Ashira Ostrow’s article is featured in the January/February 2012 issue of Probate and Property.
Federalism and Property Law. Although regulation of private property historically has been left primarily to local governments, a recent trend recognizes a larger state and federal role. One of the reasons for this has been the rise of environmental, technological, and other national concerns that are difficult to deal with at the local level. Prof. Ashira Pelman Ostrow examines this trend in Process Preemption in Federal Siting Regimes, 48 Harv. J. on Legis. 289 (2011). Prof. Ostrow recognizes the inherent local-versus-national tensions when it comes to siting decisions for things such as wind turbines that may serve the national interest but that are locally undesirable. A major challenge to effective siting decisions is that neither complete delegation to local governments nor total federal preemption will produce balanced results. Prof. Ostrow offers an approach that she terms “process preemption.” The approach draws on the model of the 1996 Telecommunications Act, 47 U.S.C. § 332, which establishes a federal framework for the siting of wireless communication towers. Prof. Ostrow attributes the success of the act to its careful balancing between the national interest in having wireless networks and the importance of local autonomy in specific siting decisions. A process preemption approach to other types of siting decisions, such as wind turbines, can likewise succeed if the federal constraints on local decision making are subject to a set of procedural requirements, including interjurisdictional cooperation and public participation, to increase the legitimacy of the process. An important contribution to the growing literature on federalism and property law, Prof. Ostrow’s article–co-winner of the 2010 American Association of Law Schools’ Scholarly Paper Competition–provides an excellent analysis of the topic and a compelling argument for a “process preemption” regime.
Keeping Current Property, Prob. & Prop., January/February 2012, at 35, 38