Environmental Review as an Incentive for Parking Provision in New York and California: Moving from Conservatism to Conservation

Abstract

Cities across the country are debating whether to revise their zoning codes to eliminate or reduce requirements that new development include off-street parking spaces. These parking requirements are seen as among the most important factors in encouraging driving and increasing the cost of housing. However, the ongoing policy debate mistakenly proceeds under the assumption that these zoning-based parking requirements are the only way in which the government distorts the market for off-street parking. This essay identifies another mechanism by which the government encourages the over-supply of parking: the environmental review process. In New York and California, the two states with the most significant environmental review laws, the law considers diminished parking supply a negative environmental impact. Perversely, environmental review laws thus have had the environmentally harmful effect of encouraging motor vehicle use. The essay also uncovers administrative attempts to eliminate these perverse incentives, which have so far proven unsuccessful in the face of judicial resistance, and proposes paths to real reform through the administrative system, legislation and litigation.

This Note also enters into a broader debate about environmental review law generally. Both NEPA and state environmental review laws have been hailed as the foundations of environmental law and criticized as ineffective or even as counterproductive barriers to change. By looking deeply at a particular element of the environmental review process, this essay argues that environmental review’s chief flaw is its content-neutral, conservative stance. It argues that environmental review does not sufficiently distinguish between changes that serve ecological or environmentalist goals and those that do not; rather, it protects the status quo, whatever the status quo might be.

Keywords: Parking, Environmental Review, SEQRA, CEQA, CEQRA, Transportation, Environmental Law