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The Weaponizing of Environmental Law

Pollution-control laws were never intended to block residential and transportation development. But that’s how they’re being misused all over the country.

Maryland's Purple Line under construction
Construction of a bridge over Connecticut Avenue for the Purple Line in Washington, D.C.’s Maryland suburbs. Homeowners invoked environmental law to challenge the 16-mile light rail project, which is as much as $2 billion over budget and is scheduled to open five years late. (Photo: Purple Line Transit Partners)
In the early 1970s, in the midst of intense newfound concern about air and water pollution, governments around the country began legislating to control it. The federal Environmental Protection Agency was born. The National Environmental Policy Act (NEPA) attempted to spell out what the goal of environmental protection actually was. The federal government, according to the new law, was to “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.”

NEPA wasn’t binding on the states, but they soon began to emulate it. Minnesota was one of them. In 1971, it enacted MERA, the Minnesota Environmental Rights Act, whose stated goal was to ensure “that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed.”

Like many similar statutes enacted around the country, MERA was rather vague about just what the state could do to enforce its mandate. But it clearly was an air and water mandate. No one imagined that it would one day be used as a weapon against urban planning. Yet that is what is happening right now in Minneapolis.

Back in 2019, that city enacted what it called “Minneapolis 2040,” setting forth the steps it should take to improve the quality of its urban life over the ensuing two decades. The 2040 plan includes many promises and commitments, some of them highly fanciful, but perhaps the most important piece of specifics is a pledge to revise the city’s zoning law and to bar the use of single-family housing requirements.

Reasonable people may differ about the wisdom of this pledge, but common sense should tell any rational observer that it has nothing to do with the 1971 law protecting the state’s air and water. Nevertheless, a group of Minneapolis dissidents went to court claiming that the 2040 plan, and especially its zoning provisions, “would not only result in the degradation of our beautiful city but in weakened environmental protections for the entire state for years to come.”

Remarkably, the plaintiffs persuaded a county judge that zoning reform somehow violated MERA. In September, Judge Joseph Klein ruled that the 2040 plan’s residential rules would produce unacceptable density, crowding and stress and could “cause irreparable harm to the environment” and thus constituted a violation of the environmental law. He ordered the city to revert back to an earlier zoning law and come up with new arguments to convince him that the 2040 plan was acceptable. The city is appealing the decision.

It might be tempting to dismiss this action as an aberrant example of cynical litigation and eccentric and misguided jurisprudence. It’s clear that the plaintiffs in the 2040 case didn’t want increased density. It’s also clear that they were searching for any legal precedent, however dubious, that would appeal to a friendly judge. In fact, however, things like this are happening in other parts of the country. A columnist for the online publication Minn Post argued persuasively in the aftermath of Klein’s decision that the case “fits with a national trend of anti-urban activists abusing what ought to be useful environmental laws” and that “so-called environmental concerns serve as a fig leaf for long-standing battles about the U.S. built environment.”

WHAT’S HAPPENING IN MINNEAPOLIS is a pretty blatant misuse of environmental law. But there have been arguably more blatant ones. In 2021, a judge in California’s Alameda County decreed that the University of California’s Berkeley campus had to freeze its enrollment for the coming academic year in response to a suit brought by a group of Berkeley homeowners calling itself Save Berkeley’s Neighborhoods. The group claimed that a planned enrollment increase would have deleterious effects on local noise, traffic, trash deposits and homelessness. The freeze would require the school to withhold several thousand acceptance letters for the incoming 2022 class.

As in Minneapolis, the underlying issue was fair game for reasonable debate and disagreement. What was not reasonable was the vehicle the group used to argue its case: the California Environmental Quality Act (CEQA). That law, passed in 1970 and signed by Gov. Ronald Reagan, is explicitly aimed at protecting wetlands and endangered species, preserving wildlife habitat, reducing wildfire risk and regulating toxic waste sites. It says nothing about urban planning, and clearly has nothing to do with fixing the number of students at a state university campus or marking the students themselves as a form of pollutant. Yet the judge ruled that any expansion must stop while the university came up with a new report addressing environmental degradation.

Fortunately, this one came to a rational conclusion. Within a short time, Gov. Gavin Newsom signed legislation overriding the judge’s order. It’s unlikely that the draconian enrollment freeze will ever be imposed. But the misuse of CEQA remains. A study published in 2018 by the University of California-affiliated Hastings Environmental Law Journal found that the law was being used most often to block infill residential and transportation development in urban areas, generally on the grounds that it would foster housing discrimination. A legitimate issue, perhaps, but not one that should invoke an unrelated 50-year-old environmental law.

In 2016, a group of dissident Maryland homeowners invoked environmental protection law to challenge the construction of the Purple Line, a 16-mile light rail project that was designed to run through two huge suburban Washington, D.C., counties, starting in 2022. The plaintiffs had no legitimate environmental concerns; they just didn’t want a transit line in their neighborhoods. But a state judge bought most of their arguments, ruling that the transit planners hadn’t done enough to project what ridership on the line might be in the year 2040. Of course, none of us knows who will be riding what in 2040. Maybe we will all be in driverless cars. Maybe we will be teleporting to work. Maybe anything. There was no logical reason to apply a 1970 law written to “create and maintain conditions under which man and nature can exist in productive harmony.”

As things worked out, that decision didn’t take effect either. A higher court overruled it. But this and other delays added as much as $2 billion to the line’s construction costs. The Purple Line is now scheduled to open in 2027, some five years late.

ARLINGTON COUNTY, VA., WHERE I LIVE, is currently in the midst of a similar legal overreach. A small group of homeowners is challenging the county’s new “Missing Middle” ordinance, which permits the construction of six-unit dwellings in much of the county and ends strict single-family zoning. Their arguments are not entirely environmental: The plaintiffs are charging the county with providing insufficient notice, even though the issue has been debated for more than three years. They claim that their quality of life will be diminished by heavy traffic and school overcrowding. But they haven’t neglected to use the environment ploy. One of their complaints is that a tree-planting provision would infringe their property rights and is a violation of the Chesapeake Bay Preservation Ordinance, which was adopted “to protect our local streams and one of the world's most productive estuaries, the Chesapeake Bay, from pollution due to land use and development.”

I suspect that this lawsuit will ultimately meet the same fate as the ones in Berkeley and suburban Maryland. But like those, and like the case in Minneapolis, it raises important questions about the dangers of loosely written statutes, and about the temptation of the courts to bend those statutes any way they choose.

This may not be the most dramatic current failing of American democracy, but it’s not trivial, either. The question is what, if anything, can be done about it. One can argue that laws should be less vague, more specific, and political scientists have urged this, but it’s hard to see how it might be done. In a field as complicated as environmental policy, there isn’t any practical way for legislators to tell courts and bureaucrats exactly what to do.

A more practical approach might be a serious consideration of “original intent,” a doctrine that has become linked to the political far right but actually has more merit than many mainstream scholars believe. The idea of basing modern decisions on what the framers of the Constitution meant by cruel and unusual punishment or the right to bear arms is a flight of fancy, to say the least, but what about paying serious attention to what federal and state legislators intended when they drafted environmental statutes in the 1970s? If a law was written for the express purpose of protecting wetlands and wildlife, it should not be twisted into a condemnation of urban zoning reform.

We don’t know just what James Madison intended when he wrote the Bill of Rights in 1789. But we know perfectly well what lawmakers meant when they wrote the National Environmental Policy Act and its state-level counterparts. It is an act of arrogance for the courts to ignore them.
Alan Ehrenhalt is a contributing editor for Governing. He served for 19 years as executive editor of Governing Magazine. He can be reached at
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