Andy Gocher - Flickr

Nimbyism: The Consequence of Environmental Regulations

Stringent, outdated conservation laws are being used to stop dense, environmentally-friendly housing projects

Dense development is beneficial for the environment. The Environmental Protection Agency recognizes this, in theory, and developed guidelines for advancing “infill development.” Oftentimes, its own regulations get in the way by requiring strict mitigation and banning construction near bodies of water on somewhat dubious premises.

Other environmental agencies at the state and local levels also stop development, having been captured by Nimbys for whom “green” is a lifestyle brand, not a coherent ecological worldview.  

For a lesson in EPA contradiction, take the 12,000-unit residential project that Cargill has wanted to build for years in Redwood City, a Silicon Valley suburb. Under the Obama administration, the agency determined that the development, which would go on industrial salt-making land, would negatively impact the San Francisco Bay, despite opposite findings from the Army Corps of Engineers. Much of the dispute stems from whether or not the site is on wetlands; the developer contended that it was not, while regulators argued that it was. In 2018, the Trump administration worked to reverse the EPA’s regulatory stance, but last year, with Democrats back in office, the project was shut down for good following a major court ruling. This means that after a decade of regulatory back-and-forth, the EPA, working with local environmentalists, helped squash badly-needed housing in an area with some of America’s most expensive median home prices

Water-related pollution is strictly regulated by the agency. As the EPA explains: “Runoff can pick up and deposit harmful pollutants like trash, chemicals, and dirt/sediment into streams, lakes, and groundwater. Construction sites, lawns, improperly stored hazardous wastes, and illegal dumping are all potential sources of stormwater pollutants.” For this reason, the agency’s National Pollutant Discharge Elimination System policy requires any development that creates a point source to obtain a permit. 

Local runoff regulations can be even more onerous. In 2004, a group of developers in Spokane County, WA, brought challenges to a runoff ordinance they claimed was overbearing, as it would require them to eliminate all runoff caused by new construction. A related regulation forced developers to construct retention ponds. One area developer called for a case-by-case approach to drainage issues in response, rather than sweeping regulations that would obstruct multiple types of development. And all 50 states have their own stormwater standards, which come with varying degrees of severity.  

A As I covered for Catalyst in 2020, the “Friends of the L.A. River” organization blocked a mixed-use development that would have placed 420 housing units along the Los Angeles River, because the group wanted wetlands along the river instead. This means people who would have lived in the project will likely instead live in sprawling developments that add to impervious surfaces.  

California’s Environmental Quality Act law (CEQA) is notorious for this counter-intuitive advocacy. The lawrequires that state and local agencies disclose and evaluate the significant environmental impacts of proposed projects and adopt all feasible mitigation measures to reduce or eliminate those impacts.” 

Yet a 2015 analysis by the law firm Holland & Knight found that urban “infill” projects—meaning those that don’t require new construction on greenfields—were the most commonly targeted for CEQA lawsuits (80% of cases). The law had been used against everything from state-funded amenities, to local transit projects and senior housing. As a summary finds, “renewable energy is the most frequently challenged type of industrial/utility project, and housing (especially higher density housing) is the most frequently challenged type of private-sector project.”

Of course, not all environmental laws are as counterproductive as CEQA; and I don’t pretend, as an ecology layman, to know how courts should have ruled in all the above-mentioned cases. But public officials who delve into these “environment vs. development” issues must understand the role that regulatory capture plays in hijacking the conversation. Whether it’s a local, state, or federal agency that is tasked with enforcement, there is often immense pressure on these agencies from local activists who act in bad faith. As the Holland & Knight paper reiterated, the majority of CEQA lawsuits, for example, came from “associations…which have no prior track record of environmental advocacy.” Rather, it seems the goal is to abuse well-meaning environmental laws for Nimby purposes.

This article featured additional reporting from Market Urbanism Report content staffer Ethan Finlan.