I live in Austin, and the state is currently pushing through a massive multibillion-dollar expansion of I-35 that will widen the highway to up to 22 lanes right through the heart of our city.
As someone deeply invested in pro-urbanism, I find myself in a frustrating philosophical no man’s land regarding this project. On the merits, I despise it: it is a 20th-century relic that ignores the perfect opportunity for high-speed rail connectivity between Dallas, Austin, and San Antonio. Yet, while I disagree with the project, I am also deeply skeptical of the legalistic mechanism being used to fight it.
The lawsuit filed to block the expansion represents a fascinating, if uncomfortable, intersection of interests. In this case, I see pro-urbanists—who want density and transit—sharing a foxhole with the NIMBY coalition. But as Bonica shows, "regulation by litigation" framework is a net harm to the very goals urbanists should be pursuing.
By using the courts to "gunk up the system," we are validating a legal gauntlet that is far more often used to kill the projects we do want. When we lean into procedural fetishism to stop a highway, we are sharpening the same blade that wealthy homeowners use to decapitate housing density and transit lines.
The I-35 project is a terrible plan, but is it illegal? Probably not. We cannot build a future of abundance if every project, even the bad ones, is destined to be litigated to death.
We want our $80 trillion back!! (see HCR today). Tax the bloated rich and restore the money we earned and were cheated of. 45 years of thievery is enough.
re: "By the time the California Supreme Court finally stepped in to clarify that drunk students do not constitute an environmental impact, millions had been added to the project’s cost and thousands of students had spent another year scrambling for a place to live."
This doesn't seem to be how it went. I read that: "...the The Supreme Court granted the Regents’ petition for review on these issues, and denied plaintiffs and appellants’ (“Good Neighbor’) petition challenging the Court of Appeal’s conclusions that enrollment-driven population increases were not part of the 2021 LRDP project and that the 2021 EIR therefore did not need to analyze an enrollment-limiting alternative.
"Following the Supreme Court’s grant of review, and during the pendency of the case in the high Court, the Legislature, on September 7, 2023, passed AB 1307 as immediately effective urgency legislation. The new law amended CEQA by adding two relevant new statutory sections intended to abrogate the Court of Appeal’s CEQA holdings. Public Resources Code section 21085 provides: “For purposes of [CEQA], for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”
So, the Legislature created CEQA. It was interpreted by the courts to apply to private development. The Legislature did not change that by clarifying CEQA back then if that's not what they meant. Then when the noise issue came up at UC Berkeley, it was the Legislature that corrected.
So maybe the judicial system isn't the problem it's made out to be here. Yes too much law is made by the courts but don't blame it on the courts. Blame it on the 'people's house' which can't get its @#$% together.
The legislature passing emergency legislation like this is best understood as either an unexpected or erroneous reading of a statute by a court that is likely to have severe negative consequences.
Also, the issue being raised in the article is not that the courts are making law. It's that we rely on the slow, cumbersome process of litigation for resolving too many issues which reduces efficiency, increases costs, and puts power into the hands of wealthy interests are better able to bear the costs of that litigation.
Nailed it! It wasn't the court that expanded CEQA, it was the legislature that wrote it poorly to begin with. That the legislators were, some of them, surprised by this interpretation only reflects that they aren't great legal minds, mostly they are just self-promoting realtors and whatnot. The legislature could have fixed CEQA at any time in the last half-century but hasn't. The reforms so far have only nibbled at the borders of it.
"Mostly they are self-promoting realtors and whatnot" characterization cheapens your case. Could it be that they simply reflect their constituents in this case-cities, neighborhoods, homeowners that "fear" losing the "sun" as you put it elsewhere and other disruptions? CEQA provides the only (in my understanding) time when those being impacted have a chance to have a say at the project level.
Also, I'm wary of anecdotal evidence when their aren't that many cases brought against housing projects.
