The Fatal Flaw in 1970s-Style Environmental Laws

(Source: Unsplash/Marcin Jozwiak.)

I am an environmentalist. Always have been. It’s the reason I first became interested in the design of cities—our human habitat—and in how to make our urban systems more resilient.

For this reason, it really ticks me off when self-proclaimed environmentalists give the rest of us a bad name.

For the second time, a group of residents who call themselves “Smart Growth Minneapolis” (zero relation to Smart Growth America or its actual principles) have convinced a district judge to halt implementation of the city’s Minneapolis 2040 plan over its supposed environmental impact. If you have deja vu, it’s because this already happened in the summer of 2022. I’m not going to get into the procedural aspects of the case, but I wrote about it then, and basically every word of that piece is still relevant.

(If you want to read more about the lawsuit, here is a reported piece from the Star Tribune. And here’s a thorough piece from MinnPost from summer 2022.)

The Minneapolis 2040 plan, passed in late 2018, legalized duplexes and triplexes citywide, four- to six-story apartments on many major transit corridors, and eliminated all parking mandates in Minneapolis, among many other things. Evidence suggests these reforms have since led to a strong uptick in apartment construction, and resultant decreases in housing costs. The changes are also explicitly intended to make Minneapolis a more walkable and bikeable city, with a lower carbon footprint.

Now, until the court order is overturned, the city must revert to its previous comprehensive plan and zoning. This means, among other things, that minimum parking requirements and apartment bans are now back in effect across most of Minneapolis’s residential areas. Time to party like it’s 2009!

Don’t panic: Minneapolis will very likely prevail, either by completing an Environmental Impact Study, allowing 2040 to go back into effect, or through another court ruling or state legislative action (which could have already prevented this outcome by exempting cities’ comprehensive plans from the state’s environmental law, the Minnesota Environmental Rights Act).

But this case just adds to the mounting evidence that the wave of environmental laws passed in the 1960s and 1970 which facilitate suits like this are irreparably flawed. These laws include the Minnesota Environmental Rights Act (MERA), the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). What they all have in common is that they require the exhaustive documentation of negative environmental impacts of major projects, and they allow citizens to mount legal challenges to a wide range of government activities or decisions on the grounds that they will bring environmental harm.

These laws have another thing in common: by making it easy to litigate and delay policy implementation on the basis of specific, narrowly defined harms, they discourage policy makers from doing anything that involves genuine environmental trade-offs—even if the net result would be profoundly positive. Because of this, these laws are most useful not necessarily for those who seek a greener world, but for those who wish to preserve the status quo.

Nothing Outside the Frame Counts

I’ve seen one dominant reaction to this from supporters of the 2040 plan. Paraphrased: “These folks aren’t sincere in their environmentalism. The local chapter of the Sierra Club and a whole host of other environmental organizations issued a statement of support for the city and the 2040 plan. These are just NIMBY cranks weaponizing environmental law, who don’t care one bit about conservation.”

In my experience, this isn’t quite right. I wish it were. It would be simpler if it were. But there is a genuine generational and philosophical split within the environmental movement. I’ve met a lot of people who care deeply and sincerely about conservation, who believe that the best way to act on that concern in the context of local politics is to oppose virtually all development, preserve green space, and mandate low-density settlement patterns.

These people are wrong, and they’re wrong for essentially one reason: they measure and define “environmental impacts” as those occurring within a particular local geography. Spillover effects aren’t considered; everything outside the frame is invisible. In effect, they understand “environmentalism” as a local quality-of-life movement.

And the legal framework that environmentalists pioneered in the 1960s and 1970s enshrines the same preoccupation in law, because it allows citizens to sue the government as long as they can demonstrate locally measurable harms from a policy or project. Just look at some of the actual environmental claims being advanced against Minneapolis 2040, as demonstrated in the court order enjoining the plan:

It will cause local population growth.

At the heart of the whole complaint, the plaintiffs allege that Minneapolis 2040 is uniquely harmful because at “full build-out” it would authorize 150,000 new housing units, which could entail a massive increase in the city’s population. But Minneapolis could authorize zero new homes to be built in the next 20 years, and the people who would have lived in those homes will still exist outside Minneapolis, generating environmental impacts wherever they live. Blocking housing locally doesn’t stop development; it displaces it.

It will generate more impervious surface.

