We hope this Article serves as a useful reminder that super-statutes aren’t super for all time. In 1970, in the wake of massive construction projects and rapid development across California, it was reasonable to believe that slowing construction down would help the environment. The foundational CEQA cases were decided accordingly. But today, barriers to development in high-demand places have made housing wildly unaffordable where people want to live, exacerbating socioeconomic and racial inequality. These barriers also undermine today’s environmental goals by pushing new housing to fire-prone inland areas from which residents must commute for hours in carbon-spewing cars. In strengthening the HAA, the legislature rejected many of CEQA’s normative premises in the context of housing. Courts should take heed.
This Article argues that litigation, when deployed critically and strategically, can have important material and cultural benefits for social movements. The Cricket Hollow Zoo campaign vividly demonstrates litigation’s positive direct and indirect effects. At the same time, the case study illustrates some of the risks and limits of relying on legal tools to achieve social change.
In 2021, Wisconsin’s supreme court rejected the notion that Act 21 alters the DNR’s broad and explicit statutory charge to act as a trustee of the state’s waters, as written into sections 281.11 and 281.12 of the Wisconsin Statutes. The interviews with Water Specialists and their supervisors demonstrate that these mission-orientated staff are ready to protect public rights in water, but that their ability to do so is limited by a lack of sufficient resources and authority. Passionate people in key positions are not enough to protect public rights in the state’s waters; agencies need sufficient staff, time to conduct site visits, and statutory authority to regulate in ways that fulfill trustee obligations
Going forward, both formal regulation and informal mechanisms are needed to create better accountability for large-scale environmental technology solutions. Despite the potential consequences, new technologies hold real promise for improving ecosystem health and environmental management globally. Many potential features could improve governance of these technologies, but it is essential that innovation be allowed to continue without being subject to stifling bureaucratic processes. Improving accountability for emerging technologies should be the cornerstone of new, flexible approaches to evaluate the risks and benefits of emerging technologies in the environment.