Governance, Preemption, and the Importance of Protecting Local Representation with Nestor Davidson

Welcome to the 2026 Trend Talk podcast, a multipart miniseries from the American Planning Association in partnership with the Lincoln Institute of Land Policy. This series focuses on new and emerging trends and their potential impacts on our communities and the practice of planning. My name is Joe DeAngelis, research manager at the American Planning Association, and your host. Today, I'm joined by Nestor Davidson, who serves as the Emma Bloomberg Professor of Real Estate at the Harvard Graduate School of Design. Nestor's teaching and scholarship are focused on regulatory frameworks for real estate markets, as well as broader legal determinants of the built environment. Professor Davidson has also been a pioneer in the field of urban law, exploring the role of the legal system in urban governance and city life, including, and notably for today's discussion, critical fault lines in the legal relationship between states and local governments, especially on the subject of preemption, which is what we're going to be talking about today.

Before we jump into it, Nestor, how are you doing today?

I'm doing great. Great to see you, Joe.

Yeah, you as well. I think this should be a good and pertinent discussion, given a lot that's in the news right now. And again, this is a foresighted Trend Report–focused discussion. So we want this to be as future-focused as possible. But preemption is such a relevant thing right now. So let's start with the basics.

We do largely speak to an audience of planners, right? APA membership, planners, planners across the U.S. and across the world. There's probably a solid understanding of the concept of preemption already. But just for the sake of introductions here, can you walk us through a general description of preemption and maybe give us a little bit of a historical grounding in how it's developed and changed over time?

Terrific. I think it's important to start with a baseline and understand that preemption is just an inherent feature of any time you have multiple levels of government. It happens in the United States, it happens in Europe, it happens all over the world. If you have a national government, and you have a state government, and you have a local government, there needs to be some system to work out how you manage conflicts in authority.

In the United States, we have federal preemption of states and local government. We have state preemption of local government. And by and large, historically, preemption was a mechanical tool that the legal system developed, whether it was express preemption, sometimes a higher level of government will say to a lower level of government, hey, this is an area of policy that we think should be uniform, at the national level, at the state level, and we're going to preempt, we're going to take this area of policy. Sometimes it's just implicit. Sometimes there are two different regulatory regimes, and courts have to figure out how to make them mesh.

But I would say just in terms of the arc, and we'll talk about this a little bit more when we get into what's been happening in the last few years, I think preemption, like so many other areas of policy and law, has gotten a little bit wrapped up in politics and polarization. I think really over the last 10 to 15 years, there have been instances where preemption, especially at the state level, and I think we're beginning to see this now at the federal level, is used less as a neutral tool just to allocate authority up and down levels of governance and up and down scales of problems, and more to express policy differences. And I think that's a little bit different. And we can talk about, and I hope we will, the valence of that in the planning and land use and housing context, because I think it's interestingly complex in that context. 

Definitely. I think that the area that we're seeing this a lot now and in recent years is around housing and zoning, that discussion. That's something that is very much top of mind for planners. As we're diving into this, let's maybe think about, let's look at the states and local governments first.

For planners, it's pretty much impossible to ignore the growing role of states that have sought to preempt local decision-making and authority on a whole host of issues. I don't want to just say that it's about just housing and zoning. There's all sorts of things out there that are maybe related to planning in a more tertiary way, but they aren't as applicable in this housing and zoning frame, which is very much like a bread-and-butter type planning thing. That's a lot of local planning work revolves around your zoning code and housing policies and all that stuff. Those are the big ones, but there are others.

Can you discuss the emergence of this type of dynamic? This state-local government preemption over the last few years, how that's maybe different, and especially how you might see that dynamic evolving and changing going into the future.

