Land Use Prof Blog

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 10: Theoretical Underpinnings of the Paris Agreement and Corollary Benefits: A Series by John R. Nolon

This post is the final issue in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Theoretical Underpinnings of the Paris Agreement and Corollary Benefits

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

 

The Conference of the Parties in Paris called for Nationally Determined Contributions to climate change mitigation, embracing bottom-up state and local mitigation strategies. Surprising to some, this move is supported by sound theory emanating from many sources and disciplines.  These include, inter alia, the United Nations Environmental Programme (UNEP), the Intergovernmental Panel on Climate Change (IPCC), two Nobel Laureates (one in Physics, the other in Economics), two prominent law professors, and a sociologist. This blog series ends with a restatement of the theoretical underpinnings of Low Carbon l=Land Use and its corollary benefits, which transcend climate change and further demonstrate the wisdom of relying on local land use power.

The UNEP calls for the adoption of national framework laws for environmental protection. Such laws begin with a statement of goals and policies and create logical institutional arrangements among levels of government.  They create nested hierarchies of governmental agencies that coordinate responsibilities based on the competencies of each level of government.

The IPCC added a chapter on the relationship between the shape of human settlements and climate change mitigation in its Fifth Assessment Report, published in 2014, a year prior to the Paris Conference of the Parties. The chapter addresses the effects of urban growth on climate change, focusing on urban form, infrastructure, and land use mix. It notes that “areas with a high mix of land uses encourage a mix of residential and retail activity and that mixed land uses reduce the amount of Greenhouse Gasses by creating efficient use of energy and reducing vehicle miles travelled and auto emissions.” It recognizes that local governments are critical actors who shape these kinds of neighborhoods.

Yale law professor Robert C. Ellickson warns against the “Yale disease,” which he calls the propensity of his students to look entirely to federal laws and federal courts for solutions. He refers to the “principle of subsidiarity,” which holds that responsibility for dealing with a problem should be delegated to the most decentralized institution capable of handling that problem.   His instinct is supported by Nobel Laureate in Economics, Dr. Elinor Claire Ostrom. Her view of governmental strategies is that they should be “polycentric”. She warns against the “panacea effect,” which is akin to the Yale disease. She too would assign key decision responsibility to those who are as close to the scene of relevant events and to the actors involved. 

Law professor I. Michael Heyman, with whom we met when we founded the Land Use Law Center 25 years ago, headed the Smithsonian Institution at the time and was known to us as a former Professor of Law and of City and Regional Planning at Berkeley and former Chancellor of the University of California. We had just completed a study of the sustainability of the Hudson Valley Region and were deeply concerned about the damage to natural resources caused by sprawl: the result of land use plans adopted by over 200 constituent local governments. He suggested that, to foster sustainable human settlements, we build interconnected networks of local land use leaders, as he and others had done with the several communities that share land use jurisdiction in the Bay Area in San Francisco.

Nobel Laureate in Physics, Dr. Murray Gell-Mann, attended our meeting with Professor Heyman. He had just been dubbed the “man who knows everything” by the New York Times. Dr. Gell-Mann helped to establish the Santa Fe Institute, was on the board of the MacArthur Foundation, and had just published his book on sustainability, The Quark and the Jaguar. As a physicist, he based much of his thinking on the function of “complex adaptive systems” in nature and human communities.  His writings focused on how ecological systems and human communities adapt to stress and crises. He discovered that healthy systems are divided into components that communicate regularly and rapidly to sense impending threats and to determine how to respond effectively. Both he and Professor Heyman pointed out that the land use boards within the typical local government are not communicating effectively and need to be trained to do so. Similarly, local governments that share challenges regionally do not plan together, and thus have difficulty perceiving the threats of sprawl and developing strategies for responding.

All change related to land use manifests at the local level and it is there that land use plans and regulations need to be changed to reorder human settlements. Sociologists study how change happens. One term for what they observe is the “diffusion of innovation,” popularized by Dr. Everett Rogers. Diffusion, he notes, includes the planned and spontaneous spread of new ideas, such as methods of containing sprawl, or implementing measures to mitigate climate change. We adopted his notions in establishing the Land Use Alliance Leadership Training Program and selected local “champions of change,” as Rogers labels them, to attend our training program. We learned from Rogers that change happens when local champions reach out beyond their jurisdictions to peers and respected change agents to solve local problems, so we brought these resources into our training programs. When my Yale students explored why communities adopted exemplary local environmental laws they found out that most resulted from the work of community leaders reacting to damage to the local environment and they named these perturbations and called this the “perturbation effect.”

