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FederalPublished ArticleDevelopment Standards, Natural Resource ProtectionEPA Region- All FederalA Glimpse of the Past- A Vision for the Future: Senator Henry M. Jackson and National Land Use Legislation

SummaryDaly begins this article by discussing Senator Jackson and his efforts to increase awareness of the need to better manage the nation’s land. However, his efforts were defeated when the House of Representatives refused to approve certain land use legislation that had been overwhelmingly supported by the senate. Senator Jackson had the general belief that the best things for land use reform is the cooperation by federal, state and local governments, to act in a mutually beneficial way concerning land use legislation.

Published Article

A GLIMPSE OF THE PAST -A VISION FOR THE FUTURE:

Senator Henry M. Jackson and National Land Use Legislation

byJayne E. Daly

Introduction

For four years, from 1970 until 1974, Senator Henry M. Jackson challenged the Congress

and people of the United States to come to terms with the urgent need to better manage this nation's

greatest resource - its land. During that time, he proposed three major pieces of federal legislation,

in an attempt to create a framework for national land use planning. For Jackson and many others,

intelligent land use planning was the central principal around which many competing interests could

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be accommodated, including economic development, environmental preservation and social

equity.1

Jackson's proposals met with significant support from many and varied constituencies. In

1972, and again in 1973, the Senate debated and passed national land use legislation; both times

with impressive majorities. Yet, despite the Senate's overwhelming support for the bill, the House

of Representatives failed to approve the measure.

To date, there have been no further significant attempts, at the federal level, to enact

national land use legislation, yet the discussion regarding the need for such a policy continues.

1    ? Senator Jackson, during the introduction of the National Land Use Planning Act, S. 3354, to the Senate, stated his belief that "[i]ntelligent land use planning and management provides the single most important institutional device for preserving and enhancing the environment, for ecologically sound development and for maintaining conditions capable of supporting a quality life and providing the material means necessary to improve the national standard of living." 116 Cong. Rec. 1757-789 (1970) (hereinafter CR). See Morris K. Udall, Land Use: Why We Need Federal Legislation, in No Land Is An Island at 74 (Institute for Contemporary Studies, 1975). "If we are going to avoid the continued waste and exploitation of our resources and the high economic and social costs resulting from existing land use patterns in this country, we are going to have to develop a more rational and comprehensive approach to land use planning." Id. President Nixon, in his August, 1970 message forwarding a Council on Environmental Quality report to the Congress, agreed with Senator Jackson's focus on land use planning and wrote "I believe that the problems of urbanization, ... of resource management and of land and water use generally can only be met by comprehensive approaches which take into account the widest range of social, economic and ecological concerns. I believe we must work toward a National Land Use Policy to be carried out by an effective partnership of Federal State and local governments together." S. Rep. No.1435, 91st Cong., 2d Sess. 31, 32 (1970). See also Policy Position of the National Governors Conference, infra, note 35, in Committee on Interior and Insular Affairs, Background Papers on Past and Pending Legislation and the Roles of the Executive Branch, Congress and the States In Land Use Policy and Planning, 92d Congress, 2d Sess. ( U.S. Gov't Printing Office, 1972) at 28-29 (hereinafter Background Papers I).

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Since the early 1970s, several states have enacted statewide land use planning statutes and others

are considering similar measures. In fact, there seems to be little debate regarding the need to better

manage the land and its resources. The question was, and remains, how.

Senator Jackson had a vision for the future but what he saw was not an idealized end state; it

was a process. He envisioned a national land use system where various levels of government -

federal, state and local - acted in a mutually beneficial and coordinated manner, to create land use

patterns that foster development, where desired, and conservation, where appropriate. The federal

government would enable the states to develop these land patterns by providing financial and

technical assistance.

In the early 1970s, the United States failed to seize Senator Jackson's vision for

comprehensive land use planning. The past twenty years have proven the folly of that decision.

Instead, today, this nation is faced with a series of single subject environmental regulations that are

cumulative, economically prohibitive, at times contradictory and worst of all, ineffective at

preserving the environment. Business and industry suffer from the expense of these inefficient and

often ineffective environmental regulations.2 The legal system further discourages development

and raises costs. In the last twenty years, sprawling development patterns have continued unabated,

further depleting open space and degrading the quality of the earth's natural resources.

Additionally, the persistence of social concerns such as environmental justice, lack of affordable

housing and urban blight are indicators that, despite many valiant efforts and programs, any attempt

to deal with these issues in an isolated fashion is futile, for they are inextricably connected with the

overall development of the land.

2    ? John A. Cushman, Proposed Changes Simplify Rules on Pollution Control, New York Times, March 17, 1995, at 20.

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Land use planning is a tool that can be used to effectively promote social, environmental

and economic goals. It is well recognized today that this country's diversity prohibits the creation

of a uniform, federally mandated approach to land use planning. What is needed, instead, is a

framework for decisionmaking, much like the one proposed by Senator Jackson, twenty five years

ago.

91st Congress - Senate Bill S. 3354

Background

On January 29, 1970, Senator Henry M. Jackson introduced S. 3354, the National Land Use

Policy Act of 1970, in the Senate.3 Earlier that month, another seminal piece of legislation, the

National Environmental Policy Act (NEPA),4 had been signed into law by President Nixon.

Senator Jackson saw the land use planning bill as the logical next step in a national effort to provide

a "quality environment for present and future generations of Americans."5

Provisions

The National Land Use Policy Act (LUPA), was originally proposed as an amendment to

3    ? CR, supra note 1, at 1757. After introducing the bill, Senator Jackson was joined by Senators Church, Cranston, Curtis, Gravel, Harris, Hart, Hartke, Mansfield, McGovern, Metcalf, Moss, Nelson, Packwood, Ribicoff, Stevens, Williams of New Jersey, Yarborough, and Young of Ohio as co-sponsors. S. Rep. No. 1435, 91st Cong., 2d Sess. (1970) at 23 (hereinafter Senate Report 3354). Over 120 land use related bills were introduced in the 91st Congress. Committee on Interior and Insular Affairs, National Land Use Policy Legislation - 93rd Congress: An Analysis of Legislative Proposals and State Laws (U.S. Gov't Printing Office,1973) at 3. 4    ? 42 U.S.C.A. § 4321 to 4370(d) (West, 1993).5    ? CR, supra note 1, at 1757.

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the Water Resources Planning Act of 1965,6 to be administered by the Land and Water Resource

Council, an expansion of the existing Water Resource Council.7 It was believed that, as the Water

Resource Council had existing responsibility for other programs concerning land resources, its

expertise, established communications network and staff organization made it the logical choice to

coordinate the new land use program.8

The purpose of S. 3354, was to

establish a national policy to encourage and assist the several states to more effectively exercise their constitutional responsibilities for the planning, management, and administration of the Nation's land resources through the development and implementation of comprehensive "Statewide Environmental, Recreational and Industrial Land Use Plans," (hereinafter referred to as Statewide Land Use Plans) and management programs designed to achieve an ecologically and environmentally sound use of the Nation's land resources.9

To achieve this purpose, the bill established a grant-in-aid program, providing funding to the states

to develop statewide land use plans.10 Federal funding was contingent, however, on state plans

meeting the federal guidelines established by the legislation.11

6    ? 79 Stat. 244. Note that as amended, the Water Resource Planning Act would be known as the Land and Water Resource Planning Act. Title IV of that Act was referred to as the National Land Use Policy.7    ? S. 3354, 91st Congress, 2d Sess., (hereinafter Senate Bill 3354) at §402(d). "The Land and Water Resources Council shall be composed of the Vice President; the Secretaries of Agriculture; Commerce; Health, Education and Welfare; Housing and Urban Development; the Interior; Transportation; and the Army; the Chairmen of the Council on Environmental Quality and the Federal Power Commission; and the Administrator of the Environmental Protection Agency." Senate Report 3354, supra note 3, at 1.8    ? CR, supra note 1, at 1760.9    ? Senate Bill 3354, supra note 7, §402(a).10    ? Id. at §402(b).11    ? Id. at §402(c).

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Federal planning grants were to be utilized to

(i) prepare an inventory of the state's land and related resources;12

(ii) collect and analyze information relating to population characteristics, economic

trends, urban and rural growth patterns, capital improvement programs, significant land related

information (ecological, environmental, geological) that impacted upon the location of new

communities or public facilities, projected land use requirements for the next fifty years and any

other information needed to create a statewide plan;13

(iii) provide technical assistance and training programs in comprehensive planning;14 and

(iv) to establish arrangements for the exchange of information among all levels of

government within the state and with the federal government.15

In creating its land use plan, the state must first designate those areas within the state

subject to the plan, as well as those areas specifically exempted.16 Next, the state must designate,

from those areas covered by the plan, the land most appropriate for conservation, as well as areas

where development should be encouraged.17 Under S. 3354, the state was to assume management

12    ? Id. at §402(b)(1).13    ? Id. at §403(b)(2)(A) through (H).14    ? Id. at §403(b)(3).15    ? Id. at §403(b)(4), (5), and (6).16    ? Senate Bill 3354, supra note 7, §406(b)(1) and (2). Lands located within the boundaries of any incorporated city that exercised land use controls and any other land that the Land and Water Resource Council should designate, are specifically exempted from inclusion in the land use plan. Id. at (b)(2)(A) and (B).17    ? Id. at §406(b)(3) provides that the plans must identify those areas of the state

(A) where ecological, environmental, geological and

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over any lands that, in its discretion, were of regional, statewide or national significance including,

for example, undeveloped ocean beaches, major rivers and lakes, transportation and utility corridors

and areas compatible for siting of heavy industries such as power plants and refineries.18 Where

applicable, the state plan must also be consistent with any land use plans for nearby federal land, for

example, national parks and wildlife refuges, so that incompatible uses on non-federal land could

not damage or degrade the national resource.19

S. 3354 also required the Governor to designate, or create, an appropriate agency to

administer the planning program at the state level.20 That agency must meet certain federal

requirements including possessing statutory authority to acquire real property if necessary, to place

restrictions on land use activities in areas designated for special use by the plan, to conduct public

hearings with full public participation, and to have procedures to modify and change the state plan

physical conditions dictate that certain types of land use activities are incompatible and undesirable,(B) whose highest and best use, based upon projected State and National needs, on the Statewide Outdoor Recreation Plan required under the Land and Water Conservation Fund Act, and upon other studies, is recreational oriented use,(C) which are best suited for natural resource, heavy industrial and commercial development,(D) where transportation and utility corridors are or should, in the future, be located, and(E) which furnish the amenities and the basic essentials to the development of new towns and the revitalization of existing communities.

