Environmental Review and the New Urbanism

Lots of folks, including myself, are interested in making US cities more walkable, transit-oriented places to live, and observe that the current spate of land use regulations often makes this impossible.

(Note to critics: if you argue against New Urbanism by saying that people don’t want to live in New Urbanist communities, then that means you are in favor of it. New Urbanism is, for the most part, a deregulatory strategy. New Urbanists don’t like parking regulations because they increase auto dependence. Instead, they/we want to let the market handle parking demand. We believe that people do want to live in New Urbanist communities, at least far more than can do so now. So the argument is to let the market work it out. Sometimes it’s useful to take yes for an answer, guys.).

But we need to provide more specifics to a wider audience. Well, here’s one: environmental review.

About 28 states have what are called “little NEPA” statutes, which require some sort of environmental review for development projects. The most demanding and comprehensive, like the California Environmental Quality Act (“CEQA”), and similar statutes in New York, Washington, and Michigan, apply to private projects and require mitigation of environmental harms.

So what’s so anti-urbanist about that? Lots, given the way it’s been developed. Let me give two examples.

Traffic. New projects will often create more traffic, because people want to get to retail stores, or more dense housing. So what does typical environmental review do? It analyzes the impacts according to what’s called “Level of Service,” or “LOS.” Traffic backups lead to lower LOS. So what does mitigation consist of? Widening the streets, and making it more difficult for there to be obstacles to traffic–like pedestrians. Parking works the same way. Lack of parking is seen as an environmental impact, so you mitigate it by adding more parking spaces and making the area more auto-dependent.

Smart planners like Jeff Tumlin at Nelson/Nygaard have been pounding on this for years. We need to use more sophisticated traffic models to grapple with broader environmental impacts, not just use LOS counts.

Cost. Most little NEPA statutes require environmental review any time a local government takes an “action” that can have a “significant effect on the environment.” That sounds straightforward, but it could actually stand in the way of doing good planning. Why? Because if a city is going to write a new planning ordinance, or take small steps to make more walkable communities, it will need to do environmental review. That means writing an Environmental Impact Report, and that costs money–often, a lot of it. Here in Los Angeles, planners routinely turn down good planning opportunities because there isn’t money in the budget to do the EIR. (This in spite of the wonderful being done by the city’s planning director, Gail Goldberg.). Essentially, environmental review has helped to freeze in place bad regulations from previous decades; that’s especially true in states like California with a dysfunctional state-local fiscal relationship.

A bill working its way through the California Legislature, SB 375, tries to change this by essentially trading procedure for substance: if cities adopt a “sustainable communities strategy” that guides growth in a more compact form, then projects are exempt from either part or all of environmental review. In typical fashion, conservatives have opposed it because–well, we don’t really know, but they do. (More about this in an upcoming post).

The environmental movement began in large part as a way of stopping development and protecting wild areas. As the movement has matured, many are realizing that new tools are necessary. Environmental review is a place to start.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.