My coworker’s wife recently revealed to me that she used to practice environmental law in Los Angeles. “Used to?” I responded with eyebrows raised. To me, environmental law has always seemed a truly benevolent practice area - thus, a coveted field.
His wife (let’s call her “Anna”) explained that her interest in environmental law was exactly why she applied to law school in the first place. But it wasn’t until she was practicing that Anna realized her work had little to do with protecting the environment.
Really, her job was to block proposed construction projects and extract concessions from developers by leveraging requirements of the CEQA.
Mechanisms for obstruction are baked into the law. Under the CEQA, or the California Environmental Quality Act, a public agency must perform an initial study to determine if a proposed project may have a significant effect on the environment. If the agency concludes in the affirmative, the agency, with the help of the developer, must prepare an environmental impact report (EIR). The EIR evaluates the environmental impacts of the project and discusses alternatives that reduce adverse impact. Once the EIR is released to the public, a comment period commences and remains open for 30-60 days.
This is when Anna went to work. On behalf of her clients, she would submit comments alleging that projects failed to meet the law’s requirements. Or she would show up at public meetings to make the case that the only alternative avoiding adverse environmental impacts was no project at all.
Even after projects received approval, Anna’s firm would allege that new information had been uncovered that warranted a new review. Or they would appeal approvals while simultaneously filing injunctions to bring work on a project to a halt.
Anna characterized her former clients as “mostly NIMBY’s and competing developers.” Ironically, the thwarted proposals were often for the building of clean energy facilities, public transit, and affordable housing.
Disillusioned with the true nature of her work, Anna not only left her firm, but the practice of law altogether.
Widespread Abuse
It turns out that the use of environmental regulations to obstruct development is not isolated to Anna’s firm or to the state of California. A group in the Hamptons opposed an offshore wind farm under New York’s State Environmental Quality Review Act. Protestors filed legal challenges in Honolulu to block wind turbines for alleged endangerment of bats in violation of the Endangered Species Act.
The stymied projects are not limited to construction. For example, a group in Berkeley succeeded in petitioning a court to limit the university’s enrollment. The group, Save Berkeley’s Neighborhoods, argued that UC Berkeley was increasing its student body without considering the environmental impacts in accordance with the CEQA.
Sometimes the regulations are used to extort deals. Building trade unions in San Francisco have been accused of wielding the threat of CEQA lawsuits to force developers into high-priced, no-bid contracts. Critics argue the increased costs are passed on to residents and exacerbate California’s existing housing crisis.
Paved with good Intentions
Unsurprisingly, environmental regulations are usually introduced with the goal of protecting the environment. The CEQA was signed into law in 1970 by Ronald Reagan, then Governor of California. The move was a response to public concern for the environment that increased amidst the industrialization of the 1960’s and the success of Rachel Carson’s book Silent Spring.
The CEQA was intended to ensure that consideration of environmental impact would be part of the government‘s approval process for construction projects. Around the same time, other states passed similar legislation. And the Federal Government passed )the National Environmental Policy Act, followed by the Clean Air Act and the Clean Water Act.
At their inception, the laws were viewed as progressive. But it’s hard to imagine that they would have been as well-received had their supporters an inkling of the beleaguerment they would become.
Damned if you do
In an ideal world, all environmental lawyers working for anti-environmental clients would go the path of Anna. But it’s unrealistic to expect firms to turn away clients who are able and willing to pay. And there will always be practitioners who do not view the work as morally objectionable and are willing to meet the demand for representation.
Anna expressed a hope that the abuse serves as a cautionary tale. She thinks it’s clear now that environmental regulation should punish actual harm rather than hinder growth for fear of some potential harm. Afterall, we need innovation. The planet needs innovation.
Comments