hypocritical about climate change, hypocrisy is the tribute that vice pays
to virtue, and in the case of lending a few city attorneys to the effort, it is not a
very big tribute at all. The seconding of attorneys to international climate change
litigation, however, will mean a great deal to the cash-strapped NGOs that now
must devote a major portion of their resources to the effort. To the extent that
city leaders gain domestic support for climate change reduction efforts, serving as
a plaintiff certainly will promise political bene¬ts. Plaintiff cities such as Oakland,

Steinberg and Zasloff, supra note 99, at 86.

Katherine Trisolini and Jonathan Zasloff

California, and Boulder, Colorado, have already been lionized by transnational
advocacy networks,120 which ¬gure to pressure others to join in. And as attorneys
from different jurisdictions develop connections representing co-plaintiffs in climate
change litigation, they could provide ballast and organizational heft for the growth
of cooperative institutions that further environmental goals.121 Moreover, from a
risk perspective, cities ignore climate change at their peril; cities and other local
governments are beginning to ¬nd themselves defending against climate change
actions as well.122 Thus, recalcitrant jurisdictions may ¬nd it costly to miss jumping
on this policy bandwagon.
Perhaps the Environment Court was right, and perhaps cities rush headlong into
disaster. But enough evidence exists, both inside and outside the climate change
arena, to suggest that the Environment Court may have seriously overstated the
matter. If local and regional policy continues to play a central role in efforts to
forestall and adapt to climate change, neglecting it would represent a failure not
only of scholarship but of the world community™s effort to contend with the greatest
environmental threat that humanity has ever faced.

See Press Release, Friends of the Earth, City of Oakland, Calif., Joins Global Warming Law-

suit in Unanimous City Council Vote (Dec. 18, 2002), available at http://www.foe.org/new/releases/
1202oakland.html (“We congratulate the cities of Oakland and Boulder for their leadership in hold-
ing the Bush administration accountable for failing to take action on global warming” (quoting
Gary Cook, Coordinator of Greenpeace™s Global Warming Campaign)). The statements refer to the
lawsuits challenging the Overseas Private Investment Corporation™s and the Export-Import Bank™s
investment decisions on National Environmental Policy Act grounds. On March 30, 2007, the federal
district court in San Francisco partially denied defendants™ motions for summary judgment, allowing
the case to proceed. See Order Denying Plaintiffs™ Motion for Summary Judgment and Granting in
Part and Denying in Part Defendant™s Motions for Summary Judgment, Friends of the Earth, Inc. v.
Mosbacher, No. C 02“04106 JSW (N.D. Cal. Mar. 30, 2007). It is not known as of this writing precisely
how this litigation will be affected by the Supreme Court™s decision in Massachusetts v. EPA, 549 U.S.
497 (2007).
We derive this idea from the work of Anne-Marie Slaughter, who has argued that the state is “disaggre-

gating” into its component functions, thereby unbundling into its separate, functionally distinct parts.
These courts, regulatory agencies, executives, and legislatures, says Slaughter, are then networking
with their counterparts abroad, creating a new, transgovernmental order. See generally Anne-Marie
Slaughter, A New World Order (2004).
See, e.g., Ctr. for Biological Diversity v. City of Banning, No. RIC 46097 (Cal. Super. Ct. Nov. 21,

2006) (challenging Banning™s approval of a large housing development because it failed to disclose,
analyze, or mitigate greenhouse gas emissions from the project); Ctr. for Biological Diversity v. City
of Desert Hot Springs, No. RIC 464585 (Cal. Super. Ct. Jan. 24, 2007) (similar issues). The California
attorney general™s suit against the County of San Bernardino, discussed supra note 13, presents another
example of this phenomenon.


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