18    ? CR, supra note 1, at 1760.19    ? Senate Bill 3354, supra note 7, §406(b)(7).20    ? Id. at §403(a).

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to meet future requirements.21 Failure to meet these provisions subjected the state to termination of

federal financial assistance.22

Initially, a state could be eligible for funding by submitting a proposal to the Council setting

forth the planning it proposed to undertake, the financial and technical assistance required, the

anticipated time necessary to complete such planning and the estimated cost of those activities.23

The federal grant, if approved, would cover two-thirds of the state's expenses for the first three

years; thereafter, the grants were reduced to one-half.24 All grants would be made in addition to

any other planning money the state was already receiving under other federal programs.25

Additionally, once a state had submitted a proposal for a planning grant, or had adopted a land use

plan, all federal agencies, conducting or supporting public works activities in an area subject to a

state plan, were required to comply with the provisions of that plan, unless there were overriding

national policy considerations.26

To retain eligibility for federal land use planning grants, a state was required to develop its

21    ? Id. at §406(c)(2).22    ? Id. at §406(d).23    ? Id. at §404(a).24    ? Id. at §404(b). 25    ? Id. at §404(d). Planning money was primarily provided to states under the 701 assistance program of the Housing Act of 1954. (40 U.S.C. § 460 - 62) (1970). The 701 program was developed to encourage planning including surveys, land use studies, urban renewal plans, and technical services. William K. Reilly, New Directions in Federal Land Use Legislation, Urban Law Annual at 34 (1973).26    ? Senate Bill 3354, supra note 7, §408(b).

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land use plan within three years after the enactment of the bill.27 The Land and Water Resource

Council was charged with periodic review of the plan to insure conformance with the provisions of

the National Land Use Policy Act.28 Funding was subject to withdrawal if the Council found the

provisions of the plan failed to conform to the legislative requirements, if the state failed to

implement the plan, or if the state agency designated to administer the program did not meet federal

requirements.29 Prior to termination of funding, however, the state would be given notice and an

opportunity to present relevant evidence.30

If a state failed to adopt an acceptable land use plan within four years, its entitlement to

other federal programs, such as highway construction trust funds and other public work programs,

would be reduced at 20% per year until the state had complied with the act.31 Additionally, the

state would be denied the issuance of any right of way permits to use or cross federal lands until it

had complied with the provisions of the act.32

Jackson saw this bill as providing a framework within which local, state and federal

governments could cooperate to determine how best to manage the land. It was introduced,

however, as a working draft, on which "federal, state, and local officials, planners and

27    ? Id. at §406(b)28    ? Id. at §405(b)(5).29    ? Id. at §406(d). The agency must have the authority to implement the state plan within four years of the date of the enactment of the act. CR, supra note 1, at 1760.30    ? Senate Bill 3354, supra note 7, §406(d).31    ? Id. at §407(1).32    ? Id. at §407(2).

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representatives of industry, business and public interest [could] comment."33 Jackson hoped that

through the hearing process, national experts on land use would make recommendations and

provide guidance to create a more orderly, systematic program of national, state and local land use

planning.34

Hearings and Modifications

Hearings on S. 3354 were held before the full Committee on Interior and Insular Affairs on

March 24, April 28, April 29, and July 8, 1970. Testimony was heard from twenty nine

individuals, representing various federal agencies, state organizations and private industries.

Numerous written communications were also received and entered in the record.35 Generally, the 33    ? CR, supra note 1, at 1758. As this bill had not developed in the usual manner, at the request of a specific constituency, but rather was an attempt to join various interests in pursuing a common agenda, rational land use, Jackson and his aids saw the Senate hearings as an opportunity to discuss the general concept of land use, to generate support for the idea of a national land use policy and to discuss the particular components of the bill. Noreen Lyday, The Law of the Land 12 (Urban Institute, 1976).34    ? CR, supra note 1, at 1758.35    ? Senate Report 3354, supra note 3, at 24. For example, in August, 1970, the National Governors' Conference adopted a policy position calling for a national land use policy. This policy statement was submitted to the Committee. The Governors proposed that a national land use policy should:

1. foster economic growth of all states and regions;2. favor patterns of land use planning ... that are in accord with sound environmental principals and ... encourage the wise and balanced use of the nation's land and water resources;3. favorably influence population distribution such that scenic, environmental and cultural amenities are available to all;4. contribute to revitalizing existing rural communities and where appropriate new communities to offer diversity of opportunity and living style;5. assist states to assume responsibility for major land use planning and management decisions that are of regional, interstate and national concern;6. facilitate coordination between federal programs to

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testimony and submissions with respect to S. 3354 were favorable.36 However, while most agreed

that the issue of land use needed to be addressed, they did not always agree on how to solve the

problem. For example:

- on national guidelines: Senator Jackson realized the need for flexibility in land

planning and regulation, yet advocated for national guidelines. "Each state, with the advice of

communities, should devise its own plan. These plans should be diverse. Yet to allow diversity

encourage desirable patterns of land use planning.7. systematize methods for exchange of information (environmental, land use and economic) to assist all levels of gov't in the development and implementation of the National Land Use Policy.

Background Papers I, supra note 1, at 28.36    ? For example, Professor Lynton Caldwell of Indiana University, a co-author of NEPA viewed the bill as an appropriate, timely measure, crucial to the future development of the country. He saw the principal objective of such a land use policy to be the creation of a coherent and effective system for wise land use. Professor Caldwell stressed the importance of a comprehensive, national land use plan. He asserted that the bill would facilitate more detailed studies of land use regarding population trends, resource depletion, water contamination, etc., so that problems could be anticipated and dealt with in advance. Professor Caldwell was asked to remain with the Committee to hear subsequent testimony and offer his opinions. Hearings on S. 3354 Before the Senate Committee on Interior and Insular Affairs, 91st Congress, 1st Sess., at 29 (hereinafter Senate Hearings on S. 3354.) Philip Handler, President of the National Academy of Sciences noted that "the Academy is pleased to have this opportunity to comment favorably on the provisions of S. 3354 to strengthen federal support of programs that expand our basic knowledge about land use and strengthen our scientific understanding of the dynamics of economic and social growth. ... The program authorized by S. 3354 would provide constructive incentives for strengthening the scientific disciplines concerned with land use planning and improving the political mechanisms that manage regional and statewide growth. It thus represents an essential first step in our longer term objective of building a sounder and more objective basis for allocating public and private resources to developmental programs in a way that reflects a greater sensitivity to their consequences for society as a whole and their impact on the physical environment." Id. at 11.

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without prejudicing the needs of the people, the legislation must supply the States with guidelines

setting forth very clearly the national goals we seek to attain."37 Patrick Lucey, Governor of

Wisconsin testified that "a strong set of national guidelines is necessary. These would apply to

urban areas that transcend State boundaries, regional and national transportation systems. They

should delineate corridors through which oil, gas and electrical energy can move and other areas of

broader than statewide concern."38 Yet, despite the support, no national guidelines were ever added

to the bill.

- on who should make the land use decisions: Richard Babcock presented the

American Law Institute's Model State Land Development Code. "Local control should be given up

only when important state or regional interests clearly require it and then only to the degree

necessary to achieve the state or regional goal."39 The Council on Environmental Quality's40

chairman, Russell Train, commented that increased state control over local zoning regulations was

necessary.41 Senator Jackson, in response, pointed to the empowering provisions in §403(a)(1) that

37    ? Background Papers I, supra note 1, at 29.38    ? Id.

39    ? Id. at 30.40    ? NEPA established the Council on Environmental Quality, a three-member committee, appointed by the President and confirmed by the Senate, within the Executive Office of the President. CEQ was charged with developing presidential policy opinions for issues involving the environment. 42 U.S.C.A. § 4344. Undersecretary of the Interior, Russell Train, was confirmed as CEQ's first chairman. Lyday, supra note 33, at 18.41    ? Mr. Train also commented that the federal approach to land use must be two fold:

1. a land use program must identify and coordinate those activities of the government which impact land under private as well as public ownership; and

2. the program must account for the existing relationship between

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provided for state guidance, without constituting specific statewide zoning authority. Testimony

was also presented by the National Association of Counties, urging that planning should be

accomplished at the city or county level.42 National Service to Regional Councils testified that

planning should be accomplished by local officials acting through regional councils, which regions

would be established by state law or designated by the Governor.43

- on environmental protection: Senator Jackson testified that land use plans should serve as

a framework against which decision-making on environmental protection could be made.