Shortly after we met with Professor Heyman and Dr. Gell-Mann, we started working with the City of Yonkers on the Hudson Park development, where we learned about the corollary benefits to the environment of transit-oriented development, a key climate change mitigation method. We knew that capturing the expanding population of the region in well-planned urban developments would counter sprawl, but we did not recognize the numerous other benefits of such projects.  Hudson Park is a compact, mixed-use development at the Yonkers train station: an express stop on the MetroNorth commuter rail line. The project was built at a density of 130 du/acre to create the ridership needed by the railroad. Compared to sprawling subdivision developments, Hudson Park reduces average per household impervious coverage by 96%, lowers per capita water use by 60%, and avoids disrupting wetland and watercourse environments needed for adaptation to climate change. At 90% coverage, Hudson Park paved over 36,000 sq. ft. per acre and at 130 du/acre that amounts to 275 sq. ft. coverage per household. The average suburban single-family home on a half-acre, in contrast, will create 8,000 sq. ft. of impervious coverage per household.

The conclusion here is that working at the local level on developments that mitigate climate change leverages many other environmental benefits. These include stormwater management, water conservation and quality, public health, and natural resource conservation. Paris and the IPCC adopted mitigation strategies supported by sound theoretical underpinnings and turned the attention of policy makers and critical actors to the local scene. Basing climate change management strategies on a sound local footing leverages a range of other needed changes. It takes advantage of that level of government’s significant legal authority, which is in the hands of champions of change who will not abide other environmental perturbations.

See Champions of Change:  Reinventing Democracy Through Land Law Reform

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

Post 9:  Community Power and Renewable Energy

 

 

CFP: ABA Journal of Affordable Housing & Community Development Law: The Interconnections between Health and Housing

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

The Interconnections between Health and Housing

For its next issue the Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring the interconnections between health and the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include creative housing developments; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new developments, tell success stories, or explore problems relating to issue such as affordable independent/assisted living, aging in place, or in-home care, and propose legal and policy recommendations.The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme. 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at [email protected] by April 15, 2018. Submissions of final articles and essays are due by May 1, 2018. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 9: Community Power and Renewable Energy: A Series by John R. Nolon

 

This post is the penultimate issue in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Community Power and Renewable Energy

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

 

Community power is an emerging tool for implementing renewable energy technology. It is also a metaphor for the power of local governments to further or frustrate that resource.  Historically, land use regulations were more of a hindrance than a help. In some communities, the soft costs of renewable energy facilities, including the expense of securing local approval for wind and solar energy systems, remained high while the cost of the systems declined. In others, these facilities were simply zoned out. This is changing and the pace of change is rapid. 

The Pittsburgh Zoning Code defines distributed energy systems to include “a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers,” including renewable energy facilities. The source of power for Microgrids, which is incentivized by this zoning law, can be small-scale renewable energy systems, such as community solar systems and small- to mid-sized individual or clustered wind turbines or on-site solar panels.

Communities, like Pittsburgh, using their land use power, are mitigating climate change by defining the types of emerging sources of renewable power, permitting those sources in zoning districts, and some are requiring property owners to accommodate these sources or   creatively incentivizing them in a variety of ways.   The facilities supported by local land use laws can be called community power systems.

Distributed energy facilities are increasingly studied as part of land use planning, being called for in comprehensive plans, defined by zoning codes, and permitted in certain districts, either as-of-right, as accessory or secondary uses, or as special permitted uses. Larger, higher intensity systems can be permitted by zoning, but subject to protective standards. 

A few state legislatures have preempted local authority to regulate renewable energy systems, particularly large-scale projects that are subject to state agency regulation and licensing. But most mid-sized and smaller systems remain subject to local regulation under the plenary authority delegated to local government to control private development. This is understandable; the risks and impacts of energy systems are experienced first-hand locally by the residents of these communities.

When, for example, wind power companies first approach a community with a proposal to develop towers over 200 feet high, with blades nearly as long as a football field, neighbors naturally oppose them until their risks are understood and mitigated by regulation. Less dramatically, a proposal to cluster a few smaller towers to serve on-site needs or even a single wind turbine on a residential roof will meet opposition initially. Residents, particularly adjacent neighbors, are concerned about the noise, visual interruption, ice throws, the strobe effect, change of neighborhood character, and the consequent diminution of their property values. Since land use laws are based on intense democratic participation by the public, these risks have to be examined and, where they are well founded, reduced or eliminated.

Local governments typically begin the regulatory process by doing studies of wind generation systems, exploring both the risks and benefits, and memorializing their findings in a comprehensive land use plan amendment or adopting a land use policy.  They then define various types and sizes of wind energy systems and prohibit them in inappropriate locations and permit them in others, with needed safeguards.  These laws create spacing and set back requirements, limit or buffer noises, require aesthetic controls, and impose regulations on noise levels, viewshed interruptions, heights, location, size, lighting, color, or design. Some laws require local licenses and even provide for decommissioning.

