Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

Some public choice-influenced scholars claim that voluntary interlocal bargaining can effectively address city-suburb wealth disparities. On this view, economic interdependence encourages (comparatively) affluent suburbs to enter into “burden-sharing” agreements with cities, diminishing the need for so-called regional governments. This perspective holds that Virginia’s distinctive system of city-county separation is uniquely well-suited to the formation of such agreements. Interlocal burden sharing is rare in Virginia, however, and proponents’ example of such burden sharing—a tax base sharing scheme between Charlottesville and Albemarle County—is deficient in several respects.

This Note thus challenges the invocation of Virginia as a model to which other states might aspire. The paucity of burden sharing and the deficiencies of existing agreements stem from two weaknesses in the bargaining thesis. First, the conditions necessary to bargaining are frequently absent. For instance, Virginia’s annexation moratorium eviscerates cities’ bargaining power against counties. Second, and more fundamentally, the bargaining thesis neglects structural disincentives to bargaining resulting from Virginia’s system.

The weaknesses of the bargaining thesis have important repercussions for addressing interlocal inequities. Although some call for regional governments to cure disparities, such reforms are substantively undesirable and politically unfeasible. Similarly, Virginia’s now-dormant annexation system was problematic. Although annexation enhanced cities’ bargaining power, it also produced bitter conflicts. The annexation system also failed to promote significant burden sharing. Several reforms would realign suburban counties’ bargaining incentives, providing a means by which existing governmental entities can address metropolitan disparities. 

The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act

The Endangered Species Act (ESA), first passed in 1973, is possibly the most wide-ranging of the protective environmental statutes. Grounded in Congress’s ability to regulate interstate commerce, it purports to protect biodiversity by keeping animal species from going extinct. Although there have been numerous challenges to the ESA on the basis that it goes beyond Congress’s power under the Commerce Clause, all of these were narrowly defeated in the Courts of Appeals. With the recent appointments to the Supreme Court, however, the Act remains vulnerable. Shifting the Act to focus on ecosystems, rather than on individual species, could insulate it from additional federalism challenges. Ecosystems are more directly tied into interstate commerce and the economy than individual species through a number of factors, including “ecosystem services.” Since biodiversity is important to maintaining ecosystem health, Congress could still protect endangered species as a part of ecosystems while maintaining a link to interstate commerce. Although this could lead to some changes in scope to the Act, it remains the most faithful way to keep Congress’s intention of protecting biodiversity, but still avoiding constitutional concerns.