To a very great extent all environmental management decisions are ultimately related to land use decisions. All environmental problems are outgrowths of land use patterns. The collective land use decisions which we make today and in the future will dictate our success in providing the American people with a quality life in quality surroundings. 44

George Romney, Secretary for HUD noted that environmental protection and the advancement of

social goals can be mutually reinforcing.

Sometimes locally unwanted development may be important to environmental protection objectives. For it is often the large or controversial project that is pushed off, in the absence of any more suitable site, to a remote or marginal location where there are marshlands, or forests, or valuable open space that would otherwise be protected. But failure to remove unnecessary constraints and to improve the efficiency with which land is made available for development has other adverse consequences. For if an adequate supply of suitably prepared land cannot be made available, there are human needs that will be filled only at much higher costs ....45

local, regional, state and federal agencies already involved in land use planning.

Train did not conclusively support the legislation but rather "reserved his options."Senate Hearings on S. 3354, supra note 36, at 88.42    ? Background Papers I, supra note 1, at 29.43    ? Background Papers I, supra note 1, at 31.44    ? Id. at 35.

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- on the need for managing and exchanging information regarding land use: Some

witnesses testified that data collection, although important, would be extremely time consuming and

expensive.46 However, there was also testimony regarding the extensive information already

amassed by various federal agencies, including the Department of Interior - Bureau of Land

Management (data on federal lands); Geological Survey (mapping information); Bureau of Outdoor

Recreation and the National Park Service (data on public parks and recreational facilities); and the

Bureau of Reclamation (data on rivers and river basins). J. Phil Campbell, Under Secretary for the

Department of Agriculture, in response to a question involving the types of data it gathered and the

possible impacts of a land use planning information center stated:

the Department has a capability to make national and interregional land use and production projections, based on its information about soils, land use, conservation needs, cropping patterns, projected crop yields for various kinds of soils, expanded markets for agricultural and forest products, with assumptions about foreign markets and population growth and distribution. The projections capability allows study of the land use implications of a number of important issues such as population redistribution, expanded agriculture exports, major resource developments investments .... The research arm of the Department undertakes a variety of physical, biological and behavioral science efforts of significance to land use policies and programs. 47

- on the administrative authority and organization of the Land and Water Resources

Council: Honorable Lloyd Meeds, U.S. Congressman from Washington (House of Representatives)

submitted a written statement asserting that the Water Resources Council did not have enough

experience to provide the kind of leadership the land use program required. He also argued that

only a system of "hierarchical authority" would be effective in coordinating the activities of

45    ? Id.

46    ? Senate Hearings on S. 3354, supra note 36, at Appendix 1.47    ? Id.

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governmental agencies and that any system based on cooperation was doomed to failure.48 Rex

Allen, President of the American Institute of Architects, suggested that an enlarged CEQ with

broader powers would be more effective in administering the act.49

Amendments to S. 3354

As a result of the hearing process, S. 3354 underwent significant amendment. Some of the

major changes to the legislation included a strengthening of the provisions regarding conformity

review of state land use plans by the proposed Land and Water Resources Council. As modified,

the Council's review included not only a determination as to whether the state's plan conformed to

the guidelines set forth in the LUPA, but the Council was required to:

(i) analyze the plan to determine if it would achieve the optimum use of the land and

water resources in the area involved;

(ii) determine the efficacy of the plan in achieving the goals of other programs for the

development of agriculture, urban, energy, industrial, recreational, fish and wildlife and other

resources; and

(iii) determine if the plan would contribute to achieving the nation's environmental, social

and economic goals.50

Additionally, the Council was charged with creating a Federal Planning Information Center

where copies of all approved state plans would be kept, along with copies of all federal initiatives

48    ? Id. at 103.49    ? Id. at 38.50    ? Senate Report 3354, supra note 3, §104(c) of S. 3354, as reported out of committee.

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affecting land use.51 To the extent practicable, the Council was to retain plans of local governments

and projects that would have regional impacts. Statistical data on past, present and projected land

use patterns was to be gathered, as well as studies regarding various techniques and methods for

evaluating land use related data. All information was to be made available to federal, state and

local agencies involved in land use planning and to interested members of the public.52

As modified, S. 3354 required states to develop and submit their statewide plan within five

years, as opposed to the original time limit of three years.53 Exempted from coverage under S.

3354, as reported out of committee, were cities with populations in excess of two hundred and fifty

thousand, or those with populations in excess of 20 per cent of the total population of the state.54

An additional provision was added specifically noting that "nothing in this Act shall be deemed to

preclude the delegation by the state agency to local governmental entities of authority to plan for

land use and enforce land use restrictions adopted pursuant to the statewide land use plan."55

Despite this clause, however, the state agency was ultimately responsible for submitting a single,

statewide plan to the Council and for determining that all local plans created with federal funds

were consistent with the statewide plan.56

Also added was a provision that, upon completion, a state would submit its land use plan to

the Council and any federal agencies that the Council required. If the plan conformed to the federal

51    ? Id. at 3.52    ? Id. 53    ? Id. at 10, § 305(b).54    ? Id. at 10, § 305(b)(1)(B).55    ? Id. at 12, § 305(e).56    ? Id. at 12, §§ 305(e)(1) through (3).

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guidelines, was compatible with plans of other states in the region and did not conflict with other

federal programs it was approved.57 If a state's plan was denied, the state was entitled to appeal the

Council's decision to an ad hoc hearing board for a determination as to whether the disapproval was

reasonable. If found to be unreasonable, approval of the plan was mandated.58

Funding was increased to 90% for the first five years and reduced to two-thirds thereafter.59

The sanctions provisions were also strengthened. If a state did not submit a statewide plan in

accordance with the act within five years, no federal agency was permitted to undertake any new

action or financially support any state action that may have a substantial adverse environmental

impact.60 Proposed appropriations for the Act were $100 million annually for the grant in aid

program and an additional $16 million for administration costs, including contract studies.61

Summary of S. 3354

As reported out of committee on December 14, 1970, S. 3354 was intended to afford

maximum discretion to state and local governments. It provided funds to the states to inventory

their resources and collect land related data. Based upon this information, the state would designate

areas where development was desired, and should be encouraged, as well as areas where

conservation was more appropriate. Plans were required to be submitted within 5 years and subject

to review and approval by the Council.

57    ? Id. at 12, § 306(a)(3).58    ? Id. at 13, § 306(c).59    ? Id. at 14, § 310(a).60    ? Id. at 16, § 315(a).61    ? Id. at 16, § 403.

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The intent of the act was to create a framework for coordination of federal, state and local

planning efforts, to avoid overlaps and inconsistencies. To further this objective, it included a

system of forums to resolve conflicts and establish consensus.62 In Senator Jackson's opinion,

controversies arose because federal agencies failed to consider the implications of their actions on

the states. Additionally, Jackson believed that most federal, state and local projects were

commenced prior to adequate planning. The Jackson bill, therefore emphasized future planning

aimed at coordinating the actions of all levels of government. To Jackson, comprehensive planning

was not an academic exercise but an integrative process where all involved agencies and the public

worked together to develop a vision for their communities and state.

Although the focus of the legislation was on the role of the state, the Act recognized the

long tradition of home rule in many areas across the nation and specifically provided for state

delegation of authority and financial incentives to local governments.63 Strong incentives were also

provided to encourage implementation of the state plans.64 Once approved, all federal actions were

required to conform to the state plan. Thus, the Jackson vision saw the comprehensive land use

plan as the key to organizing the future development of the state.

Although Senator Jackson planned to bring the bill for a vote on the Senate floor before the

end of the year, Senator Muskie, exercising his senatorial prerogative, placed a personal hold on the

bill.65 Identical legislation was reintroduced the following year.62    ? Id. at 22.63    ? Id. 64    ? Id. at 21.65    ? Lyday, supra note 33, at 15. Senator Muskie challenged the jurisdiction of the Senate Interior and Insular Affairs Committee over land use asserting that the issue overlapped the jurisdiction of several other committee including

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92d Congress - Senate bills S. 632 and S. 992

On January 26, 1971, Senator Jackson introduced S. 632, the Land and Water Resource

Planning Act of 1971.66 The provisions of the bill were identical to those contained in S. 3354, as

reported.67 Also introduced by Jackson in the 92nd Congress, at the request of President Nixon,

was S. 992, the administration's bill entitled the National Land Use Policy Act of 1971.68

Senator Jackson had urged the administration to support his bill or develop its own land use

banking, housing, agriculture, as well as others. A Muskie aid is reported as stating, "Congress has not determined who has jurisdiction over land use. The Interior Committee has just assumed it. Because the committee assumed it does not mean it has the necessary jurisdiction." Washington, D.C. Evening Star, December 29, 1970. Bad feelings between Muskie and Jackson can be traced back to the days when NEPA was being crafted. Muskie's Public Works Subcommittee on Air and Water Pollution had been working on an environmental policy bill since 1963, compiling a hearing record of nearly 16,000 pages. When Jackson's bill, S. 1075 (NEPA), was passed on the Senate floor on July 10, 1969, Muskie was outraged. Peter J. Ognibene, Scoop: The Life and Politics of Henry M. Jackson (Stein and Day, 1975) at 144-145. Presidential politics were also involved as Muskie and Jackson were rivals for the presidential nomination. John C. Whitaker, Striking A Balance, Environmental and Natural Resources Policy in the Nixon-Ford Years (American Enterprise Institute for Public Policy Research, 1976) at 49.66    ? S. 632, 92d Congress, 1st Sess. (introduced January 26, 1971).67    ? S. Rep. No. 92-869, 92d Congress, 2d Sess. (1972) at 43.68    ? During the 92d Congress, pending before 13 committees, were over 200 measures relating to land use. The most significant of these acts were the national land use policy, coastal and estuarine zone management, public lands policy, surface mining and reclamation and powerplant siting. Congress enacted the Coastal Zone Management Act of 1972. Committee on Interior and Insular Affairs, National Land Use Policy Legislation - 93rd Congress: An Analysis of Legislative Proposals and State Laws (1973) at 3, 5 (hereinafter Background Papers II).

