When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law
47 Pages Posted: 14 Dec 2021 Last revised: 7 Mar 2022
Date Written: December 7, 2021
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
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