Empowering Local Government for Sustainable Development: Day Zero and Beyond

Abstract The 21st is the Urban Century. The world’s population reached 8 billion in November 2022, with over half (55 per cent) living in urban areas, a figure projected to rise to 70 per cent by 2050, and 85 % by 2100. And urban areas are the drivers of growth: according to the World Bank, cities account for more than 80 % of global GDP and nearly 90 % of private sector job creation. If economic, social, and human development throughout the world, and especially throughout the Global South, will occur, it will do so in cities and metropolitan areas. Yet cities are also legally and politically weak. They generally lack fiscal capacity and often the authority to regulate many of the most quintessential municipal affairs. Such legal fragility poses an enormous problem for development, for cities also face massive challenges: they are often cites of inequality and environmental destruction and lack both the power and accountability mechanisms to facilitate democracy. This Article considers the extent to which cities can contest their legal and political disempowerment through resort to the courts. Local governments often possess some sort of constitutional status, comprising both rights and (more often) responsibilities. What they often lack is leverage: national and state/provincial governments often have little incentive to cooperate with local governments in satisfying those obligations. But courts can change those incentives. This essay will consider the potential for litigation-driven local empowerment in two of the most important nations in the Global South: South Africa and India. In particular, this Article will focus on one policy area traditionally (although not exclusively) handled by local governments: water provision. The development of modern urban form required the provision of clean and sanitary water, and urban jurisdictions throughout the world early on assumed some responsibility for this service, whether through public ownership or public regulation of private ownership. Yet at the same time, water is crucial for agriculture, and indeed obviously for human life no matter where people live. Water law and policy thus clearly implicates the very heart of national economic and social development strategy. Excavating the fraught politics and technical issues surrounding water, therefore, serves as a prime area to demonstrate the power of local governments in development – or lack thereof.