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policy. In April, 1970, John Ehrlichman, Nixon's White House Counsel,69 who had been a land use

attorney before joining the administration, met with members of the Senate Interior and Insular

Affairs Committee to discuss the issue of land use legislation.70 Although Ehrlichman would not

commit to any particular legislation, he noted that the CEQ staff had been instructed to draft a bill.

On February 17, 1971, that bill, S. 992 was introduced in the Senate and referred to Jackson's

committee.71

Background - S. 992

Within the CEQ, William Reilly and Boyd Gibbons were primarily responsible for crafting

the President's land use position.72 The Council members believed that land use problems stemmed

from the inability of local agencies to deal effectively with issues that extended beyond their limited

political jurisdictions.73 As a result, issues that required regional solutions, such as protection of

69    ? John Ehrlichman, Witness to Power: The Nixon Years (Simon & Schuster, 1982) at 82.70    ? John C. Whitaker, Striking A Balance, Environmental and Natural Resources Policy in the Nixon-Ford Years (American Enterprise Institute for Public Policy Research, 1976) at 155.71    ? Nixon, in his February 8, 1971 message to Congress on the environment described the purpose of the land use legislation. "While most land use decisions will continue to be made at the local level, we must draw upon the basic authority of state government to deal with land use issues that spill over local jurisdictional boundaries. The states are uniquely qualified to effect the institutional reform that is so badly needed, for they are closer to the local problems than is the federal government and yet removed enough from local tax and other pressures to represent the broader regional interests of the public." Richard Corrigan, Interior Department Finesses HUD in Scramble Over Land Use Program, National Journal Reports, March 20, 1971, at 598.72    ? William K. Reilly, National Land Use Policy, in Erica Dolgin and Thomas Guilbert, eds., Federal Environmental Law, Environmental Law Institute (West Publishing, 1974) at 1417. 73    ? "[B]ecause of their limited geographic scope, [local governments] ...

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natural resources and housing, among others, went unaddressed. Reilly and Gibbons turned to the

Model Land Development Code developed by the American Law Institute for guidance in drafting

the administration's bill.74

The central thesis of the Model Code was that if a land use decision affected more than one

municipality, the state should exercise jurisdiction over that decision. It suggested that states

develop plans for these areas of "critical importance" and assume authority over all regulation for

those areas. The ALI estimated that only 10% of a state's land use decisions involved areas of

critical importance, leaving 90% of the decisionmaking in the hands of local government.75

Provisions of S. 992

The Nixon bill was similar to Jackson's in that both provided for federal grant programs;

however, S. 992 encouraged the states to develop land use control programs only for certain critical

cannot provide anything resembling a land use system. The narrow authority of each permits it to ignore what the decisions of all will do to the natural and human systems regionwide." Id. at 1417, citing Council on Environmental Quality, First Annual Report at 184 (1970). 74    ? American Law Institute, A Model Land Development Code, Tentative Draft No. 3, (April 22, 1971). Reilly had worked in Chicago with Richard Babcock and Fred Bosselman, two attorneys who were instrumental in drafting the ALI's Model Land Development Code. The ALI code, if adopted by state legislatures, would replace the Standard State Zoning Enabling Act and the Standard City Planning Act developed by the Department of Commerce in the 1920s. These acts were adopted by a majority of states and provided the legal basis for municipal land use planning and zoning authority. Whitaker, supra note 69, at 155. See also Lyday, supra note 33, at 19 - 24.75    ? Whitaker, supra note 66, at 156.

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areas and uses: areas of critical environmental concern,76 key facilities,77 land use or development

of regional benefit78 and large scale development.79 Under the program, managed by the Secretary

of the Interior, a state would be eligible for biannual grants, not exceeding 50% of the cost of the

state's planning program.80 Twenty million dollars was initially allocated to cover a period of five

years.

76    ? "Areas of critical environmental concern" are defined as "areas where uncontrolled development could result in irreversible damage to important historic, cultural, or aesthetic values, or natural systems or processes, which are of more than local significance; or life and safety as a result of natural hazards of more than local significance." These areas include coastal zones and estuaries, shorelands, flood plains of rivers, lakes and streams of state importance, rare or valuable ecosystems; scenic or historic areas; and any additional areas which a state determines to be of critical environmental concern. S.992, supra note 64, at §102(a).77    ? Key facilities are defined in the statute as "public facilities which tend to induce development and urbanization of more than local impact." These include airports, interstate highway interchanges, and major recreational land and facilities. Id. at §102(b).78    ? These include any development "for which there is a demonstrable need affecting the interests of constituents of more than one local government which outweighs the benefits of any applicable restrictive or exclusionary local regulations." Id. at §102(c). Such developments include power plants, low-income housing and other land uses often considered undesirable by a locality. 79    ? Id. at § 104. 80    ? Id. at §103(a). The Secretary of Housing and Urban Development was required to review and approve the state plans. Id. at §105(a). Prior to the bills introduction, there was a jurisdictional battle waged over which department should administer the plan. As HUD was very involved in urban planning under the 701 program, then Secretary Romney believed that HUD would be the most appropriate agency to oversee any land use legislation. However, HUD had very little experience in nonurban planning and was seen as too "pro-development" to administer what was essentially an environmental bill. Whitaker, supra note 66, at 159. "[Interior Secretary Rogers C. B.] Morton, in a last minute power play, took the key role from HUD Secretary George W. Romney. The Council on Environmental Quality had

23

To be eligible to participate in the grant program, a state must first inventory and designate

areas of critical environmental concern and those impacted by key facilities. Additionally, the state

must establish methods to exercise control over land use decisions within these areas and assure that

local regulations do not unduly restrict developments of regional benefit.81 Once a state's plan was

approved, federal projects and activities were required to be consistent with that plan, unless there

were overriding national interests.82 If a state had not planned in accordance with the statute, any

federal agency proposing any major federal action affecting land use was required to hold public

hearings in that state. Additionally, the agency was required to consider the land use implications

of the proposed action when conducting the environmental impact review mandated under

NEPA.83

Amendments to S. 992

On March 6, 1972, at the request of the executive, Senator Jackson introduced amendments

drafted a bill giving Romney's department primacy. But, at a meeting between the two secretaries and CEQ Chairman Russell E. Train six days before delivery of the President's Feb. 8 environmental message to Congress, Morton insisted on a reversal of roles, and he prevailed." Richard Corrigan, Interior Department Finesses HUD in Scramble Over Land Use Program, National Journal Reports, March 20, 1971, at 597.81    ? S. 992, supra note 64, at §104(a).82    ? Id. at §106(a). No definition or explanation was provided, in the legislation or otherwise, for the type of action that might constitute an overriding national interest.83    ? Id. at § 107. As late as February 3, 1971, the bill contained a sanctions provision: if any state failed to develop adequate procedures for producing a land-use plan, the state's federal highway, outdoor recreation and airport funds could be cut by 7% each year up to a maximum reduction of 21%. The provision was abandoned because CEQ feared that the bill would never pass if it contained sanctions. Whitaker, supra note 66, at 158.

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to S. 992.84 The focus of these changes was to add a provision for sanctions to the administration's

bill. Within three years after enactment, if a state was found ineligible for a management grant

under the act,85 federal funds for airport development, highways, and land and water conservation

funds would be withheld at a rate of 7% the first year of ineligibility, 14% the second and 21% in

the third.86 Any funds withheld were made available to states found eligible for assistance under

the act.87

The Debate

The fundamental differences between the two bills were detailed in the Washington Post at

the end of 1971. On November 17, 1971, an editorial focusing on the need for national land use

legislation specifically supported Jackson's bill, as it required states to engage in comprehensive

84    ? Technically, the amendments were not made to S. 992, but rather to provisions of other federal statutes, specifically, §15 of the Airport and Airway Development Act, P.L. 91-258, §104 of title 23 of the United States Code, the Federal Aid Highways Fund, and Subsection 5(b) of the Land and Water Conservation Act of 1965, P.L. 88-578. These federal statutes contained various funding programs which funding was, under the amendment to S. 992, now subject to compliance with the national land use program. Amendment No. 996. to S. 992, 92d Congress, 1st Sess., (March 6, 1972) (hereinafter S. 992 Amendments).85    ? A state could be found ineligible if its plan was not approved by the Secretary of the Interior, if it failed to adequately implement the plan, or otherwise failed to follow the requirements of the legislation. 86    ? S. 992 Amendments, supra note 84. It is not clear what would occur if a state failed to participate in the national land use planning process. If a state never submitted an application for a grant, it could hardly be considered "ineligible" under the program. The sanctions, however, were imposed only on those states found "ineligible" to receive a grant. Nonetheless, it appears, considering the intent of the legislation, that sanctions would be imposed.87    ? Id.

