Changing the Plan: The Challenge of Applying Environmental Review to Land Use Initiatives

Abstract

This article examines the tension between the environmental review process and the initiative process in land use decision-making. While the environmental review process deliberately imposes constraints on decision makers enacting laws, the initiative process is intended to eliminate constraints on voters' ability to directly enact laws. As a result, states have made a trade-off: either land use decisions can be made by initiative but environmental review laws do not apply, or environmental review laws apply to land use decisions but those decisions cannot be made by initiative.

This article contends that both versions of the trade-off are problematic. The first results in a double standard: a land use regulation passed via ballot initiative is entirely exempt from state environmental review laws, even though the exact same regulation, if passed legislatively, would be subject to those laws. The second results in voter disenfranchisement: environmental review is preserved, but at the cost of barring voters from using the initiative for land use issues that may literally be in their backyards.

Using the contrasting approaches of California and Washington as a lens to focus the analysis, this Article provides a comprehensive analysis of the textual, structural, and policy justifications underlying the trade-off. The Article challenges the assumptions about the incompatibility of the two processes, and suggests that modifying each process to accommodate the other better reflects the balancing of interests at the core of land use law.

Keywords: land use, zoning, election law, local government, environmental law, CEQA