I think it's useful to take a step back. When I teach land use law, we can go all the way back to the 19th century and state delegation of authority to local governments. You can think about the Standard State Zoning Enabling Act. We'll talk about the federal role here. But I think you're right that for most of the last century, we have thought of, and as a practical matter, we have experienced a world where most land use decisions play out at the local level. But periodically, we get moments where there's a reconfiguration, or at least moves to reconfigure that allocation of authority. And so I'm sure planners are very familiar with the so-called Quiet Revolution of the '60s and '70s, the David Callies and Fred Bosselman article, a report from 1971, looking at things like the Massachusetts Anti-Snob Act, 40B, which is still a very active regime in Massachusetts, looking at the 1967 California Housing Elements Law, which California didn't really much enforce until recently, and we can talk about that in a minute. We can talk about Mount Laurel, 1975, and the regime in New Jersey that came after that. And so there was a moment — it's going to age me, but it's at my age — but a generation ago, let us say, perhaps maybe two generations ago, where states began as part of the growing awareness, mostly around the environment, but to a certain extent around civil rights, to intervene more at the local level.

But I think it's fair to say that moment faded to a certain extent over several decades and faded into the background. And we reverted in most of the country, we can look at exceptions, Oregon and places like that, but in most of the country, the core model that goes back to the 1920s of state delegation to local governments still holds, and largely still holds today. But I think it's fair to say that particularly the growing awareness of the housing crisis and a growing awareness of the connection between zoning and housing supply has shifted the political economy at the state level and has led to calls that I think in many ways are really interesting from a normal partisan lens. I think it's one of those areas where you get interesting bedfellows the more you go local, and the rise of the YIMBY movement has changed the politics in a lot of states.

And so you have these really interesting political conversations that are now translating into law, and states are coming back to intervening. And the perception is that cities and really suburbs in many ways, local governments, are too much of a barrier to housing production, to thinking regionally about housing markets. And I think that has sparked an increasing interest at the state level.

Let me just, as a way of introduction to what this trend looks like, and then happy to go into depth on any of these examples. But as I think about this, I think there are three types of state intervention or preemption in this realm, and none of them are new. But I think we're seeing greater rigor, greater intervention, and we can talk about the costs and benefits and how the dynamic is beginning to play out on the ground, but it's really at a very early stage.

So I think the first example, and again, this really goes back to California in the 1960s, but states are beginning to either come in with new state-level planning mandates or, as in California, pass laws and reimagine enforcement in a way that make those planning mandates have more teeth. New Jersey recently completely revised how it approaches the New Jersey fair share, the successor to the Mount Laurel doctrine. Massachusetts in 2021 passed a statute called the MBTA Communities Act that ties the state's investment in transit to obligations at the local level. It's a cooperative localism regime, to use a phrase that I've used in my scholarship. So it's a regime where the state is telling local governments that they have to zone, it isn't telling them where or how. And most local governments that are MBTA communities have complied. Not all. There's been some pushback, some litigation, but it's an example of state priorities, filtering down and implemented at the local level. We can talk about other examples like that.

I think the second type of state preemption or intervention you're starting to see, and again, nothing new, but gaining much more traction and much more interest in an era when the kind of Ezra Klein-Eric Thompson abundance conversation is focusing much more on process. So there have been a series of reforms that have tried to streamline permitting, streamline environmental reviews, streamline development review, limit exactions to shape the process of how local governments manage development in order to move more quickly. I've been told that time is money and that the ability to move, to limit the amount of time that it takes to go from concept and financing to housing, actually makes a significant difference. And so California, Massachusetts, a number of other states have begun to look and have begun to enact essentially procedural reforms imposed from the state down to the local level.

In the third category, I would say, are substantive provisions at the state level. So this is actually displacing, not telling local governments, here's how you have to think about things, and we want you to plan, here's how we think the decision should play out procedurally, but actually stepping in. And I think the biggest trend here is the elimination or limitation of single-family zoning. So Oregon, in 2019, passed a statute requiring the state's largest cities to allow duplexes, triplexes, quads, clusters, townhouses in area zones, detached single-family. Statewide, right? Pretty significant.

If you think about the century we've had since Euclid, this is, really, a revolution, not so quiet anymore, right? California has had a couple of waves of this. 2021, the governor signed a bill, similarly allowing owners to split their lots and convert their homes to duplexes, and there's been ADU reform in California. There are similar measures in Washington and Vermont. Other examples of this are some states are doing direct upzoning. California has commercial corridor upzoning laws. Some states, California, again, being at the forefront of all of this, preempting local minimum parking requirements. That's a substantive limitation on the local authority to set conditions on land use. Eighteen states now preempt ADU limitations.

