New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations

New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations

State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Professor Ostrom’s research on geographically situated, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article proposes that non-place based municipal collaborations, the theoretical framework of which is not explored in the literature, allow a reconceptualization of existing local government authority. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.

The objective of the article is not to suggest one local government strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.

Harvard Environmental Law Review

2011

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