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Environmental, Natural Resources, & Energy Law Blog

Local Government and Environmental Policy - Shanna McCormack

August 19, 2020

Local Government and Environmental Policy - Shanna McCormack

Thesis

Local environmental policy at both the city and county levels can have a large impact on overall environmental action at the state level and beyond, particularly through land use and waste management decisions.

I. Importance of Local Environmental Policies

 

Several important environmental issues are controlled at the local level such as land use and zoning, waste management and recycling, and protecting local natural resources such as critical watersheds and habitats.1 Because environmental conditions are diverse and vary by city and county, local approaches can be instrumental in governing environmental law in different communities.2

Municipal solid waste landfills are the third-largest source of human-related methane emissions in the United States and as of 2016, are responsible for 16% of methane emissions.3 Municipal waste includes items such as product packaging, yard waste, clothing, food, paper, and electronics.4 Once this waste is collected, it is either recycled, composted, burnt for energy recovery, or disposed of in a landfill.5 From 1960 to 2015, municipal solid waste generated in the United States has risen by 198% and per capita generation increased by 71% from 1960 to 1990 but has since leveled off.6 Methane is a powerful greenhouse gas and a significant contributor to climate change.7 Because of the methane’s impacts on Earth’s temperature and the role of municipal waste in its production, local environmental regulations on how municipal waste is dealt with can play a role in reducing greenhouse gas emissions.

Policies by the city of Overland Park and Johnson County, Kansas are an example of local environmental policy in action. Overland Park is one of the largest cities in the state of Kansas, second only to Wichita.8 As a Kansas City suburb of almost 200,000 residents, its environmental initiatives can have an impact on many lives and businesses as well as on surrounding counties and state environmental initiatives.9 The city is also located within Johnson County, the most heavily populated county in the state.10

In addition to waste management, local governments play an instrumental role in land use planning. Decisions about private land use are largely a state power, and in many states, this power is delegated to local governments.11 In fact, the majority of zoning and land use planning happens at a local level.12 This makes local land use decisions in the aggregate an essential component to overall state environmental impacts. Additionally, today many zoning ordinances are often used to protect the environment.13

II. Legal Issues and Local Jurisdictions

 

Federal and State law often preempt local environmental law and policymaking decisions.14 Because of this, local governments may only regulate areas of environmental policy that have not been preempted. However, the areas of environmental policy left to local government are not insubstantial. Within the city of Overland Park alone there are numerous environmental initiatives and policies within the scope of local law.

  One area of environmental policy where a lack of state and federal law heavily impacts local environmental policymaking is plastics recycling. Over the past 40 years, the oil and gas industry has pushed recycling as a solution for plastic while privately recognizing that it doubted recycling plastic products would ever be a viable means for reuse.15 Facing initiatives to ban and limit the use of plastic, the industry promoted recycling as the solution.16 Plastic production is set to triple by 2050 and the industry still holds that recycling is the answer, even as it now produces plastics that are more complex and difficult to sort and often cannot be recycled at all.17 Additionally, oil prices are at historic lows which makes recycled plastic more expensive than new plastic.18 This leaves local governments to find ways to dispose of the plastic when it cannot be recycled.

Overland Park, Kansas

As a part of its government, the city of Overland Park has boards, commissions, and councils. One of which is the Environmental Advisory Council (EAC) made up of city residents appointed to 3-year terms.19 The city of Overland Park webpage covering the EAC provides a short description of the council which states that the council, “studies environmental issues while supporting and promoting new and existing programs and developing educational programs for the public.”20 The webpage also lists a meeting time and place and a staff liaison contact for the city.21 The Council meets on the second Thursday of every month in a city-owned conference building that is connected to the Overland Park police station.22

The Environmental Advisory Council (EAC) analyzes and recommends environmental actions to city council members that the city can take to increase its sustainability. The mayor and the twelve city council members are the city’s governing body.23 Together, they approve codes and ordinances, identify projects and services for the city to provide, and set state and federal legislative priorities for the city Overland Park.24 Overall, there are twelve departments of city staff and all report to the city manager’s office.25

In addition to Overland Park’s EAC informing council of suggested environmental improvements, the city’s website outlines a few of the environmentally-related programs the city provides.26 These programs include a stormwater cost share program, a city-owned drop off recycling center, and information about disposal of household hazardous waste. 27,28 There are many informational pages on the website with guidelines for energy conservation, landscaping with native plants, how to dispose of pool water, and information about energy consumption at city facilities.29,30