And so I think this is a trend, if we're going to look forward, that I think is only increasing, right? So Florida passed the Live Local Act, requires local governments to authorize multifamily residential and mixed-use development much more broadly than local governments have, changes the tenor of what is by right and what is permissive. There are conditions on all of this. It's a complex statute, and I don't think we have time to go into all the details, but it's a pretty significant shift in how land use operates at the local level in Florida. Texas, this past summer, passed a suite of similar bills that really get right into the weeds. Some procedural, but some really substantive about where multifamily zoning is allowed, how rezonings occur, what kinds of sites have to be open. And as with so many things in Texas, it's really targeting the big cities. There are interesting tensions between the state and places like Dallas, and Austin, and San Antonio, and Houston. So much of this is targeted at the largest cities. But there are other provisions that cover the state as a whole.

So again, our time is limited, but I hope this gives you a sense of the breadth of state interventions. And again, to look forward, I think one thing I have seen in studying and looking closely at preemption, not just in the land use and housing context, but much, much more broadly, is these things tend to get their own momentum. And once you have a model that a state thinks works, it tends to get replicated. I think if I had to guess where we're going to be as 2026 plays out and into the future, again, given the politics shifting on this, I think we're going to see more and more of this.

It's really interesting. Now, before we move on from this, because this is a core interesting topic, you mentioned earlier the cooperative localism, earlier on. The latter example that you're giving, it seems like almost like the other end of the spectrum, almost, of action in some way? First, is that an accurate read on it? Second, which seems to be maybe the prevailing method going forward, if there is one? Not to put you on the spot for it, but I'm interested in hearing what you might have to say about that.

I'm going to do that law professor or professor, I guess, dodge, and say, I haven't seen the data that's tried to break this down. So with that caveat, I would say it's a mix, right? So there are ways that you could characterize much of this as a model where states are putting some guardrails around or conditions on local authority. Some states, Florida, Texas, a few others, are being a little bit more aggressive. That's the end of the spectrum, as you know. But I think even in a state like California, the state hasn't come in and, with charter cities or noncharter cities, entirely displaced local authority. And some of that is politics, but some of that is the practical recognition that if you're in Sacramento, you can set goals, you could even try to identify particular friction points that need to be reformed.

And you can also begin with your own law, right? So the reforms to the California Environmental Quality Act is really a state mandate that the state is now beginning to pull back on in areas where it probably doesn't make a lot of sense to do a full environmental review if you're doing infill affordable housing. We have a pretty good sense in most cases of what the environmental impact of that is going to be, right? An interesting debate, but I think that's a positive reform that really begins at the state level. But I think most of these reforms have some variation on the recognition that even when the state is setting direction or intervening in targeted ways at the local level, the local government, whether it's a big city or a suburb or a small town, inevitably is going to still be at the heart of land use and planning. 

And I'll just add one coda to that. I do think to put on our hats thinking about this from more of an evaluative perspective, I do think models that recognize the inevitability of partnership, recognize that there are certain problems at the local level, certain elements of parochialism, certain ways in which the local political process can fail, communities that need protection, the whole question of how people who don't live in a community, how they're represented. I think that's a really important set of questions. I think it's appropriate in some context for the state to take that seriously.

I do think as a practical matter, both the local reception and the practical implementation is going to tend to work out better if the framework is one where at least there's an attempt to be cooperative, as opposed to, and not to say that there aren't local governments that are resisting appropriate changes, right? I don't want to deny that's a dynamic here. But I do think in the long run, if there are models that can develop that recognize that the divide between states and local governments in this area is an artificial divide, and we need to think about how we empower local governments, how we shift priorities, but how we recognize that local planners, local city council members, county councilors, and the like have a role to play.

