The Great Defenders of the Status Quo
Environmental laws are being used to justify oil drilling in Los Angeles, single-family zoning in Minneapolis, and the construction of the border wall.
Updated at 4:00 p.m. ET on March 17, 2023
Anti-immigration activists, a Los Angeles oil and natural-gas company, historic preservationists, and bird enthusiasts make for unlikely bedfellows. But in recent years, they’ve all embraced the power of decades-old environmental laws—not to protect the environment but to defend the status quo.
Stick with me here. Signed into law in 1970, the National Environmental Policy Act and its state and local equivalents require federal agencies to assess the environmental effects of major projects before they sign off on them. Supporters argue that NEPA “empowers local communities to protect themselves and their environment.”
But NEPA is more burdensome than it may sound. As the economist Eli Dourado has documented, environmental-impact statements were initially very short—just 10 pages, in some instances. But now they average more than 600 pages, include more than 1,000 pages of appendices, and take four and a half years on average to complete.
How did this happen? Lawyers—the answer is always lawyers. Over time, the courts have embraced more and more expansive definitions of what these statements should cover. And lawyers—terrified of getting their clients caught up in lengthy court proceedings where a judge tells them they should have thought through the fourth- or fifth-order impacts of an apartment building—spend eons fleshing them out. The goal is not to mitigate environmental ill effects but to get an A+ for thoroughness.
Listen, some of my best friends are lawyers. But development is supposed to flow through the democratic process, which elects mayors, city-council members, state legislators, and governors to decide what to build and where. Subordinating that to an adversarial legal process is by definition subordinating the voting public to the small group of people with the time, resources, and incentives to sue.
Putting more abstract concerns for democracy aside, in practice, NEPA and related laws have evolved not to hold governments accountable for protecting the environment but to provide organized interests with yet another tool to stymie government action. And by action, I mean anything.
Let’s return to our unlikely bedfellows.
The Massachusetts Coalition for Immigration Reform’s innocuous name belies its anti-immigration position: Just scroll through its Twitter account for a flavor. Recently, it sued the Biden administration for failing to conduct a NEPA analysis when it expanded refugee programs, suspended construction of President Donald Trump’s border wall, and enacted various other immigration policies that it says have increased illegal immigration.
One of the plaintiffs in the coalition, who has a cattle ranch near the southern border, contends that border crossers have “set fire to land he leases and left trash, campsites, and blankets in their wake,” and that “his heightened awareness of trespassers on and around his land has impaired his enjoyment of the outdoors.” In August, the U.S. District Court for the District of Columbia dismissed some of the coalition’s claims but decided that the challenges to the refugee program and the border wall, among others, could proceed.
The L.A. City Council voted unanimously in December to end oil drilling, a decision hailed as a “historic move in a city that was built by a once-booming petroleum industry.” But Warren Resources, a privately held oil and natural-gas exploration and production company, sued in January, claiming that L.A. had violated the California Environmental Quality Act, the state’s version of NEPA, because its environmental-impact statement was inadequate. Reading the lawsuit is mildly disorienting—the plaintiffs argue that banning oil drilling will increase greenhouse-gas emissions, and they also assert that L.A. is “depriving the public of an opportunity to meaningfully comment on the measure and its feasibility.” Apparently, a unanimous vote by an elected body is not a meaningful comment. So much for democracy.
A few years ago, Minneapolis developed a plan to eliminate single-family-only zoning, allowing for duplexes and triplexes on lots throughout the city. I suppose you know where this is going. Invoking Minnesota’s state environmental law, passed concurrently with NEPA, the Audubon Chapter of Minneapolis, the Minnesota Citizens for the Protection of Migratory Birds, and Smart Growth Minneapolis sued to block the rezoning effort, claiming that the city hadn’t considered the environmental harms of higher-density living. Never mind the research showing that higher-density is actually beneficial for the environment. “If this ruling establishes precedent … anti-housing groups could very well challenge any comprehensive plan they don’t like on vaguely environmental grounds, forcing cities into years of litigation and zoning chaos,” a local scholar warned. (The controversy was felt internally at the Audubon chapter, and after board turnover, the group filed recently to remove itself from the lawsuit.)