At the county level, Johnson County has environmental initiatives as well. Two of the most comprehensive are the greenhouse gas emissions plan and the solid waste management plan. The most recent greenhouse gas emissions report is from 2013 which reflects on the county’s emissions and their sources as well as sets out a plan for how the county will act to reduce its emissions to decrease its contribution to climate change.31 The primary goal of the plan is to reduce greenhouse gas emissions within the county by 80% by the year 2050, below a 2005 baseline.32 The report also mentions that within the county, Overland Park is the largest contributor of greenhouse gas emissions.33 The Johnson County solid waste management plan must be updated every five years and the most recent update is from 2019.34 The plan outlines types of waste being collected, the proportion coming from each city in the county, population, employment, and housing projections for the future, and a review of the current waste management facilities.35

III. Practicalities of Local Lawmaking—Overland Park, Kansas

 

In order to experience the practicalities of local lawmaking firsthand, I attended the February and the March 2020 Environmental Advisory Council meetings.36 I was able to see the environmental initiatives the city’s advisory council is currently implementing and those it is examining for the future, as well as experience the level of public involvement both allowed and encouraged by the council by citizens attending the meetings.

I. February 2020 Meeting

 

The February meeting included the annual election of officers for the council.37 One of the council members told me that because of this, there were more people at the meeting than usual. Of the twenty-five or so people in attendance, twelve to fifteen were council members while the rest were from local nonprofits or were interested citizens. The meeting lasted two hours and in addition to the election of officers, it included presentation updates on current projects by council members, the creation of a 2020 work plan, and crafting a zero-waste policy statement for EAC activities.38 The main projects for 2020 addressed during the February meeting included a pilot project to add recycling to six apartment facilities (currently, apartments in the city are not required to provide recycling), an Overland Park farmers’ market policy that would prevent plastic bags from being distributed by vendors, and an initiative for increasing the energy requirements of city buildings.39

Currently, the Kansas legislature is considering a bill that would prevent cities in Kansas from banning single-use plastic bags.40 The bill would prohibit local governments from, “imposing any tax, fee or outright ban on paper or plastic single-use bags and plastic straws.” The bill is a reaction to a Wichita task force formed by the Wichita mayor at the request of environmental activists to determine how to best decrease single-use plastics within the city.41 Kansas’ GOP controlled House Committee on Commerce, Labor, and Economic Development says it is worried about the impact of the ban on businesses.42

While the Overland Park farmers’ market plastic bag policy would not be affected because it would be a farmers’ market policy and not a ban, tax, or fee for for plastic bags, this is one example of how state and local law can easily come into conflict over environmental issues, and how local environmental laws can be preempted by state law. One of the primary reasons that grocers, restaurants, and convenience stores have pushed the Kansas legislature to prevent a bag ban or charge for bags is because they are worried about inconsistent rules across the state.43 This is one of the challenges of local government. If cities have different policy approaches, this can create concerns by those impacted by the rule, especially those who operate in multiple cities.

After the meeting concluded, I met the two city council representatives for the ward in Overland Park where I reside. The city is divided into six wards with two representatives per ward; I am located in ward one where the representatives are Logan Heley and Holly Grummert.44 During our conversation, I asked my representatives how to become a citizen member of the EAC because although anyone can attend the meetings and comment, you must be a member of the council to vote and to add issues to the agenda. They told me to forward them my resume and a statement of interest and that they would send it to the Mayor who makes the decisions on appointing citizens to councils.

II. March 2020 Meeting

 

The March meeting was shorter than the previous month and the crowd was smaller. There were fewer EAC members present—just enough to have a quorum to vote, and only three non-member citizens attended. Only one city council representative was in attendance. The March meeting included a discussion of the city’s Spring Extravaganza, a drive-through recycling event where citizens can drop off hard to recycle items for recycling. It is the largest single day recycling event in the Midwest and between 750 and 850 cars visit the drop off drive through. The council also discussed a stream cleaning event in April that already has over 200 volunteers signed up to participate.

