Environmentalists Attempt to Thwart Affordable Housing

E nvironmental litigation has reached such problematic levels that its underlying philosophy — NIMBY (Not in My Backyard) — should go by a new acronym, BANANA (Build Absolutely Nothing Anywhere Near Anyone).

Nearly everything now incurs the risk of environmental litigation, even projects most environmentalists would want to see move forward, such as wind turbines or high-voltage transmission lines. Reasonable people are left wondering: “What can still be built?”

A recent case in Minneapolis highlights the issue. It’s a lawsuit involving the 1971 Minnesota Environmental Rights Act, which states that “each person is entitled by right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within the state.” The environmentalist litigants in this case — Smart Growth Minneapolis and Minnesota Citizens for the Protection of Migratory Birds — don’t like the city’s development plan.

The city’s so-called Minneapolis 2040 plan would, among other things, increase population density compared with the previous plan. It also promotes affordable housing, and, ironically, it would reduce greenhouse-gas emissions. Various environmental organizations support it. But planning or building anything is a no-no unless you take great pains to answer every question raised by activists, at least according to the judge in the case.

Of course, environmental policy is all about trade-offs. Although protecting the environment is essential, we must consider the costs and human consequences of any environmental policy. If we want people to flourish, there’s no getting around one basic fact: We must shape the natural environment to improve our lives. Humanity has always done so to overcome the many deadly challenges it continuously faces (disease, starvation, extreme weather, etc.). Philosopher Alex Epstein talks about creating an “unnaturally livable” world — that’s the right goal.

Environmental litigation has come to hinder rather than help human flourishing. This trend of environment-first (or perhaps environment-only) policy takes a dogmatic approach to environmental preservation that makes it impossible to do just about anything.

And pro-environment litigants seem to have a lot of time and money on their hands. In a recent Montana case, a judge sided with the litigants and found that the state should abandon hydrocarbon fuels immediately for the sake of the children. The case hinged on a provision in the state constitution enacted in 1972 that provides: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

The pattern is clear. Activists are using laws from the 1970s to sue the projects and policies they dislike into oblivion. But such laws were a response to the poor environmental practices at the time. Unfortunately, they set up a paradigm by which we now enforce environmental protection at all costs — and the costs of these policies likely outweigh any additional benefits they bring.

The distributional impacts of environmentalism are worrisome as environmental litigation often harms people who need the most help. In the case of Minneapolis and the 2040 plan, concerns that population density will increase hard surfaces and runoff water have won in court against the city’s goal of providing affordable housing. In the Montana case, the judge endorsed a future in which one of the country’s least populated and largest states would, for example, embrace electric vehicles. “Range anxiety” and the lack of affordable transportation for those who desperately need to get to work are human problems that we cannot see when we focus on environmental impact alone.

Entrepreneurs and other agents of human progress may find themselves ill equipped to navigate these legal mazes. Legal fees, the time involved in court proceedings, and the uncertainty created by yearslong legal battles can deter valuable activities that would benefit everyone. We may not even know what we’re missing out — without a legal sword of Damocles over their heads, large businesses could invest in new projects or research and development; smaller companies or individual entrepreneurs could innovate and blaze new trails; city councils could pursue novel solutions to reduce housing costs.

The BANANA philosophy saddles our doers and creators with an immense legal burden, leaving us with slower economic progress and fewer innovations.

Policy-makers should reevaluate dated laws that are enabling litigation against virtually every kind of proposed development. We need a balanced system that encourages responsible environmental practices while avoiding excessive litigation burdens. It’s undeniable that citizens and public-interest organizations have a right to challenge harmful environmental practices. But today’s environmental lawsuits have become a tool that could prevent any new project, slowing down our progress to a cleaner and more prosperous future.