Zoning for solar energy facilities proceeds in the same way. When the Land Use Law Center was retained to draft a model solar energy law for communities in New York, we started by working with industry representatives to understand the various types, shapes, intensities, and other characteristics of these facilities. We realized that building integrated systems are part of the structure itself and exempted them from land use regulation. Small scale roof-top and ground mounted systems were permitted as-of-right or as accessory uses, and larger scale systems were subject to special permits and site plan regulations.  

Most states have adopted the International Codes Council’s Energy Conservation Code as a baseline to conserve energy in new and substantially rehabilitated buildings.  State law in some states allows local governments to adopt enhancements to the state energy code that achieve even greater conservation. The New York State energy agency, NYSERDA, has circulated a draft “stretch code” that localities may adopt to strengthen energy conservation requirements locally.  Among its provisions is this: “New buildings shall comply with one of five standards including the use of on-site renewable energy with a total minimum rating of, for example, “not less than 1.71 Btu/hr/ft2…or 0.50 w/ft2 of conditioned floor area….”

NYSERDA has also promulgated the Unified Solar Permit (USP) to reduce costs for solar projects by streamlining municipal permitting processes. Local governments in the state may, and many have, adopted the USP. It applies to solar systems with a capacity of 12 kW or less that are not subject to architectural or historical review board approval, do not require a zoning variance or a special use permit, and that are roof-mounted, compliant with building and related codes, and meet mounting and weight distribution requirements.

Without assured access to the rays of the sun, property owners may be discouraged from installing solar panels because the cost of the systems may not be recouped over time if sunlight is diminished by development on adjacent parcels.  In most states solar easements or nuisance actions for blocking the sun’s energy are not recognized by common law. However, they can be created by local government regulation. Typically, these regulations require written and recorded solar easements that define easement dimensions, how the easement will terminate, and compensation for easement maintenance or interference, among other provisions. This is an especially viable technique when applied through subdivision regulations to new developments.

Some localities are requiring developers to install solar energy systems or, short of that, to make buildings solar ready. Other communities incentivize, rather than require, these solar facilities, typically by providing density bonuses for solar panels, solar readiness, and solar access easements.

Local governments have not yet fully transitioned from Zoned-Out to Zoned-In and fully facilitated community renewable systems, but the trend is definitely moving in that direction.

For solar power regulation, see Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation  

For wind power regulation, see Wind Power: An Exploration of Regulations and Litigation, https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1665&context=lawfaculty

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 8: Distributed Energy: A Series by John R. Nolon

This post is the eighth in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Distributed Energy - Lost in Transmission

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

When President Trump announced his epic decision to withdraw the U.S. from the Paris Accord, he quipped that he was elected to represent the residents of Pittsburgh, not Paris. His clever alliteration was hugely ironic.  Pittsburgh has long been a leader in mitigating climate change, using its local land use power and democratic processes to reduce energy consumption and fossil fuel emissions.  The City’s zoning code, in fact, aggressively facilitates one of the most promising mitigation measures, that of promoting distributed, or on-site, power generation.

In a previous blog, we reported that the most recent EPA Greenhouse Gas Inventory estimates that residential and commercial buildings emit nearly 40% of domestic CO2, consume over 70% of the electricity produced in the U.S., and are responsible for over 40% of total energy used.  Shockingly, two-thirds of the fuel used to generate electrical power in the U.S. is lost as escaped heat at the point of generation and in transmission. Many of our electrical generation plants are located at sites far removed from where the power is needed: where people live and work and industry operates.  Much of the energy lost to generate electricity for the conventional power grid can be saved by on-site or distributed energy generation.

Pittsburgh, apparently unbeknownst to President Trump, is a model smart city. In response to the U.S. Department of Transportation’s Smart City challenge in 2015, the City developed a plan to create innovative, interconnected infrastructure that responds efficiently and affordably to the transportation and energy needs of local residents. It implemented SmartPGH: a plan to integrate multiple interconnected systems including a “grid of micro-girds” that generate electricity on-site, greatly reducing the energy lost in remote generation and transmission.  

The Department of Energy’s R&D Program defines a microgrid as “a group of interconnected loads and distributed energy resources within clearly defined electrical boundaries that acts as a single controllable entity with respect to the grid. A microgrid can connect and disconnect from the grid to enable it to operate in both grid-connected or island-mode.” Microgrids can capture the heat used to generate power by converting it to energy needed to cool and heat connected buildings. This is called Combined Heat and Power (CHP). 