The third item that the council discussed was the adoption of the zero-waste policy statement drafted for the February meeting. The policy stated, “The Overland Park Environmental Advisory Council (EAC) resolves to institute Zero Waste guidelines for all EAC-sponsored events and meetings and to encourage said guidelines for all events and meetings the EAC participates in with the goal being no trash will be sent to landfills, incinerators, or the ocean.” The council discussed whether to make any edits to the policy. In the interest of public participation, I raised my hand to make a comment. The meeting handout expressly states that the council allows guests to comment and ask questions. Cassandra Ford, the Chair of the EAC, pointed to me and asked for my comment or question. I suggested that the last portion of the policy statement be changed from “ocean” to “water bodies” to be more inclusive of the waters in Kansas where trash could easily be deposited. I got a thumbs up from EAC member in front of me and after about thirty seconds of considering the edit, the policy statement was passed with “water bodies” instead of “ocean.” The EAC zero waste policy statement was adopted by the council. However, the EAC is an advisory council and does not have any law-making power from the city so it is simply a council goal and cannot be enforced.45

The last and arguably most impactful item on the meeting agenda was to discuss whether to recommend that the city of Overland Park create a full-time sustainability manager position in the city government. The discussion was about how to go about recommending such a position to the city council members for adoption. It involved an exploration of how to present the idea in a way that would make it most likely to be considered by councilmembers. EAC members agreed that even if the city council agrees to create the position, it could be as far as two years in the future.

IV. Effective Local Environmental Law and Policy

 

While public involvement in EAC meetings is welcome, discussion is cabined by the initiatives chosen by the council. In order to determine priority of initiatives, you need to be on the council to vote. That being said, the council is willing to consider environmental initiatives from citizens, they just may not be able to add it to the meeting at the time it is suggested.

The EAC is made up of citizen volunteers and the recommendations of the council are only as useful as the expertise of and research done by its members. There are no special requirements to be appointed to the council, which can be both a negative as well as a benefit. It allows the mayor and city council to have greater participation from citizens and a larger selection of potential members, but it also allows people to be appointed who may have little relevant background. For example, to determine the priorities of the 2020 EAC work plan, all potential projects were listed and members simply ranked the ones that they liked the best and those with the most votes were placed at the top of the list for the work plan. There was no feasibility analysis or environmental impacts consideration of the projects chosen. The work for the year was focused on member preferences instead of viability of the selections as well as consideration of which would have the greatest benefit. A more expert-based council would likely want to include these factors in the decisionmaking process.

As a result of the initiative selection process being based solely on member preference, the council focuses heavily on single-stream recycling initiatives even though only a small percentage of single-stream recycling collected is actually diverted from landfills.46 In many instances, it is simply cost prohibitive to recycle materials such as mixed paper and plastics.47 Of the materials sent for recycling, aluminum and glass are two of the most likely to be recycled. In 2017, the total recycling rate for all aluminum containers and packaging was 32.8%.48 For that same year, the glass recycling rate was 26.6%.49 The rate for plastics was 8.4%.50 One of the most impactful changes that the council should adopt is an initiative ranking process that takes into account the environmental benefits of taking a particular action.

For example, the city does not provide curbside glass recycling. In fact, the possibility of curbside glass recycling was listed at the bottom of the “topics for future consideration” page. Under that heading, the council also included: reducing single-use plastics, electric vehicle initiatives, air quality, water quality, composting at city facilities, reducing construction and demolition waste, and clothing recycling. The top priorities for 2020 are the Spring 2020 recycling extravaganza, adding a sustainability manger position, route optimization for solid waste pickup, encouraging the design of walkable neighborhoods, and a spring stream cleanup among a few others.51 While the initiatives chosen by the council for priority in 2020 are important, it may not be the case that they are the most environmentally beneficial. An exploration of the various impacts of the initiatives before selecting those that are given priority would be an incredibly useful way to increase the efficacy of the EAC and of Overland Park’s sustainability goals overall.

 

1 John R. Nolan, In Praise of Parochialism: The Advent of Local Environmental Law. 23 Pace Envtl. L. Rev. 705, 752 (2006).

2 Id. at 752-754.

3 Wastes Report on the Environment, Environmental Protection Agency, https://www.epa.gov/report-environment/wastes#effects (last visited Apr. 10, 2020).

4 Quantity of Municipal Solid Waste Generated and Managed, Environmental Protection Agency, https://cfpub.epa.gov/roe/indicator.cfm?i=53 (last visited Apr. 10, 2020).

5 Id.

6 Id.

7 Greenhouse Gas Emissions Methane Emissions, Env. Protection Agency, (April 10, 2020). https://www.epa.gov/ghgemissions/overview-greenhouse-gases#methane (last visited Apr. 10, 2020).

8 Kansas Cities by Population, Demographics by Cubit, https://www.kansas-demographics.com/cities_by_population (last visited Apr. 10, 2020).

9 Overland Park, Kansas, The United States Census Bureau (July 1, 2018) https://www.census.gov/quickfacts/overlandparkcitykansas (last visited Apr. 10, 2020).

10 Kansas Cities by Population, Demographics by Cubit, https://www.kansas-demographics.com/cities_by_population (last visited Apr. 10, 2020).