Not to minimize the state discussion. It's a big thing. But a growing and potentially bigger thing right now is the federal piece of this, the federal preemption discussion. We discussed this in the Trend Report, but the current presidential administration, they've demonstrated that they are very interested in, in some ways, seeking to compel states and municipalities to change laws, policies, regulations that don't necessarily align with their priorities. Many of these do concern the work of planning, I would say, very closely. Transportation and climate change are two that are very much on my mind right now. We've seen things like the administration directing agencies to withhold funding that's either already been appropriated or threatening not to provide future funding, for example, in the event of a natural disaster because of some other local law or regulation that really might have nothing to do with those things that are on the books.

Can you discuss potentially... I know this is a big question, and everyone is really talking about this in the field right now. Can you discuss, though, some of the potential implications of this renewed federal preemption role and what that might mean for cities and potentially planners at the local level?

It's such an important question and a difficult one to answer in the following sense. You can think a year plus into this administration, and I think we're all living in dog years. So you can take any two-month period over the course of the last year, and things have been changing and shifting. And I think part of the challenge for planners, for mayors, for city council members, for the city attorneys I talk to about these kinds of issues, is it's hard to really discern a pattern.

There are obviously some things where there's been consistency. The policies around mass deportation are playing out in a fairly systematic and inexorable way, and I think are going to get more intrusive at the local level, more conflicts there, given how much money was appropriated in the One Big Beautiful Bill towards immigration and customs enforcement. And that money is just beginning to come online now. That's a significant tension point, obviously, at the local level that I think we're just beginning to see the full dimensions of. And I think if we're looking, maybe not the full two and a half, three years out, but even just over the next six months, eight months, is going to be something that's going to have consequences. It's a trend that's going to have consequences for local employment patterns, for policing, for just how communities react and respond, and the whole relationship, right?

But there are other areas, and you point, I think, rightly to the arbitrariness of many of the approaches to infrastructure. Canceling, or at least attempting to cancel, congestion pricing in New York City. I think that litigation is still ongoing, but I think there's at least a strong argument that the State of New York and the City of New York have the better of the argument. I teach administrative law, and one of the core things I try to tell my students is you can't just have a decision with no rationale. At least that's how courts have traditionally approached really important federal questions, and an off-the-cuff letter from the Secretary of Transportation is not a reasoned decision-making process. And this was a process that had played out for many, many years in very in-depth and litigated already environmental assessment. And the idea that we have an administration, again, whether it's congestion pricing in New York or the gateway tunnel in New York and New Jersey, or any of a number of other projects across the country, where for reasons that seem very difficult to discern from the outside, there is neither rhyme nor reason to why these projects are getting canceled.

Planners like to think ahead. Planners like to plan. And it makes it very difficult to do that when politics intervenes, and there's a midterm election coming up, and then we're going to be in the run-up to the 2028 election. And this is an administration that has proven, as you point out, that conditions on funding, that the cancellation of projects as a signaling device, that just blocking things that states and local governments want to do, whether that's in clean energy, whether that's in transportation, in area after area. I think it's going to be very difficult because, again, there is a certain level of arbitrariness to what the administration is doing.

A few minutes ago, you were talking about — so I hesitate to ask the next question, because I don't know if I'm changing my mind on it as we're discussing this. But there maybe seems to be a sense of a gradual erosion, possibly, of local control and authority on some areas that might feel relevant to planning. This is whether this is federal or state preemption-related and such.

First, I don't know if that's necessarily true. But it seems to be maybe a somewhat broader trend right now, but it's difficult to really discern and see how that might actually play out down the road. But if this is a persistent trend, how do you see the role or the work of local planners and planning departments, or cities more broadly, potentially changing in response to a broader pullback from local control and authority?

I actually think that planners are very well-situated to think about what shifting scales of governance actually mean. And as you know, in the history of planning, localism is only one approach. And in fact, it's interestingly complicated when you think about, for example, the federal government used to be much more involved in funding and resourcing regional planning, right? And if you think about many of the challenges we are facing, again, in transportation, I would argue in housing, in many areas of environmental protection, the regional scale is perhaps the most appropriate scale. And we can debate, as academics do, endlessly about the boundaries and the borders of what the right catchment area is for any given policy area.