The lawsuit repeatedly emphasizes that implementation of the Minneapolis 2040 plan allowing denser development will result in more impervious (i.e., paved, or built) surface within city limits, adding to storm runoff and water pollution. But expand your frame beyond the city, and the evidence is very clear that building for density and walkability results in less total pavement, not more. The compact cities of Western Europe and Japan have less than half the impervious surface per capita of the U.S. and Canada, where single-family houses and lawns predominate. The reason is simple: the leading causes of impervious surfaces other than buildings are roads and parking, and we Americans build more of those than anybody else.

It will increase traffic and decrease air quality.

Minneapolis 2040’s critics allege that the plan will increase traffic and congestion within city limits, but in reality it is very likely to decrease total (and maybe even local) traffic. This is because Minneapolis 2040 explicitly envisions a city in which needs can be met without driving, or while driving far shorter distances. Every person who lives in Minneapolis is likely to contribute less to automobile emissions than if the same person lived in Minneapolis’s suburbs, something not captured by the hyper-focus on local impacts.

It will increase “parking constraint.”

I don’t even know what to say about this one, but it’s right there in the plaintiffs’ list of adverse “environmental” consequences of Minneapolis 2040: it’ll be harder to find a parking space.

It will increase carbon emissions—just kidding.

I don’t have a screenshot from the court order for that last one, because the plaintiffs’ expert study on the environmental impact of zoning change does not contain the words “carbon,” “emissions,” “greenhouse,” “warming,” or “climate” even one time. The most important environmental issue of our time is not mentioned, again revealing one of the starkest limits of this kind of environmental law: it’s based almost entirely on locally measurable harms, not global ones.

You Can’t Fix the Environment Through Lawsuits 

Urbanization’s environmental impacts are real. And in some cases they do require different forms of mitigation than more spread-out forms of development. A rural area doesn’t require storm sewers; a city does. Localized flooding is a real problem. So is localized air pollution (though with the deindustrialization of city centers, the biggest cause of that now is often a freeway).

But the people suing Minneapolis aren’t looking for a constructive debate about what forms of mitigation are proper. They’re trying to block changes in land use patterns, which means they’re fighting in favor of the status quo, which the court order asserts repeatedly has never been shown to be environmentally harmful. This part is a truly bizarre bit of legalistic reasoning: the status quo land-use requirements are by definition neutral, and we are only concerned with things that might be made worse by a change in law. Things that might be made better are irrelevant for the purposes of bringing environmental litigation.

Screen shot: The court determines that the preceding land-use plan (including apartment bans and parking mandates) has no negative environmental effects, because no one has ever sued over them.

The legalistic environmentalism we have works only in the negative: How do we stop people from polluting? But anything resembling a modern standard of living entails some local environmental harms. The philosophical implications of having “don’t do anything that generates pollution” as your guiding environmental principle are terrifyingly misanthropic. This misanthropy lurks not far below the surface of a court order that seems to suggest that anything Minneapolis does that might increase the population of Minneapolis is environmentally suspect: people are pollution.

The environmentalism we actually need is defined in the affirmative: How do we create systems for meeting our needs that are sustainable in the literal sense of the word? That is, they can be sustained over generations without undermining the integrity and functioning of the natural ecological processes we depend on.

Unfortunately, the legal framework we have makes it very hard to make holistic arguments about systems change. Witness this remarkable passage from the district court’s order (emphasis mine):

The City asserts that an injunction of Plan 2040 would impair the City’s “incremental progress toward reducing automobile dominance”....

When this court considers [plaintiffs’ expert] Pauly’s environmental concerns with the 2040 Plan that relate to traffic and parking [increased vehicle traffic, increased vehicle congestion, increased parking constraints, decreased air quality, increased noise impacts, among other adverse impacts], and weighs these environmental concerns against this asserted “hardship,” this court finds that “impairment of the City’s incremental progress toward reducing automobile dominance” does not constitute a meaningful or “unnecessary” hardship.

The 2040 plan would reduce the amount of driving done by Minneapolis residents, but this is not a “meaningful” consideration because it exists on a spectrum and is hard to quantify. But traffic congestion and parking constraints—those you can sue over.

If you are sincerely an environmentalist—and if you claim to be, I’m not going to tell you that you’re not—you should think like an ecologist. That is, think in systems. Environmentalism isn’t about saving x number of trees or species or acres of wilderness, or even turning a knob labeled “CO2” to an acceptable number of parts per million. It’s about the functioning of systems that are dazzlingly complex, beyond our understanding, and in which nearly everything is connected to everything else.

Existing environmental law discourages policy makers from thinking in terms of systems, feedback loops, and spillover effects. Instead, it paralyzes policy, because there’s always someone with deep pockets who can claim harm from virtually any action. For that reason alone, real environmentalists should oppose the abuse of these laws in service of the privileges some enjoy under the status quo.

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