Microgrids usually operate at the scale of multiple buildings, a city block, or a larger neighborhood and are, therefore, ideally subject to local planning and regulation. They can be prevented or furthered by land use standards. At the local level, on-site generation and CHP facilities cannot be developed if not permitted by local zoning. Pittsburgh used its delegated power to adopt zoning and land use regulations to enable microgrids to develop. The City Council amended its municipal code to add a Performance Point System that incentivizes sustainable development. It awards developers density bonuses for points that they accumulate by developing sustainably, including the development of distributed energy systems such as microgrids.

For zoning to permit or promote a land use, it must define that use and specify where it may be located and how it is to be regulated or facilitated.  In one of the first such definitions of its kind, the Pittsburgh Zoning Code says: “Distributed Energy Systems shall mean a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers. These approaches include fossil and renewable energy technologies, micro-grids, on-site energy storage, and combined heat and power systems.” See Pittsburgh Zoning Code, Article VI Chapter 915, section  915.07C (7)

Pittsburgh enacted into law what the USGBC encourages developers to do to qualify for certification under the LEED-ND program.  That program points out that zoning can allow for district heating and cooling facilities, as well as solar and wind systems, to be installed in certain buildings or their sites; land use review protocols can be used to encourage owners to provide them, and density bonuses can be granted to provide a financial incentive for them.

As demonstrated here, many energy technologies and facilities cannot be built if they are not permitted at the local level by zoning.  Localities, like Pittsburgh, have the ability to incentivize energy conserving development through density bonuses and partnerships involving funds from local capital budgets.  Innovations in energy technology can be furthered and assimilated by an informed public that understands the seriousness of current problems and the feasibility of new solutions. Since zoning is required to be in conformance with a comprehensive land use plan developed with robust citizen participation, land use planning provides a valuable opportunity to engage and inform the public.

See Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Pace Law seeks graduate fellow / LLM applications for Land Use Law Center

The Land Use Law Center at Elizabeth Haub School of Law at Pace University in White Plains, NY is seeking a graduate fellow for next academic year. During the fall and spring semesters, the Fellow will work half-time with the Center on its cutting edge projects, while completing requirements for an LLM in Land Use and Sustainable Development Law.  Compensation for this position includes the full waiver of tuition and a modest stipend.  The School is ranked as one of the top three law schools in Environmental Law. The Land Use Law Center celebrates its 25^th anniversary this year as one of the most active and well-known legal centers of its kind.  The Center has helped create frameworks for sustainable development, local environmental, and low carbon land use law and conducts research and field work in nearly all aspects of sustainable development, with current projects in public health, resilience, urban revitalization, gentrification, distressed property remediation, agricultural land preservation, renewable energy, watershed conservation, green infrastructure, green buildings, the sharing economy, and transit oriented development.

Please encourage interested 3Ls to consult the program’s requirements. 

Land Use and Sustainable Development LLM Graduate Fellow: https://careers.pace.edu/postings/4656

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 7: The Land Use Stabilization Wedge: Sequestration: A Series by John R. Nolon

[This post is the seventh in a series. See below for links to previous issues.]

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

The Land Use Stabilization Wedge: Sequestration

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

The green edge of the land use stabilization wedge is the biological sequestration of CO2.  It occurs within the vegetated environment: resources such as forests, pastures, meadows, crop lands, urban trees, and green infrastructure. These landscapes naturally absorb and store approximately 15% of domestic CO2 emissions. Perpetuating and expanding the sequestering environment is fundamentally a land use issue, one that is well within the capacity of land use law to address.  

The previous blog on transportation described how shaping human settlements to promote walkable, livable communities directly mitigates climate change by reducing vehicle miles travelled and energy consumed in buildings. Compact, mixed-use and sustainable neighborhood development promoted by land use regulations are, therefore, essential strategies for lowering emissions. Fortunately, they also promote biological sequestration. Such development attracts population growth to urban places by creating healthy neighborhoods for living, working, and recreating, which preserves existing open space in outlying areas.  One estimate calculates that doubling urban density alone would accommodate the entire projected population increase by mid-century, thereby saving an area the size of Connecticut – and all of its sequestering resources -- from development.