But historically, planners have been very comfortable at multiple scales. I think that's actually a skill, and it transcends, by the way, the way lawyers tend to think about this, which is much more about formal authority. And so when I wear my lawyer hat, when I wear my law professor hat, I tend to think a little bit more about friction points and conflicts. That's fun to write about, that's fun to research.

But I think in practice, there's actually a lot more collaboration, cooperation, recognition of shared interests. And that's an area where I actually think the toolkit, the skills that planners bring, are really critical, and they're going to have to, I think, the whole planning profession, is going to have to lean into that in coming years, and perhaps a little bit more of the conflict resolution side of what planners do, but that's okay. That's great, and I think that's important.

I think if we think about how easy it is for the kinds of issues we've been talking about, whether it's housing policy, whether it is core questions of zoning, it's very easy for these things to get partisan. It's very easy for these things to get hypercontentious. I've certainly been in lots of local land use meetings, people yelling. It's part of a broader trend, I think, in politics in general and public discourse in general, getting more vehement, perhaps a little bit less collaborative. I think there's a really important role that planners have always played, but I think really have to play now in convening, in informing the public, in trying to navigate a really complicatedly shifting perspective.

I would, of course, as a historian, a little bit of a historian of these issues, I would complicate that picture. I do think there are clearly areas where states are getting much more involved than they have for a while. But again, I do think there are precedents to all of this and precedents for planners to be involved at multiple scales.

It's, I think, important that we do understand that a lot of the things that might be happening now, they might be new in terms of the topics or the areas in which they're focused, but the character of them and the relationship between the federal government and states and local governments, or states directly to local governments, these aren't necessarily brand new things. There's a very long history behind all of this stuff. There have been times where the federal government has been much more activist in its role. It's interesting that that role has changed and evolved over. I'm thinking of housing policy. In the 1930s through '60s, where they were very much stronger in that role. I think that it's interesting to see that there is a bit of an ebb and flow to this relationship a little bit. Not to discount, though, how that relationship might be changing a little bit, right?

Absolutely. I think it's worth pausing a little bit on the federal role, particularly in housing. I spent time earlier in my career at the Department of Housing and Urban Development in D.C., and HUD was really conceived of as the place where local governance, mostly urban governance, but people used to joke that it should be called the Department of Housing and Suburban Development, but where local governments really had a voice and a place at the table at the national level. It was a very different time in the '60s and early '70s when HUD really was conceived and became what it was meant to be. And now we see a significant retreat.

But I do think it's impossible to disentangle the federal role, whether it's creating the 30-year mortgage and managing securitization through Fannie and Freddie and the creation of the secondary mortgage market. The creation of the National Highway System over 36 years did more to shape the spatial dimensions of local governance than almost anything else, right? It is inevitable, even if the federal government wants to say, we don't have a role to play at the local level, that the federal government always does.

I do think, again, in the shifting political economy of housing, that we're beginning to see some bipartisan efforts at the federal level. There is, as I think you know, and when this airs, I'm not sure where it will be, but in October, last October, the Senate passed a bill called the Road to Housing, and it's part of the National Defense Authorization Act. If you want to find a vehicle that's going to get through the Senate, that's a good one, right? So it may, by the time this airs, have been killed in the House or may have passed the House, but it had pretty strong bipartisan support on the Senate side, 24-0 in the committee. Senator Tim Scott working with Senator Elizabeth Warren. That's not an alliance that you often see. But it's a recognition at the federal level that the kinds of things that we've seen, the kinds of policy conflicts that we've seen at the local level about permitting reform, about environmental review, about the substance of local land use and planning is now going to potentially, at least, be of interest much, much more directly than we've seen from the federal government, probably since the late '60s and early '70s.

And so for planners, I do think this is an area that's worth paying close attention to. It would do everything from simplifying NEPA for housing-related activities, to tying Community Development Block Grant funding, CDBG funding, to accelerated home building and funding reductions, if you're not actually moving the needle substantively in terms of housing supply at the local level, other incentives, creating best practice frameworks through HUD. It's obviously too early, and it may never pass, but this would be a pretty significant revitalization of the federal role. It's not so clear that this is an administration that would necessarily take it seriously, but you could well imagine certain elements of this aligning with a deregulatory approach to housing supply.