Progressives once claimed to fight monopolies and trusts, but their true aim was always to expand government control and erode private property. Today, the “entrenched interest” they rail against is merely individuals exercising legitimate property rights. The real threat to society is not the owners of land or resources, but the state using its legal machinery to seize, regulate, or veto property under the guise of public good.
Liberty and progress come only from defending ownership and voluntary exchange, not from empowering bureaucrats to dictate what is or isn’t allowed.
But the point of the article is that most of the lawsuits come from people attempting to control what you do with your property in order to increased or preserve the value of their own. Not from the government doing it.
The point I was trying to make was that what progressives called ‘fighting monopolies’ was never about protecting the public—it was about giving the state more power over private property and that the real danger isn’t private individuals owning or controlling property—it’s the state stepping in to interfere. Genuine disputes over property should be resolved between the parties involved, not dictated or enforced by government coercion.
Teddy Roosevelt would strongly disagree. As would the rest of the trust busters, and the people who had to break up the monopolies of the late 1800s.
The supreme Court at the time would have agreed with you, which is why it spiked most attempted reforms until FDR. And history has come down strongly on FDR's side, given the economic outcomes and avoidance of both facism and communism.
Teddy Roosevelt and the trust busters may claim they were protecting the public, but in reality they were using government's coercive power to enable politicians and the politically connected to decide who could own or profit from property—decisions that should have been left to the owners themselves.
FDR went further, using the full force of the federal government to seize control over the economy, override contracts, and dictate outcomes that should have been left entirely to private parties. The real threat to property isn’t private owners or ‘entrenched interests’; it’s any state action that replaces voluntary agreements with politically motivated coercion.
Far from being a bulwark against fascism or communism, FDR’s policies trained citizens to accept government control over private property. This acceptance of coercive intervention fosters the very mindset that underpins both fascist and communist systems.
I've always thought that we need some type of track record for the credibility of plaintiffs, arising from my redistricting research. If someone's record is worse than that of a broken clock, such information ought to be taken into account in regards to dismissing a lawsuit early and paying the defendant for legal fees. We see this with the Trump administration suing everyone and everything, though it is simply the most visible example of a larger problem. Until penalties are applied to bad actors and some type of black listing - as you say - I do not think things will get better. In any case, an excellent and enlightening read that ought to be required reading in policy analysis and environmental law courses.
Why is it always "wealthy" homeowners? And "selfish" and "racist"? While many are house rich, how many are cash poor. Even to the extent that they spending down their equity?
The Little Hoover Commission out of Stanford released a report on CEQA last year. It lists the changes made to it by the legislature, and those that were attempted. So it's not the case that it's static. It suggests possible changes, including administrative but concludes that enough have been made by the legislature recently that a hiatus is indicated until the those made work through the system.
re: "Meeting minutes revealed the true motivation was a fear regarding property values and demographic change. The developer ultimately abandoned the project; luxury townhouses, which faced no opposition, were built instead.
"In another instance, a homeowner opposing a new apartment building argued that it would diminish the value of a Victorian he had renovated and hoped to convert into a bed-and-breakfast. Elsewhere, a group of neighbors raised concerns about the loss of sunlight, privacy, and parking, complaints the court bluntly categorized as personal NIMBY interests. Sometimes, this legal creativity borders on the absurd."
How shocking, how absurd that a homeowner would not want to lose sunlight; for their PV, garden, general health. How absurd that a property owner would worry about losing wealth. It's absurd to think of these as selfish personal NIMBY concerns., and anti-American. (Why wouldn't the takings clause apply here, not being a lawyer?)
How are any of these anything but a selfish personal interest? Why is it Anti-American to say that people who try to dictate what others can do with their own property are selfish? If you want to guarantee sunlight, you are free to contract with your neighbors to purchase that right. Takings clause does not apply because it requires more than just loss of sunlight.
I live in Austin, and the state is currently pushing through a massive multibillion-dollar expansion of I-35 that will widen the highway to up to 22 lanes right through the heart of our city.
