By Jonathan Rosenbloom
State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges that cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this Article investigates whether municipal collaborations can encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. This Article draws on the late 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on geographically situated, individual private sector collaborations, this Article envisions public sector municipal collaborations as forming around common challenges, regardless of geographic location. This Article proposes that non-place based municipal collaborations, the theoretical framework of which is not explored in the literature, allow for a reconceptualization of existing local government authority. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.
The objective of this Article is not to suggest one local government strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing how local governments confront multi-jurisdictional issues, this Article asserts that some issues are best addressed through collaboration among local governments.
Cite as: Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 Harv. Envtl. L. Rev. 445 (2012).