Environmental Laws in California Being Misused


There is nothing new in the idea expressed in rthe above title. Our all-time favorite is a book by the late Professor Bernard Fieden, in his day Chairman of the Planning Departrment at MIT. Its title is The Environmental Protection Hustle (MIT Press 1975). If you haven’t read it, you should. It demonstrates in detail the widespread misuse of environmental laws as applied to California land-use regulation. Instead of protecting the environment, they are often used, or more accurately misused, to prevent construction of housing, so that the suburban NIMBYs already on the inside of desirable suburban communities can keep others out in order to keep their communities exclusive and pricy — they have little to do with environmental values like air and water quality, endangered species and all that stuff.

Now, it’s 40 years later and California has had a lot of experience with that stuff and with the litigation it endlessly spawns. So if you have an interest in the interface of land-use and environmental laws, we recommend an item in the current issue (September 2014) of the California Lawyer, at p. 45. It’s a featured part of a Roundtable Series — this one on Land Use — in which a half-dozen of specialized lawyers discuss the status of California environmental laws.

These folks have much to say about things, but the bottom line of their discussion is to deplore the fact that over the years California environmental laws have evolved into a mish-mash of contradictory policies whose outstanding feature is, not to protect the environment, but to serve as an obstacle to the creation of badly needed new development, notably housing, that has resulted in California cities unsurprisingly becoming the most expensive places to live. Take a look at Clover Valley Foundation v. City of Rocklin, 197 Cal. App.4th 200 (2011). There it took two decades, not to build, but merely 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. Res ipsa loquitur.

We like the featured conclusion of Roundtable participant Timothy A. Tosta who says (at p. 51):

“We cannot do the jobs of being asked to do and call ourselves ‘environmental lawyers’ with a straight face. It just doesn’t work anymore.”

All this is true enough, but the Roundtable participants, being practicing lawyers, carefully refrain from fingering those responsible for this wretched state of affairs: California judges. Behind every unreasonable, time- and resource-consuming interpretation of environmental laws are judges who eschew reason and at times basic fairness, in order to interpret environmental laws is such a way that they do accomplish the opposite from their intended purpose, which is to regulate — not frustrate — needed development. In order to survive, if only economically, California must provide housing for its population and facilities for its commerce and industry that provide essential employment to its population. Instead they function as a potent motivational factor in inspiring employers to leave California, or not to set up business here to begin with, like the Tesla car manufacturer just did. The Silicon valley geeks and the Hollywood “beautiful people” can afford the resulting cost of living in their chosen upscale California areas. So the present system keeps them in splendid isolation in selected communities that keep out the hoi polloi, so they don’t care. But mere mortals can’t afford to continue living under these conditions, and unsurprisingly, they increasingly vote with their feet.