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planning, as opposed to the administration's approach of selective area planning.88 Shortly after this

editorial ran, CEQ's chairman, Russell Train responded, giving three reasons why the

Administration's approach was superior. First, the results of comprehensive planning, required for

nearly half a century, had been at best unimpressive.89 Secondly, state's should be involved in land

use planning only when concerns of state or regional significance were at issue. Third,

developments such as low income housing were often excluded by localities despite a need in the

region for this type of housing. Train wrote, "the administration's land use bill goes beyond

planning to the central issue of control ... calling for a fundamental reallocation of responsibilities

between state and local governments where regional issues are involved."90

Senator Jackson's response ran on December 28, 1971.91 He cited several reasons why the 88     ? The fundamental difference between the

two bills: Jackson's calls for comprehensive statewide planning based on over-all economic, social and environmental concerns. It challenges the planners to assure a brighter future by bringing our economic and social needs into balance with the requirements of the natural ecology. The administration bill would have the state plans focus only on areas of critical environmental concern. ... We need more than that. It is none too soon to get started on acting rather than merely reacting to the problems posed by the second America. It must be comprehensively planned, as Senator Jackson proposes, if it is to be a liveable place.

Editorial, Planning the Second America, Washington Post, Nov. 20, 1971, reprinted in Background Papers I, supra note 1, at 21.89    ? Train was referring to the requirement contained in the Standard Zoning Enabling Act, adopted by most states, that required zoning to be in conformance with a comprehensive plan.90    ? Russell E. Train, Letter to the Editor, Washington Post, December 15, 1971, reprinted in Background Papers I, supra note 1, at 22-23.91    ? Senator Henry M. Jackson, Letter to the Editor, Washington Post, December 28, 1971, reprinted in Background Papers I, supra note 1, at 24-

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Administration's bill was inadequate to foster wise land management. First, the categories listed in

S. 992 requiring the state's attention, could be defined so narrowly or broadly as to negate any

positive effect. "For example, one state might declare its entire coastal zone to be an area of critical

environmental concern and thereby inhibit construction of needed housing. ... Another state,

anxious to expand its tax base, could narrowly define the areas of critical concern and thereby limit

consideration of environmental requirements." Additionally, unless the state labels an area as one

of the three categories, it does not have any authority with regard to planning for that area. Third,

Jackson believed that the label approach to legislation did not encourage flexibility; rather it

precipitated "brush fire", short-term action. Pressures from conservationists could evoke sudden

state assumption of control over the proposed sites of power plants; pressure from transportation

advocates would invite state control over highway and air sites. According to Jackson, the exercise

of state control to solve these immediate problems "invites narrow consideration of the important

problems at hand. Comprehensive planning would ensure a broad and careful consideration and

integration of all relevant social, economic and environmental concerns. Comprehensiveness refers

to the breadth of consideration and does not call for indepth intervention by the state in truly local

decisions."92

Secretary of the Interior, Rogers C. B. Morton had the last word.93 Although clearly an

advocate of the Administration's position, he commended the Editor of the paper for "putting his

finger on the heart of the environmental issue. Land use, in fact, is the key to all the rest of our

25..92    ? Id. at 25.93    ? Rogers C.B. Morton, Letter to the Editor, Washington Post, January 4, 1972, reprinted in Background Papers I, supra note 1, at 25 - 27.

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environmental problems."94

The Combination Bill - Amendments to S. 632

Four days of hearings on the two bills were held on May 18, June 7, 22 and 23, 1971.95

Most of the testimony addressed issues similar to those raised in the editorial exchange:

comprehensive planning as opposed to designated area planning, state as opposed to local control,

and the need for specific environmental standards to be included in the bill to prevent states from

favoring development over conservation. Shortly after the hearings, Stephen Quarles, an Interior

staff member, was given the task of creating a compromise bill, in an attempt to harmonize the

Jackson and Administration's proposals.96

The amended version of S. 632, the Land Use Policy and Planning Assistance Act of 1972,

introduced in June, 1972, combined the planning features of the Jackson bill with the regulatory

framework of the Administration's.97 It was favorably reported out of the Senate Interior and

Insular Affairs Committee on June 19, 1972.98 As reported, the program would be administered

through the Secretary of the Interior, acting through a newly created Office of Land Use Policy

94    ? Id. at 27.95    ? The Commerce, Banking and Housing and Urban Affairs Committees also received comments on the bills during hearings on other proposals. Background Papers II, supra note 64, at 5.96    ? Lyday, supra note 33, at 28.97    ? Stephen Quarles decided to adopt the category approach of the Administration's bill as he believed that the states would be unable to set up comprehensive programs. James Noone, Senate, House Differ in Approaches to Reform of Nation's Land-Use Laws, National Journal, July 22, 1972, 1193.98    ? S. Rep. 92-869, 92d Congress, 2d Sess. (June 19, 1972) (hereinafter Senate Report 632). The Administration's bill, S. 992, was not reported out of Committee.

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Administration.99 Also established was a National Advisory Board on Land Use Policy, an

interagency group, created to advise the Secretary on land use policies and programs. The Board

would also assist the Secretary in review of the state plans.100

The compromise bill retained the land use data collection requirements of the original

Jackson proposals while adding some new requirements. Within three years from the enactment of

the bill, the state must establish an adequate state agency to administer the plan; create an inventory

of land and natural resources; collect data on population trends, economic characteristics and

projections; and develop projections for the quantity of land needed for various land uses. In

addition, the state should establish a method to identify large scale and regional benefit

developments; to inventory and designate areas of critical environmental concern and those

impacted by key facilities; to coordinate programs and services of state and local agencies affecting

land use; and hold public hearings on the planning process, affording the public and local

governments an opportunity to participate.101

S. 632, as amended, differentiated between land use planning and programs. Whereas

Jackson's original proposal was for states to engage in comprehensive planning, developing

99    ? Id. at §202. The establishment of an Office of Land Use Policy Administration represented a compromise between the Administration's bill, vesting authority in the Interior Department, and Jackson's which proposed an interagency approach through expansion of the Water Resources Council. "The real heart of the original Jackson bill was that it should not be mission oriented, that it would not aim to further certain social, economic or environmental goals. The Senator's notion is that land use is an effective tool to balance these kinds of considerations. It was decided that the new office in Interior - and not some mission oriented bureau - would be a fairly neutral place to put it." Noone, supra note 97, at 1193.100    ? Senate Report 632, supra note 98, at §203.101    ? Id. at §302.

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statewide plans, the new bill required only that states create, within five years of enactment, land

use programs for the four areas of concern detailed in the Administration's bill: areas of critical

environmental concern; areas impacted by key facilities; large scale developments; and large scale

subdivisions. The state could exercise authority over these areas in one of two ways: either directly

or through review of local government plans. The state, however, must possess the statutory

authority to override local plans that were inconsistent with the state's land use plan for a designated

area.102

With respect to the designation of areas within the state, the Secretary of the Interior was

required to review the plan to determine that the state had not omitted any areas of critical

environmental concern that were of national significance. Additionally, for the plan to be

approved, the Secretary must find that the state was engaged in a good faith effort to implement the

plan, that it had been approved by the Governor, was coordinated with plans of state agencies,

federal agencies, local government, environmental programs including the Clean Air Act and the

Clean Water Act, and that the state was participating in the HUD 701 planning program.103

The sanctions provision from the Administration's bill was included, whereby any state

found ineligible for a grant, after five years, would have their funding for airport development,

federal highways and land and water conservation reduced each year by 7% cumulatively, for a

maximum of 21% at the end of three years, eight years after enactment of the bill.104 The Interior 102    ? Id. at §303.103    ? Id. at §304.104    ? Id. at §307(d). These sanctions were stronger than those contained in the Jackson bills for federal highway funds were not subject to reduction under S. 3354 or S. 632 as introduced. According to the Senate Report, these three programs were chosen for withholding of funds as they were deemed to have the most significant long range and irreversible impacts upon land use

30

Department estimated that states were receiving $1,756,775,000 under these three programs. Seven

percent of that amount would equal $123,007,000.105 However, as opposed to allowing these

monies to be made available to the eligible states, any money retained would be held by the

Treasury until the state complied with the requirements of the land use program. At that time, all

monies previously withheld were to be returned to the state.106

Appropriations were set at $100 million annually for eight years, with an additional $10

million annually, over five years, for administration.107 Funding allotments to states were set at

90% for five years, reduced to two-thirds thereafter. These amounts were set in accordance with

the provisions contained in the Jackson bills; the Administration had advocated for only $20 million

over five years, with grants not exceeding 50% of state costs.108

Debate and Amendment of S. 632

Senator Jackson, during the Senate floor debate on S. 632, stated that the measure

"contained the best features of [his] previous land use bill, the Administration's proposal ... and the

many recommendations received during the 2 1/2 years of Committee debate."109 He noted that the

proposal was supported by the Governors' Conference, nearly 30 individual governors,

representatives of county and city governments, all major conservation and environmental groups,

patterns because of the exceptional influence they have on development. 105    ? Noone, supra note 97, at 1193.106    ? Senate Report 632, supra note 98, at §307(d). 107    ? Id. at §510.108    ? See footnote 80, supra, and accompanying text. 109    ? Background Papers II, supra note 64, at 15.

