Originally posted in the Minnesota Reformer.I understand the impulse of environmental advocates to defend the state’s environmental laws from change (Feb 10, 2023 Reformer commentary: “Court got it right on 2040 plan: Minnesota Environmental Rights Act provides essential protection to our resources”). Like Kevin Reuther, chief legal officer of the Minnesota Center for Environmental Advocacy, I believe that environmental legislation like the Minnesota Environmental Rights Act (MERA) plays an important role in helping to protect our state’s natural resources from being despoiled.
But it is precisely because of my support for these laws that I object to their misuse, and I would caution against a reflexive and reductive stance that any action brought under their auspice is worthy of praise. To meet the environmental challenges of today requires playing both defense (against attempts to degrade the natural world) and offense (against the unsustainable way that we have built our human infrastructure). An approach to environmentalism that focuses only on opposing harms is myopic and vulnerable to hijack.
To pick just a couple illustrative examples:
In California, state environmental laws were weaponized to stall San Francisco’s bicycle master plan for four years. In New Jersey and elsewhere, wealthy owners of beach houses have hidden behind theories of environmental damage to block offshore wind farms.
These lawsuits are not without cost. They impose a significant burden in time and resources upon defendants, which is often their purpose. Even when filed in demonstrable bad faith, they can be difficult to quickly dismiss. The lawsuit against the Minneapolis 2040 Plan is of a kind with these vain NIMBY attacks.
Even so, at least the lawsuit against the New Jersey wind farm challenged a discrete project that would have real benefits and real costs that could be measured and compared. The lawsuit against San Francisco’s bike plan, while less defensible, was still targeting a document that proposed specific projects and was authored by the entity with the power to implement them.
Compare these targets to the Minneapolis 2040 Comprehensive Plan, which is neither a real project nor a commitment to implement any real projects. As I explained several weeks ago (Jan 20, 2023 Reformer commentary: “The bizarre 2040 plan ruling that could jeopardize all comprehensive planning”) there are a number of reasons why comprehensive plans in particular are such a confounding target for environmental legislation.
These plans: 1. compile a wide variety of interrelated policies without the specificity required to implement them; 2. have unquantifiable impacts outside the borders of the municipality in question; 3. provide flexibility for a range of future outcomes but do not create them; and, 4. are never intended to be fully realized.
By ignoring these issues and insisting on evaluating the Minneapolis 2040 Plan on the basis of a “full and immediate build-out,” the courts have created a standard that is both unworkable and unrealistic.
In his commentary, Reuther defends the courts’ approach not by addressing these distinguishing features and practical hurdles but by joining the court in not acknowledging them.
Instead, he insists that municipal comprehensive plans are just like other types of plans adopted by other branches of government, such as woodland stewardship plans. According to this argument by analogy, the only thing that matters from the point of view of a MERA challenge is that a plan authorizes activities that affect the environment even if they do not cause those activities.
But this argument misses the fundamental point — the type of activities being authorized is of paramount importance. With cordage limits, there is no dispute; we are talking about how many trees are allowed to be cut down.
With municipal comprehensive plans, however, the scope of allowed activities is so broad as to be impossible to measure. Comprehensive plans deliberately leave many variables unknown and details yet-to-be-decided. Minneapolis is still debating how to implement the plan’s goals and policies today — four years after its passage. Within the framework of a comprehensive plan, one landowner might build a single-family mansion, another might build a triplex, and a third might build a pickleball court. The comprehensive plan allows for new skyscrapers downtown at the same time that it allows for the preservation of historic structures next door.
This is why the “full build-out” presumption is such quicksand. This is why municipal comprehensive plans are exempted from laws like the Minneapolis Environmental Policy Act (MEPA). This is why I suggested a narrow amendment to MERA that would specifically exempt them alone.
Let’s be clear — recognizing the impracticality of evaluating the environmental impacts of comprehensive plans would not exempt them from review by the Metropolitan Council, as mandated by state law. Nor would it remove specific and measurable land use decisions from judicial scrutiny. In a city like Minneapolis, land use changes are extensively reviewed, frequently revised, and often contested in court. There is no basis for Reuther’s fear that shielding planning from spurious lawsuits would prevent challenges against more tangible types of action.
In defending all lawsuits filed in the name of MERA, environmental groups like MCEA miss the forest for the trees. The city of Minneapolis developed the 2040 plan with the advice of experts in land use, transportation and the environment. The plan was ratified after an exhaustive period of public consultation and widely praised by environmental groups and advocates. There is no serious dispute as to the environmental benefits of urban infill, even though — as decades of climate denial has demonstrated — any sufficiently motivated and funded group can muddy the waters.
If we want our environmental laws to protect the environment and not just generate more employment opportunities for environmental lawyers, we should not be agnostic about what types of actions can be challenged.