As someone deeply invested in pro-urbanism, I find myself in a frustrating philosophical no man’s land regarding this project. On the merits, I despise it: it is a 20th-century relic that ignores the perfect opportunity for high-speed rail connectivity between Dallas, Austin, and San Antonio. Yet, while I disagree with the project, I am also deeply skeptical of the legalistic mechanism being used to fight it.
The lawsuit filed to block the expansion represents a fascinating, if uncomfortable, intersection of interests. In this case, I see pro-urbanists—who want density and transit—sharing a foxhole with the NIMBY coalition. But as Bonica shows, "regulation by litigation" framework is a net harm to the very goals urbanists should be pursuing.
By using the courts to "gunk up the system," we are validating a legal gauntlet that is far more often used to kill the projects we do want. When we lean into procedural fetishism to stop a highway, we are sharpening the same blade that wealthy homeowners use to decapitate housing density and transit lines.
The I-35 project is a terrible plan, but is it illegal? Probably not. We cannot build a future of abundance if every project, even the bad ones, is destined to be litigated to death.
We want our $80 trillion back!! (see HCR today). Tax the bloated rich and restore the money we earned and were cheated of. 45 years of thievery is enough.
Can we view your list of litigants and their classifications?
This essay is a masterpiece!
re: "By the time the California Supreme Court finally stepped in to clarify that drunk students do not constitute an environmental impact, millions had been added to the project’s cost and thousands of students had spent another year scrambling for a place to live."
This doesn't seem to be how it went. I read that: "...the The Supreme Court granted the Regents’ petition for review on these issues, and denied plaintiffs and appellants’ (“Good Neighbor’) petition challenging the Court of Appeal’s conclusions that enrollment-driven population increases were not part of the 2021 LRDP project and that the 2021 EIR therefore did not need to analyze an enrollment-limiting alternative.
"Following the Supreme Court’s grant of review, and during the pendency of the case in the high Court, the Legislature, on September 7, 2023, passed AB 1307 as immediately effective urgency legislation. The new law amended CEQA by adding two relevant new statutory sections intended to abrogate the Court of Appeal’s CEQA holdings. Public Resources Code section 21085 provides: “For purposes of [CEQA], for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”
https://www.ceqadevelopments.com/2024/06/10/supreme-court-holds-legislatures-case-driven-ceqa-amendments-require-judgment-upholding-uc-berkeleys-2021-long-range-development-plan-eir-and-peoples-park-housing-project-ag/
So, the Legislature created CEQA. It was interpreted by the courts to apply to private development. The Legislature did not change that by clarifying CEQA back then if that's not what they meant. Then when the noise issue came up at UC Berkeley, it was the Legislature that corrected.
So maybe the judicial system isn't the problem it's made out to be here. Yes too much law is made by the courts but don't blame it on the courts. Blame it on the 'people's house' which can't get its @#$% together.
The legislature passing emergency legislation like this is best understood as either an unexpected or erroneous reading of a statute by a court that is likely to have severe negative consequences.
Also, the issue being raised in the article is not that the courts are making law. It's that we rely on the slow, cumbersome process of litigation for resolving too many issues which reduces efficiency, increases costs, and puts power into the hands of wealthy interests are better able to bear the costs of that litigation.
Nailed it! It wasn't the court that expanded CEQA, it was the legislature that wrote it poorly to begin with. That the legislators were, some of them, surprised by this interpretation only reflects that they aren't great legal minds, mostly they are just self-promoting realtors and whatnot. The legislature could have fixed CEQA at any time in the last half-century but hasn't. The reforms so far have only nibbled at the borders of it.
"Mostly they are self-promoting realtors and whatnot" characterization cheapens your case. Could it be that they simply reflect their constituents in this case-cities, neighborhoods, homeowners that "fear" losing the "sun" as you put it elsewhere and other disruptions? CEQA provides the only (in my understanding) time when those being impacted have a chance to have a say at the project level.
Also, I'm wary of anecdotal evidence when their aren't that many cases brought against housing projects.
