Honorable Mention

 About thirty years ago, when I was at Cal Poly San Luis Obispo, I took an environmental law class. At the end of the class we had to write a brief and present it to a panel of volunteer judges in a real courtroom. The judges awarded students first, second, third place for the best briefs, and I had an honorable mention--for being clever.

The case we had to argue was a real one from our environmental law book--a developer had proposed a housing development in the Central Valley, and a raptor center had challenged it on various environmental and CEQA grounds. Our instructor was also clever--he assigned which side of the case we were to argue based on our opposite inclinations. Since I probably exhibited signs of populism, caring about good governance, and prioritizing environmental and people protection over developers making money at public expense, I was assigned the developer's side of the case to argue.

This put me in a difficult position. In a real job, I just would have rejected it--frankly, I felt the developer's case sucked. I saw no way to win, or even argue that side with a straight face. But as a student, I couldn't say no. I had to do it somehow.

Then I had an idea.

When I presented my brief before the panel of real judges, in an evening session in a real courtroom in downtown San Luis Obispo, I argued emphatically that if the court were to stop the project, it would violate the supremacy clause of the Constitution of the United States of America. One of the judges incredulously replied, "are you threatening me?"

My idea for the only possible thing to base my case on--and allow a development that would violate state laws, and possibly even put people in real danger (I don't remember the details, but the project might have been in a floodplain)--was something that superseded state law. That would have to be federal law. And the only connection to federal law that I could come up with for a housing development was immigration law.

If federal law allowed a certain number of immigrants (and presumably population growth) each year, then it stands to reason that those people needed somewhere to live, and states had the duty to provide housing for them. By denying my client's project, the state was interfering with federal immigration law and policy.

Now, frankly, I believe this argument was ridiculous. The connection to federal law here for a single project was such a tenuous basis for throwing out very important and essential state laws that protect the health, safety, and welfare of the public. But it was the only thing I could come up with that could remotely work. And I got an honorable mention.

The funny thing is, even though that argument was so ridiculous back then, the same dynamic is playing out on the state and local level today. The Point Reyes Light describes it as "...an exhaustive and contentious process initiated in 2020 after the state ordered cities and counties across California to increase their housing supply." 

The State of California assigned each city and county a number of housing units it is responsible for allowing through zoning. Those numbers were ridiculous, especially for slow-growing, rural, or fully-built-out areas with environmental hazards. But the state said to do it anyway, or risk the loss of funding (and risk even more unregulated development). So California's cities and counties complied--sometimes in ways that violated long-standing community plans and local zoning designed to protect the environment and people from hazards.

The zoning changes are not in and of themselves going to create these housing units, but they open a path for developers to propose too-large projects in areas where it seems unlikely and expensive to get them to comply with all the needed mitigations. Saying it is okay to put more units in places where it is not okay, just because the state said they had to, reminds me of my honorable mention for making the ridiculous argument that local laws should be ignored because we have to put the units somewhere. It is ridiculous. Local limits should come first, especially in areas that already have too much development in hazardous or environmentally sensitive areas. Putting more people in harm's way and exposing them to disasters is not good public policy. Better statewide and regional planning is needed that acknowledges and even embraces local limitations.

I also had a land use planning class at Cal Poly where we learned to base development restrictions on the capability of the soil to support various uses. It was a huge disappointment to enter the real world and see that this basic principle generally had not been applied and was not being applied in decision-making in California. Instead, we get hazardous and expensive housing and a degraded environment.

At various times in history, different levels of government have been on the side of environmental protection or destruction. It is easy to point to both good and bad laws and precedents throughout history at the federal, state, and local levels. We've made a lot of mistakes, and we live with that legacy. In a democracy, things can be messy, but it is better than the alternative. But it is still disappointing when natural resource professionals are not allowed to apply their expertise from the ground up because of powerful commercial or political interests. The mistakes we make today will be the legacy future generations will have to fix.