On Monday, California enacted an important new law breaking down a key regulatory barrier to new housing construction. The CalMatters website has a helpful summary:
A decade-spanning political battle between housing developers and defenders of California’s preeminent environmental law likely came to an end this afternoon with only a smattering of “no” votes.
The forces of housing won.
With the passage of a state budget-related housing bill, the California Environmental Quality Act will be a non-issue for a decisive swath of urban residential development in California.
In practice, that means most new apartment buildings will no longer face the open threat of environmental litigation.
It also means most urban developers will no longer have to study, predict and mitigate the ways that new housing might affect local traffic, air pollution, flora and fauna, noise levels, groundwater quality and objects of historic or archeological significance.
And it means that when housing advocates argue that the state isn’t doing enough to build more homes amid crippling rents and stratospheric prices, they won’t — with a few exceptions — have CEQA to blame anymore.
“Saying ‘no’ to housing in my community will no longer be state sanctioned,” said Assemblymember Buffy Wicks, an Oakland Democrat who introduced the CEQA law as a separate bill in March. “This isn’t going to solve all of our housing problems in the state, but it is going to remove the single biggest impediment to building environmentally friendly housing….”
[F]or years, the building industry and “Yes in my backyard” activists have identified the law as a key culprit behind California’s housing shortage. That’s because the law allows any individual or group to sue if they argue that a required environmental study isn’t accurate, expansive or detailed enough. Such lawsuits — and even the mere threat of them —add a degree of delay, cost and uncertainty that make it impossible for the state to build its way to affordability, CEQA’s critics argue.
California’s regulatory barriers to housing construction are what has put the state at the epicenter of the nation’s housing crisis, and CEQA is a big part of the reason why. Exclusionary zoning will remain a serious problem in much of the state, blocking full realization of the gains from CEQA reform. But curtailing CEQA is still a major step in the right direction. The statute was long a powerful tool for “NIMBY” (“not in my backyard”) opponents of new housing construction. California NIMBYs have not been totally defanged. But they are much less potent than before.
In a recent Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning and other similar restrictions that greatly limit housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them. See also our much shorter non-academic article on the same topic, in the Atlantic.
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