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many industries, farm groups and water resource associations.110

Several amendments were offered to the bill during the floor debate. In particular, two

amendments substantively altered the bill. Senator Clifford Hansen's amendment virtually

eliminated the sanctions provision. Senator Len B. Jordan's amendment cut the authorization for

appropriations from $800 million, in the aggregate over eight years, to $170 million. Additionally,

allotments to states were reduced from 90% for the first five years and two-thirds thereafter to two-

thirds for the first two years and 50% thereafter.111 On September 19, 1972, the Senate passed the

amended Land Use Policy and Planning Assistance Act of 1972 by a vote of 60 to 18.112 The

House version of the bill, H.R. 7211, never reached the floor for debate.113

93rd Congress - Senate Bill 268

On January 9, 1973, the Land Use Policy and Planning Assistance Act of 1973, S. 268, was

introduced to the Senate, identical to S. 632 as amended and passed by the Senate during 1972. 114

Senator Jackson, in his introductory statement to the Senate, noted his displeasure with the recent

amendments to the bill.

As is well known, I was and remain opposed to two successful amendments striking the sanctions from the Act and reducing the funding by two thirds. Several amendments proposed by Mr. Muskie which were not adopted did raise significant issues which deserve further scrutiny. Therefore, although the proposal I introduce today is virtually identical to the Senate-passed measure, the Committee will hold hearings early in February where these issues and the critical questions of funding

110    ? Id.

111    ? Id. at 16.112    ? Id. at 13.113    ? Id. 114    ? S. 268, 93d Congress, 1st Sess. (January 9, 1973).

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and sanctions can be fully explored.115

Also introduced in the 93d Congress was the Administration's bill, S. 924.116

Hearings on the two bills, S. 268 and S. 924, were held on six days, February 6, 7, 26, 27,

April 2 and 3.117 In an attempt to focus critical attention on the legislation, Senator Jackson invited

the chairmen of the Senate Committees on Agriculture and Forestry, Banking, Housing and Urban

Affairs, Commerce, Public Works and the Subcommittee on Air and Water Pollution to testify

before and participate with the Interior Committee in the hearings. Only two Senators, Magnuson

and Hollings accepted the invitation and testified.118 In addition, at Senator Jackson's invitation,

witnesses were asked to address, by testimony or written response, a series of questions regarding

policy issues that were raised in discussions on S. 632.119 In all, 41 witnesses testified including

governors, state legislators, experts in land use, conservationists, business leaders, members of the

115    ? Congressional Record, January 9, 1973, at 380.116    ? S. Rep. 93-197, 93d Congress, 1st Sess. (1973) at 85 (hereinafter Senate Report S. 268). There were four significant differences between the Jackson bill and the Administration's bill, as introduced:

1. the executive's bill provides for land use programs to be developed within three years, as opposed to five years in S. 268;

2. the administration's bill contained the sanctions provision, as originally proposed;

3. S. 924 provides for a federal review board to hear appeals from states who have been determined ineligible for the grant program. The Jackson bill provides for an ad hoc board comprised of federal and state members.

4. the Nixon bill would link the implementation of the Coastal Zone Management Act with the national land use policy act.James Noone, Senate Committee Acts on Land Reform; Bill Would Aid States' Planning Role, National Journal, June 2, 1973 at 796.117    ? Senate Report S. 268, supra note 116, at 85.118    ? Id. at 85.119    ? Background Papers II, supra note 64, at 81, 82.

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administration and academics.120

There was little discussion during the hearings involving whether or not a national land use

policy was desirable; most witnesses acknowledged that the policy was necessary. Instead, the

debate focused on specific issues such as the need for national policy guidelines, the desirability of

sanctions, the appropriate level of funding, the allocation of funding to the states, property rights

protection and the federal review of state plans.

One of the central issues addressed during the hearings dealt with the need for national

policy guidelines.121 Three basic arguments were raised in favor of national land use guidelines.

First, without guidance, states might adopt land use programs that could frustrate issues of national

interest such as environmental protection and energy supplies. Second, without guidance, the

defacto land use policy of the nation would be the equivalent of fifty different state land use

policies. Third, interstate inefficiencies could result from the divergent land use policies of the

states.122

Several arguments were made against the legislation containing any national guidelines.

First, the diversity of the United States prohibits the issuance of any meaningful, uniform

guidelines. What might be appropriate for an urbanized eastern state may be completely

inappropriate for a rural western state. Additionally, the objectives of the national land use

120    ? Id.

121    ? See, for example, statement by John Loftis, Jr., Vice President, Exxon Co., USA. "The federal role should not be to participate directly in land use planning ... but should be to provide broad guidelines or establish national goals to inform state land use planners of national needs." Hearings on S. 268 Before the Senate Committee on Interior and Insular Affairs, 93d Congress, 1st Sess., at Part, 87 (hereinafter Senate Hearings S. 268).122    ? Senate Report S. 628, supra note 116, at 48.

34

legislation, namely the achievement of certain social, environmental and economic goals were

contained in several other federal statutes, and therefore, as S. 268 did not repeal these laws, the

national interests were already protected. Finally, there was no semblance of consensus regarding

what the substance of national guidelines should be.123

The Committee, in response to these arguments, adopted an amendment to S. 268 providing

for a three year study by CEQ, with participation by the Interagency Advisory Board on Land Use

Policy,124 the states and local governments. The study was to determine the need for and

appropriate substance of national guidelines.125 A report was to be submitted, at the end of three

years from the date of enactment, at which time Congress would determine what, if any, national

guidelines were appropriate.126

Considerable attention was focused on the need for sanctions to enforce the provisions of

the national land use bill. CEQ chairman Russell Train advocated for tough sanctions. He stated,

"many have argued that if the land use bill simply contains sufficient money, the job will get done.

I disagree. ... [I]t is the premise of the Administration's approach that without sanctions in the bill,

prospects for truly effective state land use control will be compromised."127 Fred Bosselman also

123    ? Id. at 49.124    ? Formerly referred to, in S. 632, as the National Advisory Board on Land Use, the Interagency Advisory Board on Land Use Policy was to contain essentially the same members and have the same duties as the National Advisory Board on Land Use. S. 268, as reported, June 7, 1973, at § 304, reprinted in Senate Report S. 268, supra note 116, at 1-34 (hereinafter S. 268 as reported). 125    ? S. 268, as reported, supra note 124, at §307.126    ? Id. at §307.127    ? Senate hearings S. 268, supra note 121, at Part 1, 182.

35

testified in favor of sanctions. "My experience has made me strongly aware of the difficulty states

will have in reaching a consensus on a rational land use policy. ... There will be great temptation to

avoid the hard decisions that need to be made. Meaningful sanctions in the federal legislation will

help accomplish the head-knocking that will be needed."128 Although Senator Jackson strongly

favored the sanctions' provision, he feared that other committees, specifically those with

jurisdiction over highway and airport projects, would delay movement of the bill if it contained the

provision. Jackson decided the best approach would be to offer the amendment during the floor

debate in the Senate.129

Senators Clifford Hansen and Paul Fannin argued that sanctions were the equivalent of a

termination of the state's right to determine its own future.130 Additionally, they alleged that

sanctions extended the federal role in land use control into land use decisionmaking. After

considering all the arguments, the Committee decided against including the sanctions provision

contained in the Administration bill and S. 632, as introduced. Instead, the only funds to be

withheld for noncompliance with the Act were the planning monies allocated under S. 268.131

Another principal issue raised in the hearings concerned funding: the amount of money that

would be appropriated for the act and how it would be allocated to the states. Senator Jackson

supported reinstating the funding level as originally provided in S. 632, namely $100 million

annually for eight years, calling the Administration's recommendation of $20 million "woefully

128    ? Id. at 343.129    ? Noone, supra note 116, at 794.130    ? Senate hearings S. 268, supra note 121, at Part 4, 103, 104.131    ? Senate Report S. 268, supra note 116, at 41.

36

inadequate."132 With the sole exception of the Administration, all witnesses were unanimous in the

opinion that the higher funding level was necessary. The Committee adopted an amendment

increasing the funding to $100 million per year for eight years133 and reinstating the original

Jackson levels of allocation. Grants would cover 90% of the state's costs for the first five years and

two-thirds thereafter.134

Concerns were raised regarding protection of the rights of property owners. Senators

Jordan and Hansen had proposed an amendment to S. 632 during the Senate floor debate that

required compensation be paid to landowners whose property values were diminished as a result of

regulations issued pursuant to the act.135 That amendment was adopted and incorporated into S.

632. During the hearings on S. 268, the propriety of that amendment was discussed. Questions

about the potential effects of this amendment were raised by several private persons and

government officials. John Whitaker, Acting Secretary of the Interior, summed up the Committee's

opinion by stating:

Since the right to petition for compensation for an unconstitutional denial of due process would exist irrespective of [the Jordan amendment], that section could be construed as requiring compensation for any restricted use under the state's land use program whether the restriction was constitutional or not. This undercuts a fundamental purpose of the bill which is to encourage states to use their regulatory

132    ? Background Papers II, supra note 64, at 86.133    ? S. 268, as reported, supra note 124, at §608.134    ? Id. at §606.135    ? "Any person having a legal interest in land, of which a state has prohibited or restricted the full use and enjoyment thereof, may petition a court of competent jurisdiction to determine whether the prohibition diminishes the use of the property so as to require compensation for the loss and the amount of compensation to be awarded therefor." S. 632, §303(b)(2)(E), Congressional Record, September 19, 1972, at 31220.