Progressives once claimed to fight monopolies and trusts, but their true aim was always to expand government control and erode private property. Today, the “entrenched interest” they rail against is merely individuals exercising legitimate property rights. The real threat to society is not the owners of land or resources, but the state using its legal machinery to seize, regulate, or veto property under the guise of public good.
Liberty and progress come only from defending ownership and voluntary exchange, not from empowering bureaucrats to dictate what is or isn’t allowed.
Your legitimate property rights do not include controlling what I am allowed to do with my property.
Correct.
But the point of the article is that most of the lawsuits come from people attempting to control what you do with your property in order to increased or preserve the value of their own. Not from the government doing it.
The point I was trying to make was that what progressives called ‘fighting monopolies’ was never about protecting the public—it was about giving the state more power over private property and that the real danger isn’t private individuals owning or controlling property—it’s the state stepping in to interfere. Genuine disputes over property should be resolved between the parties involved, not dictated or enforced by government coercion.
Teddy Roosevelt would strongly disagree. As would the rest of the trust busters, and the people who had to break up the monopolies of the late 1800s.
The supreme Court at the time would have agreed with you, which is why it spiked most attempted reforms until FDR. And history has come down strongly on FDR's side, given the economic outcomes and avoidance of both facism and communism.
Teddy Roosevelt and the trust busters may claim they were protecting the public, but in reality they were using government's coercive power to enable politicians and the politically connected to decide who could own or profit from property—decisions that should have been left to the owners themselves.
FDR went further, using the full force of the federal government to seize control over the economy, override contracts, and dictate outcomes that should have been left entirely to private parties. The real threat to property isn’t private owners or ‘entrenched interests’; it’s any state action that replaces voluntary agreements with politically motivated coercion.
Far from being a bulwark against fascism or communism, FDR’s policies trained citizens to accept government control over private property. This acceptance of coercive intervention fosters the very mindset that underpins both fascist and communist systems.
I've always thought that we need some type of track record for the credibility of plaintiffs, arising from my redistricting research. If someone's record is worse than that of a broken clock, such information ought to be taken into account in regards to dismissing a lawsuit early and paying the defendant for legal fees. We see this with the Trump administration suing everyone and everything, though it is simply the most visible example of a larger problem. Until penalties are applied to bad actors and some type of black listing - as you say - I do not think things will get better. In any case, an excellent and enlightening read that ought to be required reading in policy analysis and environmental law courses.
Why is it always "wealthy" homeowners? And "selfish" and "racist"? While many are house rich, how many are cash poor. Even to the extent that they spending down their equity?
Because they can afford the lawyers, we know they are wealthy.
The Little Hoover Commission out of Stanford released a report on CEQA last year. It lists the changes made to it by the legislature, and those that were attempted. So it's not the case that it's static. It suggests possible changes, including administrative but concludes that enough have been made by the legislature recently that a hiatus is indicated until the those made work through the system.
re: "Meeting minutes revealed the true motivation was a fear regarding property values and demographic change. The developer ultimately abandoned the project; luxury townhouses, which faced no opposition, were built instead.
"In another instance, a homeowner opposing a new apartment building argued that it would diminish the value of a Victorian he had renovated and hoped to convert into a bed-and-breakfast. Elsewhere, a group of neighbors raised concerns about the loss of sunlight, privacy, and parking, complaints the court bluntly categorized as personal NIMBY interests. Sometimes, this legal creativity borders on the absurd."
How shocking, how absurd that a homeowner would not want to lose sunlight; for their PV, garden, general health. How absurd that a property owner would worry about losing wealth. It's absurd to think of these as selfish personal NIMBY concerns., and anti-American. (Why wouldn't the takings clause apply here, not being a lawyer?)
How are any of these anything but a selfish personal interest? Why is it Anti-American to say that people who try to dictate what others can do with their own property are selfish? If you want to guarantee sunlight, you are free to contract with your neighbors to purchase that right. Takings clause does not apply because it requires more than just loss of sunlight.