Dog Bites Man: Environmental Impact Edition

Casablanca36Earlier this week, Greenwire noted a Los Angeles Times story reporting that businesses are using the California Environmental Quality Act – California’s version of NEPA – as a tool of economic competition, trying to kill or delay projects for economic reasons. Much like Claude Rains, I am shocked, shocked, to find that there is strategic litigation going on here. In the past two years, I have defended multiple court cases and administrative hearings brought by a 10-citizens group against one particular client. Many of those claims have been premised on our state MEPA statute. Who are the members of the citizens’ group? A competitor of our client, and a variety of employees of the competitor and relatives of the competitor’s principal.

As suggested by the headline, none of this is really news to practitioners, who have to live with this stuff all the time. What really caught my eye in the Times story was this quote from a defender of the status quo:

Environmental advocates say the focus on why groups use CEQA is misplaced. “You shouldn’t really be looking at motivations of petitioners,” said Doug Carstens, an environmental lawyer in Santa Monica who often files CEQA complaints. “Even if it’s a solely economically motivated actor, if they’re promoting transparency, good government, why not?”

Why not? Why not? Because transaction costs matter. Because they are a dead weight on the economy. Because they distract agency personnel from focusing on more important and pressing environmental issues. Because they really can kill valuable developments. Perhaps Mr. Carstens is an outlier, but I fear that he in fact remains all too typical in an environmental movement that remains, at its core, very skeptical of, if not downright opposed to, economic development.

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