37

authority to achieve land use objectives to the fullest extent permissible under the federal and state constitutions.136

The Committee chose to delete the Jordan amendment and replace it with the following:

Nothing in this Act shall be construed as enhancing or diminishing the rights of owners of property as provided by the Constitution of the United States or the constitution of the State in which the property is located.137

It was believed that this wording assured property owners that their constitutional right to

compensation for an unconstitutional taking of their land was protected.138

There was also significant testimony regarding the scope of review which the federal

government should have over state plans. Interior Secretary Morton testified that this authority

would not be to dictate what should be in the state program, but rather only to judge whether the

state had complied with the spirit of the act.139 Governor Robert Docking of Kansas testified that

while the states should determine the contents of the plan, the federal government should ensure

that no state's plan is so lax as to compromise the goals of other states.140 Governor Wendall Ford

of Kentucky suggested that even on issues of national concern, the states should be given the

opportunity to deal with the problem, prior to federal intervention.141

The Committee chose to adopt an amendment limiting the federal review of state plans to a

determination as to whether the state made a "good faith effort" with respect to land use planning

136    ? Senate Report S. 268, supra note 116, at 56.137    ? S. 268, as reported, supra note 124, at §203(f).138    ? Senate Report S. 268, supra note 116, at 56.139    ? Background Papers II, supra note 64, at 87.140    ? Id. at 88.141    ? Id.

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adjacent to federal lands. With respect to designation of critical areas of concern, however, the

federal government was only required to find that the state's plan was reasonable.142

The bill, as amended, was ordered reported by the Committee by a vote of 10-3 on May 29,

1973.143 After two days of floor debate, with approximately a dozen amendments proposed on the

floor, the bill passed the Senate by a vote of 64-21, virtually as reported.144 It was believed by

many that the 93rd Congress would finally pass land use legislation.145

The House of Representatives

Over the years that Jackson's bills were before the Senate, similar bills had been introduced

in the House of Representatives, yet the House had moved very slowly.146 Rep. Wayne Aspinall,

chair of the House Interior and Insular Affairs Committee, asserted early jurisdictional control over

142    ? Noone, supra note 116, at 794.143    ? Id.

144    ? James A. Noone, Congress Moves Toward National Land Planning and Management Legislation, National Journal, June 30, 1973 at 964. The following were the votes on the significant amendments offered on the floor:

On sanctions: Senator Jackson's proposal that the provision be reinstated was defeated 44 to 52. During the debate, Jackson said he preferred to call the provision an "additional incentive" rather than a sanction.

On funding: the Administration offered an amendment to decrease the funding. It was defeated by a vote of 27 to 57.145    ? James A. Noone, Land Use Planning Bill Headed for House Floor Vote, National Journal, February 2, 1974. "Land use planning, regarded by the White House and many on Capitol Hill as the most important environmental measure before the 93rd Congress, finally has cleared committee in the House, making it likely that a bill will be enacted this year." Id. at 183.146    ? Richard Corrigan, Interior Department Finesses HUD in Scramble Over Land use Program, National Journal, March 20, 1971, at 597.

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the land use issue by proposing a bill based on an early draft of S. 992.147 However, during the 92d

Congress, while the Senate was reconciling the provisions of Jackson's S. 632 with the

Administrations' S. 992, the House bill included provisions not contained in either of the Senate

bills, regarding public lands. It required federal agencies to develop land use plans for all federal

lands under their jurisdiction in an attempt to achieve maximum benefit of those lands for the

public.148 Environmental groups and the Nixon Administration opposed the Aspinall bill fearing

that it would lead to increased development of federal land devoted to conservation.149

When Aspinall was defeated in the democratic primary election in Colorado in September,

1972, Morris Udall, an environmentalist, took over for Aspinall as the chair of the House Interior

and Insular Affairs Subcommittee on Environment.150 None of the five bills considered by the

subcommittee during the 93rd Congress contained any provisions dealing with public lands.151

Hearings on the bills were held on May 7 and 8, 1973 but the Interior Committee did not report the

bill, H.R. 10294, until February 13, 1974.152

As reported, the House bill was very similar to the Senate's, although it differed from S. 268

147    ? Id. at 597.148    ? James A. Noone, Senate, House Differ On Approaches to Reform of Nation's Land Use Laws, National Journal, July 22, 1972, at 1194.149    ? Id. at 1192. "Although environmentalists and the Administration are enthusiastic about enactment of a bill covering private land use, they would sacrifice that goal if necessary to prevent Aspinall's public lands provisions from becoming law." Id. 150    ? Stanley Plotkin, Keep Out, The Struggle for Land Use Control 191 (University of California Press, 1987).151    ? James A. Noone, Congress Considers Bills Increasing State, Federal Role in Land Use Decisions, National Journal, May 5, 1973 at 637.152    ? H. Rep. No. 798, 93d Congress, 2d Session (1974).

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on a few provisions. As opposed to the Senate bill that gave the states five years to complete land

use plans, the House proposal gave only three. Additionally, while H.R. 10294 required the states

to assess the environmental impact of land development, it did not require the states to develop a

program to monitor and control, if necessary, that development.153

The prospect for enacting national land use legislation was seriously diminished on

February 26, 1974, when, much to the surprise of many, the 15 member House Rules Committee

voted to indefinitely postpone consideration of H.R. 10294.154 That vote came after the White

House withdrew its support for the bill, favoring instead a version proposed by Senator Steiger,

H.R. 11325, that did not provide any state oversight of local planning decisions, but allocated $200

million over five years to local governments.155

Udall was dismayed at the vote in the Rules Committee and quickly scheduled additional 153    ? James A. Noone, Land Use Planning Bill Headed for House Floor Vote, National Journal, February 2, 1974 at 183.154    ? James A. Noone, Land Use Bill Derailed After White House Ends Support, National Journal, March 9, 1974 at 368. "The Rules Committee vote caught environmentalists and others who supported the bill off guard. These groups include[d] the National Governors' Conference, the National League of Cities - U.S. Conference of Mayors and the National Association of Counties." Id. at 369.155    ? Id. at 368. Several theories have been advanced to explain why the White House withdrew its support for the national land use planning bill. Jackson and Udall charged that Nixon had changed his position to gain conservative support in an attempt to escape impeachment. Lyday, supra note 33, at 40. John Whitaker, a former Nixon Administration official wrote, "the President would not have been so naive as to think that by dropping land use, or even by taking a series of actions to please conservatives, he could influence votes on the impeachment issue. It is more likely that Nixon had never had any genuine commitment to land use but had gone along with Ehrlichman... . When Nixon heard charges from conservative lawmakers that the bill did in fact threaten constitutional rights, Ehrlichman was gone, and the President had no one to turn to whom he implicitly trusted on the matter." Whitaker, supra note 66, at 165-166.

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hearings on the Interior and Insular Affairs bill, H.R. 10294, to allow that bill's opponents to voice

their concerns.156 However, by the time the hearings had ended, it was clear that the support from

key interest groups, necessary to pass the legislation, was fading.157 Environmentalists, although

they did not oppose Udall's bill, did not take effective action to ensure its passage.158 Former allies,

including the forest product managers and other farm lobby groups withdrew their support or

publicly denounced the bill.159 Much of the erosion in support was caused by those opposed to the

bill, namely the Liberty Lobby, Chamber of Commerce and John Birch Society. These groups,

through newsletters and pamphlets, rallied public support against the proposal. Many Congressmen

received letters from their constituents alleging that the land use bill infringed on private property

rights and would lead to federal zoning.160

Despite the adversity, in May, 1974, Udall was successful in persuading the Rules

Committee to send the bill to the House floor under a rule calling for a vote on the Steiger bill

before consideration of the Committee proposal.161 On June 12th, the House met to vote on

156    ? Lyday, supra note 33, at 39.157    ? Plotkin, supra note 150, at 198.158    ? William K. Reilly, National Land Use Planning: A Legislative Agenda, in Land Use: Tough Choices In Today's World 14 (Soil Conservation Society of America, 1977).159    ? Whitaker, supra note 66, at 165.160    ? Lyday, supra note 33, at 38. See Malcolm Forbes Baldwin, The Federal Government's Role in The Management of Private Rural Land, in Michael J. Lacey, Ed., Government and Environmental Politics (Woodrow Wilson Center Press, 1991) at 199. "The Chamber of Commerce waged a vigorous, negative and alarmist lobbying campaign that raised fears in the House concerning federal zoning and taking without compensation." Id. 161    ? Lyday, supra note 33, at 39.

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whether to consider the land use reform legislation. The final tally was amazingly close; land use

reform was defeated by seven votes, 204 to 211.162 Thus, the legislation was defeated without

being discussed on the floor.

The economic recession that engulfed the nation during the next few years resulted in a

severe drop in any type of development. This, coupled with the Ford Administration's pledge of no

new spending programs, as well as the politically unpopular position of supporting anything that

might appear to limit jobs and growth, ended the call for land use law reform at the national level in

the United States.163

162    ? 120 C.R. Part 10 at H 5041-42.163    ? Whitaker, supra note 66, at 166.

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Conclusion

Twenty five years ago, Senator Jackson, in crafting NEPA and the National Land Use

Planning Act, offered the United States an alternative path to resource protection: planning.164 "It is

only in the past few years," Jackson wrote in 1971, "that the dangers of muddling through events

and establishing environmental policy by inaction and default have been very widely perceived.

