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Harvard Journal on Legislation

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Land use regulation has historically been a function of local governments. Congress left land use to the states; the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by an interjurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. Accordingly, Congress has experimented with a variety of policies aimed at compelling local governments to site nationally relevant facilities. Federal siting regimes have ranged from federal delegation of regulatory authority to the states, on one end of the spectrum, to unitary federal preemption of state control, vesting exclusive siting authority in a federal administrative agency, on the other.

This Article advances a more balanced approach to facilities siting termed "Process Preemption." In a Process Preemption regime, Congress imposes federal constraints on the siting process, but leaves primary decisionmaking power in the hands of local regulators. This Article argues that Process Preemption has the potential to further the effectiveness of federal land use policies because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use priorities, and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance of controversial siting decisions.