California Environmentalism Comes Home to Roost, Thanks to Unrestrained Activism of California Judges

In case you missed it, dig up a recent New York Times article by Ian Lovett, Critics Say A State Law Hurts Effort To Add Jobs, September 5, 2012, at p. A18, which breaks away from the Times’ usual liberal-green orthodoxy, and discloses that environmental laws, whatever they may do for the environment, are also widely and crudely abused in California, and are now all too evidently imposing increasingly intolerable economic burdens on this nearly bankrupt state’s economy, by — among other things — frustrating the creation of new, badly needed jobs. Nothing new about that to us Californians, but it is amazing that the New York Times is at long last willing to lower its politically correct curtain, allow a peek into the once Golden State, and acknowledge the problem.

Environmental laws can be and are being used around here to harass just about anybody over  anything, including perfectly innocuous and even environmentally-friendly projects. The same is true of land-use laws which are often enacted and applied to further environmental objectives of the regulators. How far can it go? The Times offers as an example the kerfuffle in San Francisco where “the city’s plan to paint bicycle lanes, one of the main goals of environmentalists, was delayed for four years by a lawsuit filed by the local resident who claimed that the lanes could cause pollution.” Or, the case of a service station owner who was prevented from adding one gas pump — count ’em, one — to his service station because of a lawsuit filed by a competitor. Well might you ask: How is that possible? The New York Times presents the problem in the abstract, as if unseen extraterrestrials landed in the dead of night and inflicted these things on us while we slept.

But as you know, that is not how it happened. It happened because California courts not only tolerated but abetted and facilitated these things in spite of their positively nonsensical character. And it was not just a zealous, Savonarola-like commitment to environmental values — there was also an ideological undercurrent in these events whereby some of the plaintiffs advanced and judges tolerated or de facto endorsed a commitment to an anti-property ideology that permeated some of the plaintiffs’ litigational rhetoric. So you ask: How could a rational court system, presumably presided over by rational judges allow such nonsense to become the law of the land? Good question. It’s an enlightening effort when you try to answer it. But to do that, we need to take a brief look at how it all started.

When environmental laws were first enacted in California, the legislation originally provided that public projects would have to be preceded by consideration of environmental factors (i.e., an environmental impact report). So how did we get from that law to one requiring that EIRs be prepaired for all projects, private as well as public? To get an answer you will have to ask the California Supreme Court which by a slick semantic sleight of hand held in the 1972 Friends of Mammoth case (8 Cal. 3d 247) that in this context, “public” included “private.” Over Justice Sullivan’s principled dissent, the Justices held that inasmuch as the construction of private projects requires a permit issued by a public body, that makes private projects “public” within the meaning of the California Environmental Quality Act.

Friends of Mammoth was only the starting gun. It was promptly followed by an avalanche of California court decisions running roughshod over land owners’ substantive, constitutionally protected property rights, denying them due process, and generally treating them as second-class citizens. Much was written on this subject, so we won’t attempt to go through it all here. But we feel that we should mention some of our favorites.

First, take a look at Chapter 12 (entitled Sea Ranch, California: The Devil’s Due) in THE ZONING GAME REVISITED (1985), by Richard F. Babcock and Charles L. Siemon, describing in some detail the incredible degree of harassment of individual owners of home building sites at the Sea Ranch — without a doubt the best, most environmentally sensitive, prize-winning home development in California, located in Sonoma County, north of San Francisco, and the courts’ shameful refusal to provide relief even when faced with gross violations of the owners’ rights by the California Coastal Commission.

And speaking of the Commission, don’t miss Michael M. Berger’s article in the January/February 1979 issue of the California State Bar Journal, entitled You Can’t Win Them All — Or Can You?, describing how in the 1970s, during the formative years of the decisional law dealing with California Coastal Commission regulations and operations, the Commission won 87.5% of its reported appellate cases as an appellant, as opposed to a rate of only 29% by other parties in other civil appeals. Think about it: in almost nine out of ten appeals, the Commission reversed the decisions of trial courts that it did not like.  That’s like batting .800 in major league baseball.

And it wasn’t just then. In the much more recent case of Clover Valley Foundation v. City of Rocklin, 197 Cal. App.4th 200 (2011) it took two decades to get a California Court of Appeal judgment approving a developer’s compliance with environmental laws — the court proudly announced that in that case, California environmental laws “worked” because it took only 20 years from a developer’s application to build a housing tract under existing zoning, to the court’s EIR approval.

And in the Del Monte Dunes case, acting at the city’s request, the would-be developer had to go through five subdivision applications and 19 plot plans, only to be told by the city after all that that it would not be permitted to build anything on its land. Why? Because, although no such creature had ever been seen on the subject property, the city asserted that if an endangered blue butterfly should wander onto it, it might like it there, so the land had to be “preserved” for it.  At least in that case, the federal courts awarded damages and the U.S. Supreme Court affirmed. But as far as the city was concerned, its attorney was quoted afterwards in the local newspaper as saying “Nothing has changed. We were right then and we are right now.” So much for the “rule of law.” Welcome to California, folks.

As promised above, we won’t go through the many California cases that applied environmental/land-use cases in a bizarre fashion. You can do that on your own. Our point here is that whether you like these decisions or not, ideas do have consequences. And when those ideas take the form of precedential court decisions, they shape later decisions and shape future laws. And to conclude with the obvious, if that sort of stuff is permitted to go on for decades, and when judges, instead curbing unreasonable government conduct, facilitate it, there comes a point where the negative impact of the law — the price of the judicially served “free lunch” — becomes unsustainable; its negative consequences outweigh its benefits, leading to the bizarre situation described by the New York Times. It looks like we are at that point — a point where everybody in the state, including the judiciary whose budget is being slashed, as the state increasingly faces bankruptcy, will have to shoulder an increasingly intolerable economic and human burden. One consequence is that housing prices in California, in areas where people want to live, remain sky-high in spite of the ongoing recession.

Has it been worth it? You tell us.