Today, with the benefit of hindsight, it is easy to see that our governmental institutions have too

often reacted only to crisis situations. We always seem to be calculating the short-term

consequences of environmental mismanagement, but seldom the long-term consequences or the

alternatives open to future action."165

Through NEPA, federal agencies are required to look forward and anticipate the

environmental impacts of their programs and projects.166 It also requires cooperation among all 164    ? Although the planning aspects of LUPA are clear, Jackson also saw NEPA as a planning tool. In a Memorandum to the Members of the Senate Committee on Interior and Insular Affairs written three years after the passage of NEPA, Jackson wrote: "The public has been most responsive to NEPA. It is the awareness of an informed citizenry that has enabled us to make NEPA an effective and operational planning tool." Congressional Research Service, Environmental Policy Division, National Environmental Policy Act of 1969; An Analysis Of Proposed Legislative Modifications, 93d Congress, 1st Session, (1973) at (v).165    ? Henry M. Jackson, Environmental Policy and the Congress, 11 Natural Resource Journal 403, 405 (1971).166    ? NEPA applies to "every recommendation or report on proposals ... and other major federal actions significantly affecting the quality of the human environment." 42 U.S.C.A. §4332(2)(c) There is a "proposal" if the agency proposes to take action, itself or, if the agency issues a permit, approves a lease, grants a license or funds another party to act, which action may affect the environment. Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973). The term "major" has been interpreted by the courts as reinforcing the term "significant." Thus, actions which are deemed not to have a significant environmental impact will most likely not be considered a major action.

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federal agencies that may be involved in the project.167 Under NEPA, all direct, indirect and

cumulative environmental impacts of the action must be considered, as well as alternatives to the

proposal and possible means of mitigating adverse effects.168 NEPA's mandate, however, is

essentially procedural; it does not create any new substantive rights and does not require that a

federal agency make a particular decision in light of its investigation.169 The focus, instead, is on

making informed decisions.

Jackson saw the National Land Use Policy Act as an integral component in crafting this

nation's environmental policy.

To a very great extent, all environmental management decisions are intimately related to land use decisions. All environmental problems are outgrowths of land use patterns. The collective land use decisions which the nation makes in the future will dictate our success in environmental management; and the land use decisions of today will shape the environment future generations will enjoy.170

S. 3354 provided money to states and local governments to improve their land use planning

Cronin v. United States Department of Agriculture, 919 F.2d 439 (7th Cir. 1990). 167    ? In certain instances, a full Environmental Impact Statement may be required. Under these circumstances, the lead agency, as well as all other federal agencies that are involved in the project, including those who have a special expertise with respect to the environmental impact of the project are encouraged to participate in the process. 42 U.S.C.A. § 4332.168    ? Id.

169    ? Courts have been extremely deferential when reviewing of the adequacy of an EIS. See National Trust for Historic Preservation v. Dole, 828 F.2d 776 (D.C. Cir. 1987)(standard of review is whether the agency's action is arbitrary and capricious); Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (1980) (test is whether the agency made a good faith attempt to discuss the foreseeable environmental consequences.)170    ? Henry M. Jackson, Environmental Policy and the Congress, 11 Natural Resource Journal 403, 412 (1971).

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capabilities. After developing an inventory of natural resource and land use related information,

states would create a comprehensive plan, establishing sanctuaries, in advance of need, for

industrial, conservation and recreational areas.171 As drafted, the National Land Use Policy Act,

like NEPA, was a flexible tool, providing an integrating and cooperative framework for land use

decisionmaking. It encouraged states to think about the future, without mandating results.

But the United States, through its elected representatives, chose another path to

environmental protection: command and control legislation. Although successful in certain

respects, the environmental statutes each focus only on one specific topic: protecting either a

discrete segment of the environment172 or regulating the use of certain products.173 This may be

referred to as the "rifle shot approach" to environmental protection.174

171    ? Henry M. Jackson, Toward A National Land Use Policy, from "A View From Capitol Hill," by Senator Henry M. Jackson, a speech at a conference on Ecology and Politics in America's Environmental Crisis held at the Center of International Studies, Princeton University, reprinted in Grant McClellan, ed., Land Use In the United States, Exploitation or Conservation (1971).172    ? For example, see Clean Water Act, 33 U.S.C.A. §§ 1251 to 1387 (West, 1993); Clean Air Act, 42 U.S.C. §§ 7401 to 7671q (West, 1993); Endangered Species Act,16 U.S.C.A. §§ 1531 to 1544 (West, 1993).173    ? For example see Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.A. §§ 136 to 136y (West, 1993) (regulating the use of pesticides); Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6901 to 6992k (West, 1993) (regulating the use of hazardous materials); Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§ 9601 to 9675 (West, 1993) (imposing liability for clean up of hazardous waste sites).174    ? The phrase "rifle shot approach" was used by Richard Barth, President and CEO of Ciba, at a seminar on sustainable development, to describe the single subject approach of environmental regulation in this country. Richard Barth's Presentation, Transcript of Seminar on the Law of Sustainable Development In the United States, conducted at Pace University School of Law, March 2, 1995 (copy on file with the author).

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The major omission of the environmental legislation, however, is its failure to address the

issue of land use. For the past twenty five years, science has proven that the amount and type of

development on the land in a watershed has a tremendous impact on the viability of that watershed

as an ecosystem. Additionally, increases in air pollution and decreases in open space are directly

attributable to sprawling development patterns. This nation, however, has chosen to ignore the land

use connection.

What has been learned in the past quarter century must guide us into the future. The quiet

revolution in land use has demonstrated that states with enough initiative can create comprehensive

plans that preserve the environment, foster economic growth and encourage social equity. Since the

1970s, Hawaii, Vermont, Maine, Florida, Georgia, Oregon, New Jersey, Washington, Rhode Island

and Maryland have engaged in comprehensive land use planning.175 While these programs vary

greatly in their level of "comprehensiveness," as well as in the requirements placed on local

governments, they all are founded on a state plan. Many other states have engaged in

comprehensive regional planning including California, New York, Minnesota, Massachusetts and

Michigan, among others.

In addition, through technological advances in Geographic Information Systems, states are

able to accumulate and process vast quantities of land related information.176 This data can be

175    ? For a review of the actions in these states during the last twenty five years, see David Callies, The Quiet Revolution Revisited: A Quarter Century of Progress, 26 Urb. Law. 197 (1994).176     ? Since all data about people, places and things may be referenced

to their geographic locations, relating such information to a common base is the essential function of a GIS, particularly as it relates to ... land use planning. GIS is the electronic equivalent of manually overlaying data transparencies on maps of a municipality or a particular site. With a GIS, the information is stored digitally in a computer instead of on

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integrated, through a computer using GIS software, thus enabling local governments, state agencies

and the private sector to create a visual image of the natural and man made conditions of the land.

Through GIS technology, comprehensive land use planning is simpler, more cost efficient and

faster than ever before. Currently, over 90% of all states nationwide are utilizing geographic

information systems.177

Recently, the focus of the world has been turned to an idea expressed by Senator Jackson,

contained in both NEPA and the Land Use Planning Act, "sustainable development." The phrase

recognizes the interrelationship of our natural and social systems and the concept acknowledges the

need to accommodate environmental protection, economic development and social equity. Recent

writings on how to achieve "sustainability" advocate a methodology similar to that expressed by

Senator Jackson in the 1970s. J. William Futrell, a well known environmentalist and author writes:

[T]he transition to a law of sustainable development will best be made by organizing the reform agenda around human activity. We should reexamine our property rights principles, the tax code and banking institutions and conduct a sector by sector revision of the laws governing agriculture, energy, transportation, and manufacturing. The most important step to establish sustainability ... [is] tailoring law more closely to the patterns of human behavior. ... It will make better use of the tools of environmental governance and ease the burden of command and control regulation.178

manually prepared overlays, that are tedious to develop and static. Since both the base map and data layers are digitized and referenced to the same geographical coordinates, they can be integrated electronically. Thus the preparation, supplementation and updating of land use plans is rendered much more efficient, cost-effective and useful than the existing manual systems.

Christine Hilla, GIS and Local Governments: Making the Land Use Connection, Land Use Law Reporter, Pace University School of Law, Series 3, Number 2, (November, 1994). 177    ? Id.

178    ? J. William Futrell, Law of Sustainable Development, Environmental Forum, March/April (1994) at 16.

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Twenty five years ago, Senator Jackson challenged the nation to move beyond "the crisis of

the moment" and create sustainable patterns of development. He proposed a tool to achieve that

end, comprehensive land use planning. Jackson understood then what many recognize today:

environmental protection can not be achieved through a policy of "no growth," because this

approach sacrifices needed economic development and social equity. Jackson advocated, instead,

an integrated decisionmaking process wherein the needs of all constituencies could be

accommodated.179 "Resolving these problems for human ends," he wrote "to improve the quality of

our life - is, in major respects, the most challenging task facing the legal profession in the last one-

third of the century." Indeed, that challenge still lies ahead. It is clear that the time has come to

seize the vision offered by Senator Jackson and create a framework for cooperative, coordinated

and comprehensive land use planning.

179     ? By ignoring the interests of millions of Americans for whom job security and the prospect of the good life are decent aspirations, [the no growth advocates] are turning the fight for environmental quality into a confrontation between the "haves" and the "have nots." The poor people of this country want good jobs and decent housing. They aspire to the material goods and comforts enjoyed as a matter of course by more affluent Americans. ... The solution to the [nation's environmental ills] is not to halt economic growth or the development of science and technology, but rather it is to develop responsible programs and policies to guide their use. Henry M. Jackson, Environmental Policy and the Congress, 11 Natural Resource Journal 403, 415 (1971).