When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law

60 Pages Posted: 14 Dec 2021 Last revised: 26 Jun 2023

See all articles by Christopher S. Elmendorf

Christopher S. Elmendorf

University of California, Davis - School of Law

Timothy G. Duncheon

Covington & Burling

Date Written: July 25, 2022

Abstract

This paper explores the slow-motion collision between two statutes at the center of California’s housing crisis: the California Environmental Quality Act (CEQA) and the state’s Housing Accountability Act (HAA). Each statute has a bona-fide claim to being a “super-statute,” one which exerts a “broad effect on the law.” Yet the two statutes came of age in different eras—CEQA in the 1970s and the HAA in the 2010s—and have fundamentally different institutional and normative premises. After tracing the evolution of the statutes, we explore two problems at their intersection: (1) cities’ use of endless CEQA review to launder the denial of housing projects that the HAA means to protect; and (2) analytical confusion about the proper scope of CEQA review for HAA-protected projects. We propose solutions that harmonize the two laws, remaining faithful to the text and purpose of CEQA while fulfilling the HAA’s instruction that it be interpreted “to afford the fullest possible weight to the interest of . . . housing.” But our solutions are not inevitable. In another possible future, CEQA runs roughshod over the HAA, crippling California’s efforts to provide more housing and, ironically, to respond to the threat of climate change. We hope this paper’s intervention makes that dismal future a bit less likely.

Keywords: land use, housing, planning, zoning, statutory interpretation, administrative law, bad faith, pretext, super-statute, property, environment, environmental review

Suggested Citation

Elmendorf, Christopher S. and Duncheon, Timothy, When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law (July 25, 2022). Ecology Law Quarterly, Vol. 49, 2022, pp. 655--713, Available at SSRN: https://ssrn.com/abstract=3980396 or http://dx.doi.org/10.2139/ssrn.3980396

Christopher S. Elmendorf (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-5756 (Phone)
530-753-5311 (Fax)

Timothy Duncheon

Covington & Burling ( email )

415 Mission St Ste 5400
San Francisco, CA 94105
United States

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