We can have, I think, reasonable debates about whether housing supply alone is enough to solve the challenges. But I do think housing supply has to be a part of the solution. It's, I think, significant that you're getting broadly supported bipartisan legislation at the federal level at a time when most things that happen in Congress seem to have pitchforks attached, right? That this is an area that actually seems to be moving in a legislative process that looks like what happened 30 or 40 years ago.

A little bit earlier, you mentioned precedent, right? I'm not a lawyer, but I know that that is a world that deals quite a bit in precedent and such, and I think it is an important part of this conversation. As I see it, each state or federal action or whatever it might be is potentially setting a precedent or creating those conditions for a new action that might go a bit further. That might be worrying for some on the federal level. It might be different related to preemption at the state level for others who might want to see a more active state role in housing production or whatever it might be. That, for me, it can make it a little bit difficult to understand just how much further this might actually continue to progress.

Now, you alluded to we can't just predict the future and say that trends are just going to develop in a linear way from here on out. But as somebody who has written and talked and done a lot on this topic, what do you see as some of the future frontiers for preemption, state or federal or both, and how it might evolve and the role it might play in the relationship of cities and communities with the state and with the federal government?

It's a great question, and I think there are optimistic and pessimistic versions of where the trend lines we see might go. I think there's an optimistic version that goes back to the conversation we were having about a recognition that inevitably, every level of government has an interest in well-designed, well-built, well-supplied local communities, and models that recognize that entirely displacing the authority of local communities has negative consequences. I think that those models are out there. I think the right way to think about it is to think about incentives, to think about resources, to think about elevating the role of every level of government in solving what are truly all-hands-on-deck kinds of problems. Again, whether it's housing or environmental quality or climate, these are things that everyone needs to be at the table to solve.

If I think about a pessimistic version of it, I worry a little bit about our tendency to polarize things that could otherwise be neutral governance tools. And I see that in broader areas of the preemption conversation between states and local governments, and you can point to many, many policy areas across the breadth of what local governments do, whether it's in civil rights or in labor and employment or in environmental protection or in new technologies. I could give you chapter and verse on ways in which it's been a very adversarial relationship, where arguably states have abused the authority to preempt, where courts have had to get involved and police this, and mostly have sided with the states, although not always. And that kind of abusive state preemption worries me. And I think that models that lean into that conflict that don't recognize that they're still going to be an important role for local governance, and that shared governance model is the right way to approach some of the hardest questions we're facing. That worries me. And sometimes that's framed as a red state, blue city dynamic, but I think it's broader than that. I think it plays out in states all over the country. I think that that is something that is worth being concerned about.

I'll just say to close, I'm not 100 percent a reflexive localist. I do think it's important to recognize that sometimes local politics don't work, and sometimes people who aren't in a community don't have adequate representation for the decisions that get made at the local level. We should take that very seriously. We should think about ways to solve political problems, small-d democratic problems at the local level. But as with democracy, writ large, it's perhaps not the best system except for every other. We need to think about how we improve it, not how we displace it.

I think that's a really good place for us to wrap up today. I think that this topic in particular, we have a lot of trends in this report. This topic in particular, it just touches... It's like this overarching thing that exists maybe above a lot of the trends that we're discussing, because how some of these things might play out that we're talking about in the report, whether it's environmental trends or political or social trends or whatever it is, this is a thing that directly concerns the work of cities and planners and planning, and it can influence how those individual trends, how those might flow, right, from feds to states to cities and how that all might interact. I think it's definitely something that we'll keep an eye on, It'll be impossible not to keep an eye on, going into the future. But I think it was good to talk through some of this stuff today. Thank you, Nestor, for joining us for really this excellent conversation. We really appreciate your time.

Thank you, Joe. It's been a pleasure.

For more on this topic, a summary of this discussion and many other collected trends and signals, please check out APA's 2026 Trend Report, available at planning.org/foresight.