11 John R. Nolan, In Praise of Parochialism: The Advent of Local Environmental Law. 23 Pace Envtl. L. Rev. 705, 706 (2006).

12 Vanessa Brown Calder, Zoning, Land​Use Planning, and Housing Affordability, CATO Institute (Oct. 18, 2017) https://www.cato.org/publications/policy-analysis/zoning-land-use-planning-housing-affordability (last visited Apr. 10, 2020).

13 Id.

14 Preemption Doctrine in the Environmental Context, University of Pennsylvania Law Review, 208-213 (discussing federal environmental law and preemption by federal environmental statutes generally). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjS09qKi4rpAhULVc0KHVcgCE4QFjAAegQIAxAB&url=http%3A%2F%2Fscholarship.law.upenn.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D4821%26context%3Dpenn_law_review&usg=AOvVaw1GWjsqXxLIShxTn5lh1793

15 Laura Sullivan, Plastic Wars: Industry Spent Millions Selling Recycling — To Sell More Plastic, NPR, https://www.npr.org/2020/03/31/822597631/plastic-wars-three-takeaways-from-the-fight-over-the-future-of-plastics?fbclid=IwAR3XvyDuqovFjwXMX2NF9Ez6xYkDtsj-aTnqJH4H-c12DtayTFZ1cuiJdZk (last visited Apr. 10, 2020).

16 Id.

17 Id.

18 Id.

19 Boards, Commissions, and Committees, Overland Park, Kansas https://www.opkansas.org/city-government/boards-commissions/ (last visited Apr. 10, 2020).

20 Environmental Advisory Council, Overland Park, Kansas https://www.opkansas.org/city-government/boards-commissions/environmental-advisory-council/ (last visited Apr. 10, 2020).

21 Id.

22 Id.

23 City Government, Overland Park, Kansas https://www.opkansas.org/city-government/ (last visited Apr. 10, 2020).

Id.

24 Id.

25 Id.

26 City Services, Overland Park, Kansas https://www.opkansas.org/city-services/ (last visited Apr. 10, 2020).

27 Protecting Overland Park’s Environment, Overland Park, Kansas https://www.opkansas.org/city-services/trees-environment/sustainability/ (last visited Apr. 10, 2020).

28 Household Hazardous Waste, Overland Park, Kansas https://www.opkansas.org/city-services/trash-recycling/household-hazardous-waste/ (last visited Apr. 10, 2020).

29 Protecting Overland Park’s Environment, Overland Park, Kansas https://www.opkansas.org/city-services/trees-environment/sustainability/ (last visited Apr. 10, 2020).

30 Id.

31 2013 Greenhouse Gas Inventory Update, Johnson County, Kansas (October 2014) https://www.jocogov.org/department/health-and-environment/greenhouse-gas-inventory-update

32 Id. at 1.

33Id. at 21.; This may be because it is the largest city within the county.

34 Solid Waste Management Plan 2019 Update, Johnson County Health & Environment, (July 29, 2019) ES-1.

35 Id.

36 The April 2020 Environmental Advisory Council meeting was cancelled due to COVID19.

37 Overland Park Environmental Advisory Council, Meeting Agenda (Feb. 13, 2020).

38 Id.

39 Id.

40 Chance Swaim and Nicole Asbury, Kansas bill would stop Wichita from banning plastic bags, The Wichita Eagle, (Feb. 21, 2020) https://www.kansas.com/news/politics-government/article240519541.html (last visited Apr. 10, 2020).

41 Id.

42 Id.

43 Id.

44 City Council, Overland Park, Kansas https://www.opkansas.org/city-government/city-council-committees/city-council/ (last visited Apr. 10, 2020).

45 Overland Park Meeting, Environmental Advisory Council (February 13, 2020).

46 Edward Humes, The US Recycling System Is Garbage, Sierra (June 26, 2019) https://www.sierraclub.org/sierra/2019-4-july-august/feature/us-recycling-system-garbage (last visited Apr. 10, 2020).

47 Id.

48 Aluminum: Material-Specific Data, Environmental Protection Agency, https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/aluminum-material-specific-data (last visited Apr. 10, 2020).

49 Glass: Material-Specific Data, Environmental Protection Agency, https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/glass-material-specific-data (last visited Apr. 10, 2020).

50 Plastics: Material-Specific Data, Environmental Protection Agency, https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/plastics-material-specific-data (last visited Apr. 10, 2020).

51 Overland Park Environmental Advisory Council, Meeting Agenda (March 12, 2020).

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