Local Regulation of Natural Resources: Efficiency, Effectiveness, and Fairness of Wetlands Permitting in Massachusetts

Article excerpt

I. INTRODUCTION

In the last third of the twentieth century, governance of the environment, both natural resources and pollution aspects, has become a central public concern. Despite the popular tendency to blur these two sets of problems under the encompassing rubric of "environment," they raise distinctly different issues of design and critique in respect to appropriate legal management tools. The most comprehensive critiques of environmental agencies and laws have been directed at the pollution-focused Environmental Protection Agency, along with the Clean Air Act(1) and similar statutes.(2) However, the issues raised by the second branch of environmental law, that affecting natural resources, are quite different, and the questions that must be asked address different potential failures. The history of land and water governance is closely tied to land use law and property rights, and political theories of federalism and localism are traditionally important in this area, as is the competition between citizens with different interests. Ecology, not technology, is the dominant science, with the implication that technology-focused command and control regulation is essentially irrelevant to natural resource governance.

Although this Article attempts to answer questions about institutional design, it is important to stay focused on the substantive goals we are trying to achieve in governance of sensitive lands.(3) Law, policy, and institutional design must all strive for effective conservation of biodiversity, effective preservation of open space, and equity where circumstances require trading off private or public interests. It is a basic tenet of the democratic process to preserve minority interests, serve equity best, and preserve political legitimacy and legality.(4) The rise of the Wise Use and County movements attest to the cost of ignoring this principle.(5) Barton Thompson has suggested that, while the Wise Use movement is funded and directed by industry, failures to address rural citizens' real concerns about land and water management have created a responsive public to support the movement.(6)

Massachusetts has designed a system of wetlands regulation which appears to have achieved a measure of conservation while respecting core democratic principles. The key is the balance of statewide supervision with local implementation. The centerpiece of the system is the conservation commission, an appointed, unpaid board of five to seven citizens who are responsible for local natural resource policy and for permitting activities in the town's wetlands.(7) The local communities, the 341 cities and towns of the Commonwealth, review applications for permission to alter jurisdictional wetlands, collect data, communicate law and policy to their communities, plan open space in their jurisdiction, enforce wetlands law violations both criminally and civilly, and pass local ordinances to further regulate wetlands.(8) The state legislature sets the basic governing laws, notably, the Conservation Commissions Act(9) and the Wetlands Protection Act.(10) The state environmental agency hears administrative appeals of local permit decisions, issues regulations, and provides policy, technical expertise, planning for regional issues, and educational materials to the localities.(11)

Local governance of resources, like Massachusetts's, presents a conundrum: in its traditional American form, of which zoning is the quintessence, localism is heavily criticized for protecting local interests to the disadvantage of larger public interests.(12) On the other hand, our political culture gives great value to the town meeting form of participative democracy that still persists in New England. Both the Environmental Justice movement and the Wise Use movement, anticipating very different outcomes, favor laws that give local communities greater self-determination.(13) The larger sphere of the global environmental movement also extols the virtues of local control of natural resources. …