Strategies that create green infrastructure in developing and developed places, while adding marginally to sequestration, are necessary if urban communities are to attract additional residents and workers.  They are essential adaptive techniques as well. In developed cities, for example, tree canopies can be increased; green infrastructure added; urban gardens promoted; and buildings oriented to cool living environments, lessen the heat island effect, make cities attractive places to live, and soften the effects of higher densities

If urban places do not accommodate population growth, outlying lands become targets for residential and commercial development.  In these places, land-use law can be particularly effective in designating and protecting lands that sequester carbon. As suburban subdivisions are developed, they can be better situated into the existing vegetated landscape through thoughtful land use regulations. Furthermore, local governments can shape suburban and ex-urban land development to reduce land coverage and impervious surfaces, limit flooding, retain and add vegetation, protect community character, and prevent ground and surface water pollution. Together, such strategies limit development densities and tend to push population growth back toward developed centers and corridors.

Municipal governments in suburban and ex-urban areas have a long history of concern for the loss of open space and eco-system services to encroaching development.  Decades-old local open space preservation laws and programs yield a number of strategies that can now be employed as sequestration techniques These include standards regarding environmentally sensitive area designation, erosion and sedimentation control, grading, filling, drainage, soil disturbance, removal of vegetation, floodplains control, natural resource management, watershed, groundwater, watercourse, and wetland protection, landscaping requirements, ridgeline, steep slope, scenic resources, shoreline regulation, stormwater management, timber harvesting regulations, tree protection and canopy expansion, and the transfer of development rights from lands to be preserved to developable areas.

Most local environmental laws and natural resource protections of this type are enacted because of perturbations at the community level: the loss of a treasured viewshed, the gradual decline of visible open space, surface water or groundwater contamination, increased flooding, or the disappearance of treasured wildlife, among others. These disturbing influences motivate local stakeholders, and their elected officials to act to address their causes.  As a result, local governments are becoming increasingly reliable partners in the global effort to manage climate change. 

This comes at a critical time.  Local legal strategies that preserve and enhance the sequestering environment now have a place on the global stage due to the advent of Nationally Determined Conditions (NDCs) in the Paris Agreement of the 21^st Conference of the Parties. NDCs include contributions to climate change mitigation adopted by local governments that can be counted toward participating countries’ efforts to achieve international climate mitigation goals.

See Managing Climate Change Through Biological Sequestration: Open Space Law Redux

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Mulvaney: Non-Enforcement Takings

Tim Mulvaney (Texas A&M) has a new article, "Non-Enforcement Takings," now available on SSRN.  Here is the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.

The best law review article on California's housing crisis too few people are reading

If you want to read just one article that will explain to you the most significant problem for building housing in California, it should be Jennifer Hernandez's article, "California Environmental Quality Act Lawsuits and California's Housing Crisis," which was published in the Winter, 2018 edition of the Hastings Environmental Law Journal.  Hernandez is among a handful of leading CEQA lawyers in the state.  Her empirical article reviews all CEQA lawsuits in the State and offers a compelling conclusion:

[I]n recent years most CEQA lawsuits filed in California seek to block infill housing and transit-oriented land use plans, as well as public service and infrastructure projects in existing California communities. Most of the challenged projects are precisely the types of projects and plans that today’s environmental and climate policies seek to promote.  The most frequent targets of CEQA lawsuits typically are required to undergo a rigorous environmental analysis and public review process that takes 18 to 36 months or longer. This process involves an Environmental Impact Report and at least three rounds of public notice and comment before being eligible for approval by public votes of elected officials. Projects without the ample economic resources required to pay all costs (including technical and legal experts) are never eligible for an approval, and thus cannot be sued under CEQA. Even the types of infill projects most commonly sued under CEQA that are not ultimately sued must undergo three rounds of costly administrative proceedings: (1) local agency staff, (2) appointed planning commissions, and (3) elected city councils or boards of supervisors; planning commission and elected council or board approvals require majority votes from officials who are themselves elected and appointed based on majority votes from elections.

In other words, while CEQA remains an important and vital environmental tool, it has also become a tool abused to make urban housing projects--the kind needed to address the housing crisis--expensive and time-consuming to entitle even when no lawsuit is filed.  Several important charts from Hernandez's article are reproduced below, and tell a remarkable story.

 Most CEQA lawsuits are aimed at infill projects.

 The greatest target of CEQA lawsuits are not typically environmental in nature; rather, they attack multi-family and condo projects.

In LA, which is the region that has California's highest percentage of CEQA lawsuits, a staggering 70% of CEQA lawsuits target TOD / high density housing.

 

CEQA lawsuits also have a racial and class component to them, as well.

 

All in all, if you want to understand the housing affordability crisis in California, you should drop everything and read Hernandez's article now.  As a former California land use and environmental lawyer myself, I can saw that Hernandez's article is the only thing I've read about the housing crisis in the Golden State that makes sense.  It provides a way to address key structural problems without doing harm to much of the innovative land use regulation that makes the state a place where people want to live.