William & Mary Environmental Law and Policy Review
Breaking up with Dillion: A Practical Call for Virginia State & Local Government Law Reform
States’ long-standing allegiance to the Dillon Rule stems from the theory that it prevents localities from passing unequal and corrupt laws. However, states with strict adherence to the Dillon Rule have stifled localities from addressing their own issues and priorities. Though the debates surrounding the Dillon Rule’s strengths and weaknesses have existed since its inception, the burdensome effects on a locality’s ability to serve and protect its citizens are constantly evolving. In particular, localities in Dillon Rule states have been unable to enact laws that directly address environmental issues, citing the Dillon Rule as their main obstacle.
Although lobbying Virginia lawmakers for change is possible, challenges associated with the lobbying process have kept localities within the Dillon Rule’s restrictive framework. In addition to facing resource-intensive lobbying efforts, localities are hesitant to enact boundary-pushing legislation due to judicial unpredictability. Ultimately, the Dillon Rule disincentivizes localities from seeking innovative solutions that confront some of our generation’s greatest environmental challenges.
This Note is not the first call for Virginia’s General Assembly to consider the adverse effects of this antiquated and ineffective rule. The Commonwealth first contemplated a transition from the Dillon Rule in 1969. The state’s legislators drafted and proposed a new provision to the Virginia Constitution, stating that “[a] charter county or a city may exercise any power or perform any function which is not denied to it by this [C]onstitution, by its charter[,] or by laws enacted by the General Assembly.” Although similar provisions were included in other states’ constitutions, the Virginia legislature opted against it. Recently, there have been calls for the reconsideration of this rule in economic, social justice, and environmental contexts.
As discussed later in this Note, there is a growing consensus that localities are better equipped to address local issues than the state legislature. This argument is championed and frequently cited by those who appreciate federalism’s capacity to allow states to create their own environmental laws and policies. In a similar fashion, those closer to an environmental issue, such as representatives of a coastal community grappling with sea level rise, will presumably understand its particular challenges more intimately than any state government official.
A number of recent environmental efforts have largely failed due to Virginia’s outdated policymaking structure. In Alexandria, for example, the locality’s inability to ban plastic bags and straws has sparked heated debates. All in all, localities routinely point to the Dillon Rule to justify their environmental shortcomings.
Mixed Rule and Home Rule states have surpassed Virginia in the implementation of progressive environmental efforts in a number of ways. Some examples include powerful regional initiatives, such as the South Florida Regional Climate Change Compact and county-led environmental legislation, such as Washtenaw County, Michigan’s net-zero emissions efforts in 2018. Moreover, this Note will discuss recent full or partial transitions in states such as West Virginia, Nevada, and Illinois.
This Note will also contemplate the numerous benefits and challenges that accompany different transition strategies for Virginia. These transition options include opting for full Home Rule status, implementing public health or environmental exceptions, or allowing Home Rule functionality to municipalities based on desire, size, or through the authorization of home rule charters. All in all, this Note will highlight the reasons why a transition is advisable and why it is a crucial moment for the Virginia legislature to act.