Green New Appeal?: The Due Process Clause as a Defense Against State Preemption of Municipal Environmental Laws

Abstract

As action to combat climate change stalls on the federal level, cities and towns have taken the lead in passing environmentally friendly legislation. Nevertheless, as political polarization continues, states have increasingly employed preemption ceilings to curb municipal legislative efforts. Many state constitutions are structured in a manner that explicitly enable states to preempt local legislation. Because municipalities historically had no power to pass legislation without express approval from their state of incorporation, and despite their increased authority under home rule, municipalities have had no way to combat preemptive laws. In 2013, in Robinson Township v. Commonwealth, Justice Baer of the Pennsylvania Supreme Court, writing in concurrence, offered one possible solution: the Due Process Clause. This Note argues that municipalities, advancing the argument of Justice Baer’s concurrence, can use the Due Process Clause to overcome state preemption in environmental law.