Nagle, John Copeland, Notre Dame Law Review
We are accustomed to thinking that Congress legislates equally throughout the country. (1) Assaulting a federal officer is illegal whether the attack occurs in Virginia or in Colorado. (2) The Endangered Species Act (ESA) (3) applies equally to the Alabama red-bellied turtle, the Indiana bat, and the California condor. (4) Title VII of the Civil Rights Act prohibits the discriminatory refusal to hire an African-American in Illinois and a Chinese-American in Nevada. (5)
The exceptions tend to prove the rule. The Cornhusker kickback was so controversial because it would have extended additional Medicaid benefits only to those living in Nebraska. The Voting Rights Act's preclearance provisions are subject to continuing opposition because they impose more stringent regulations on some states than others. Congressional earmarks fell out of favor because they funded projects in some places rather than others for reasons unrelated to the value of the project.
But site-specific laws are much more common, less controversial, and more justified than our intuition suggests. The First Congress legislated for a number of specific places, and such legislation has become much more common since then. Statutes that target specific places are a common, if not inevitable, feature of federal lands management and the construction and operation of federal facilities.
This Essay identifies the instances in which site-specific legislation is appropriate. It recounts the uses of such legislation, the theoretical debate surrounding it, and the circumstances in which it is desirable. I conclude that site-specific legislation plays an important role in enabling Congress to prescribe its preferred policy even when agreement on broader legislation remains elusive.
I. TYPES OF SITE-SPECIFIC LAWS
Congress has been legislating about specific places since August 10, 1790, when it passed "An Act authorizing the Secretary of the Treasury to finish the Lighthouse on Portland Head, in the District of Maine." (6) Site-specific legislation enacted since then takes a variety of forms. Congress may:
Name, build, or fund something at a particular place--Congress frequently specifies the name that it wants affixed to a courthouse, post office, highway, or other facility. (7) Congress also enacts legislation directing the construction of a lighthouse, courthouse, post office, road, bridge, hospital, or other project at a certain place. Most of these statutes are uncontroversial, though there are also many instances of roads and bridges that generated intense debate. Some of the earlier battles in Congress involved the proposed construction of canals, roads, and other "internal improvements" at the beginning of the nineteenth century. More recently, the construction of a nuclear waste disposal facility at Yucca Mountain northwest of Las Vegas has produced conflicting legislation and proposed bills over the course of several decades. (8) Water projects are another source of repeated congressional legislation and public debate. (9) Finally, many provisions in appropriations statutes direct the expenditure of federal funds at a particular place. (10) While such provisions have a long heritage, in recent years they have been attacked as improper earmarks.
Federal land management--Numerous federal statutes dictate special rules for the acquisition, disposition, or management of particular pieces of federally owned lands. For example, while Congress has enacted the Organic Act and the Wilderness Act to govern the management of national parks and wilderness areas respectively, Congress retains the sole authority to make the threshold determination of which federal lands qualify as national parks and wilderness areas. Congress employed that authority to establish the Pinnacles National Park in 2013 and to establish multiple new wilderness areas in 2009. (11) Or Congress may create a new form of federal land management to accommodate the unique needs of a particular place, as it did with respect to the Valles Caldera in northern New Mexico and the Presidio in San Francisco. …