The University of California system has repeatedly weathered criticism for admitting students without providing sufficient housing options. As the Los Angeles Times reported, 9,400 students “were denied university housing [in 2022] because of shortages,” which pushed some into homelessness. UC Berkeley sought to address this crisis by building housing for 1,100 students. But local homeowners and historic preservationists sued to block the development, citing, among other concerns, the potential environmental impact of “loud student parties.” A judge recently ruled in the homeowners’ favor, acknowledging the legitimacy of this concern. Is this what environmental protection means now? Shielding the ears of wealthy California homeowners who knowingly moved next to one of our nation’s preeminent universities?
The concept of pollution has apparently stretched to include not just toxic waste and carbon-dioxide emissions but also any potential change to quality of life—an insidious shift that groups students into the same category as oil and natural gas. When asked where the students should go, a local leader suggested a satellite campus miles away from Berkeley, which, the San Francisco Chronicle points out, would “create even more extreme environmental impacts in a neighboring community—one that lacks the public transit and other sustainable infrastructure that Berkeley does.”
Seemingly in an attempt to avoid censure, the court’s opinion begins by almost pleading with the reader to recognize that “we do not take sides on policy issues. Our task is limited. We must apply the laws that the Legislature has written to the facts in the record.” The judges add that the defendants don’t have to abandon their plan to build student and low-income housing; they only need to go back and fix their proposal: “Ultimately, CEQA allows an agency to approve a project, even if the project will cause significant environmental harm, if the agency discloses the harm and makes required findings.”
This is all a game. And the winner isn’t the public or the environment. It’s the status quo.
The status quo can be preferable to a proposed alternative. I readily admit that these environmental laws stop environmentally damaging projects. But I’m skeptical that the broad hammer of status-quo protection actually prevents more damage than it causes.
See, for example, the federal government’s permitting dashboard. It shows many more planned or in-progress renewable-energy and electricity-transmission projects than fossil-fuel projects. This shouldn’t be all that surprising, given the decades of political activism highlighting the harms of carbon emissions, the surge of investments in clean technology, and the grim reality that we’ve already built a lot of fossil-fuel infrastructure. But the larger point is that we have many more clean-energy projects than dirty-energy projects that could be slowed or derailed by NEPA.
We now know that unless we build quickly and cheaply, we are slated to lose out on much of the climate benefits that clean technology offers us. Advances in solar and wind power are meaningless if we don’t have the political capacity to build the infrastructure that gets that energy to our homes and offices.
But even if I’m wrong about the balance of harm, what’s clear is that the answer to the question “What’s best for the environment?” is not necessarily guiding the answer to the question “What should we build?”
The egregious cases above illustrate how these laws can be weaponized for ugly ends by unsympathetic actors. Yet, after sitting through countless community meetings and reading thousands of public comments, I’ve noticed that opposition to local projects doesn’t always come from an easily caricatured millionaire homeowner; typically, it’s from people of all sorts who are afraid of change. These status-quo defenders are often asking for the impossible: for someone to tell them exactly how their lives will look in the future. How will this affect my commute? What kinds of neighbors will live near me? And in their fear, they ask for caution, for further study, for more deliberation. They ask for time.
Caution and deliberation are good in moderation, but waiting cannot relieve this uncertainty; it merely changes its form. Doing can cause harm, but not doing won’t preserve the world in amber. Neighborhoods in desirable communities that don’t build more housing see skyrocketing prices and demographic shifts toward high-income, white, and older residents. And nations that don’t build the necessary renewable-energy infrastructure will be subject to the very environmental degradation that 20th-century activists tried so hard to prevent.
The unforeseen consequences of blocking change should weigh as heavily as the ones that come from allowing it. Those lost students, missing refugees, absent neighbors, and failed government projects may never intrude on our sight line or cause us frustration during our commutes, but they cost us all the same.
This article has been updated to reflect the fact that the Audubon Chapter of Minneapolis recently removed itself from the lawsuit blocking the city’s rezoning effort.