Anti-immigration activists, a Los Angeles oil and natural-gas company, historic preservationists, and bird enthusiasts make for unlikely bedfellows. But in recent years, they’ve all embraced the power of decades-old environmental laws—not to protect the environment but to defend the status quo.  

Stick with me here. Signed into law in 1970, the National Environmental Policy Act and its state and local equivalents require federal agencies to assess the environmental effects of major projects before they sign off on them. Supporters argue that NEPA “empowers local communities to protect themselves and their environment.”

But NEPA is more burdensome than it may sound. As the economist Eli Dourado has documented, environmental-impact statements were initially very short—just 10 pages, in some instances. But now they average more than 600 pages, include more than 1,000 pages of appendices, and take four and half years on average to complete.

[Jerusalem Demsas: Not everyone should have a say]

How did this happen? Lawyers—the answer is always lawyers. Over time, the courts have embraced more and more expansive definitions of what these statements should cover. And lawyers—terrified of getting their clients caught up in lengthy court proceedings where a judge tells them they should have thought through the fourth- or fifth-order impacts of an apartment building—spend eons fleshing them out. The goal is not to mitigate environmental ill effects but to get an A+ for thoroughness.

Listen, some of my best friends are lawyers. But development is supposed to flow through the democratic process, which elects mayors, city-council members, state legislators, and governors to decide what to build and where. Subordinating that to an adversarial legal process is by definition subordinating the voting public to the small group of people with the time, resources, and incentives to sue.

Putting more abstract concerns for democracy aside, in practice, NEPA and related laws have evolved not to hold governments accountable for protecting the environment but to provide organized interests with yet another tool to stymie government action. And by action, I mean anything.

Let’s return to our unlikely bedfellows.

The Massachusetts Coalition for Immigration Reform’s innocuous name belies its anti-immigration position: Just scroll through its Twitter account for a flavor. Recently, it sued the Biden administration for failing to conduct a NEPA analysis when it expanded refugee programs, suspended construction of President Donald Trump’s border wall, and enacted various other immigration policies that it says have increased illegal immigration.

One of the plaintiffs in the coalition, who has a cattle ranch near the southern border, contends that border crossers have “set fire to land he leases and left trash, campsites, and blankets in their wake,” and that “his heightened awareness of trespassers on and around his land has impaired his enjoyment of the outdoors.” In August, the U.S. District Court for the District of Columbia dismissed some of the coalition’s claims but decided that the challenges to the refugee program and the border wall, among others, could proceed.

The L.A. City Council voted unanimously in December to end oil drilling, a decision hailed as a “historic move in a city that was built by a once-booming petroleum industry.” But Warren Resources, a privately held oil and natural-gas exploration and production company, sued in January, claiming that L.A. had violated the California Environmental Quality Act, the state’s version of NEPA, because its environmental-impact statement was inadequate. Reading the lawsuit is mildly disorienting—the plaintiffs argue that banning oil drilling will increase greenhouse-gas emissions, and they also assert that L.A. is “depriving the public of an opportunity to meaningfully comment on the measure and its feasibility.” Apparently, a unanimous vote by an elected body is not a meaningful comment. So much for democracy.

In 2019, Minneapolis housing advocates argued that the way the city zoned for housing perpetuated economic and racial segregation, and pushed for a plan that would legalize more affordable housing. The city responded by eliminating single-family-only zoning, allowing for duplexes and triplexes on lots throughout the city. I suppose you know where this is going. Invoking Minnesota’s state environmental law, passed concurrently with NEPA, the Audubon Chapter of Minneapolis and the Minnesota Citizens for the Protection of Migratory Birds sued to block the rezoning effort, claiming that the city hadn’t considered the environmental harms of higher-density living. Never mind the research showing that higher-density living is actually beneficial for the environment. “If this ruling establishes precedent … anti-housing groups could very well challenge any comprehensive plan they don’t like on vaguely environmental grounds, forcing cities into years of litigation and zoning chaos,” a local scholar warned.

The University of California system has repeatedly weathered criticism for admitting students without providing sufficient housing options. As the Los Angeles Times reported, 9,400 students “were denied university housing [in 2022] because of shortages,” which pushed some into homelessness. UC Berkeley sought to address this crisis by building housing for 1,100 students. But local homeowners and historic preservationists sued to block the development, citing, among other concerns, the potential environmental impact of “loud student parties.” A judge recently ruled in the homeowners’ favor, acknowledging the legitimacy of this concern. Is this what environmental protection means now? Shielding the ears of wealthy California homeowners who knowingly moved next to one of our nation’s preeminent universities?

The concept of pollution has apparently stretched to include not just toxic waste and carbon-dioxide emissions but also any potential change to quality of life—an insidious shift that groups students into the same category as oil and natural gas. When asked where the students should go, a local leader suggested a satellite campus miles away from Berkeley, which, the San Francisco Chronicle points out, would “create even more extreme environmental impacts in a neighboring community—one that lacks the public transit and other sustainable infrastructure that Berkeley does.”

Seemingly in an attempt to avoid censure, the court’s opinion begins by almost pleading with the reader to recognize that “we do not take sides on policy issues. Our task is limited. We must apply the laws that the Legislature has written to the facts in the record.” The judges add that the defendants don’t have to abandon their plan to build student and low-income housing; they only need to go back and fix their proposal: “Ultimately, CEQA allows an agency to approve a project, even if the project will cause significant environmental harm, if the agency discloses the harm and makes required findings.”

This is all a game. And the winner isn’t the public or the environment. It’s the status quo.

The status quo can be preferable to a proposed alternative. I readily admit that these environmental laws stop environmentally damaging projects. But I’m skeptical that the broad hammer of status-quo protection actually prevents more damage than it causes.

See, for example, the federal government’s permitting dashboard. It shows many more planned or in-progress renewable-energy and electricity-transmission projects than fossil-fuel projects. This shouldn’t be all that surprising, given the decades of political activism highlighting the harms of carbon emissions, the surge of investments in clean technology, and the grim reality that we’ve already built a lot of fossil-fuel infrastructure. But the larger point is that we have many more clean-energy projects than dirty-energy projects that could be slowed or derailed by NEPA.

[Conor Friedersdorf: The environmental laws hindering clean energy]

We now know that unless we build quickly and cheaply, we are slated to lose out on much of the climate benefits that clean technology offers us. Advances in solar and wind power are meaningless if we don’t have the political capacity to build the infrastructure that gets that energy to our homes and offices.

But even if I’m wrong about the balance of harm, what’s clear is that the answer to the question “What’s best for the environment?” is not necessarily guiding the answer to the question “What should we build?”

The egregious cases above illustrate how these laws can be weaponized for ugly ends by unsympathetic actors. Yet, after sitting through countless community meetings and reading thousands of public comments, I’ve noticed that opposition to local projects doesn’t always come from an easily caricatured millionaire homeowner; typically, it’s from people of all sorts who are afraid of change. These status-quo defenders are often asking for the impossible: for someone to tell them exactly how their lives will look in the future. How will this affect my commute? What kinds of neighbors will live near me? And in their fear, they ask for caution, for further study, for more deliberation. They ask for time.

Caution and deliberation are good in moderation, but waiting cannot relieve this uncertainty; it merely changes its form. Doing can cause harm, but not doing won’t preserve the world in amber. Neighborhoods in desirable communities that don’t build more housing see skyrocketing prices and demographic shifts toward high-income, white, and older residents. And nations that don’t build the necessary renewable-energy infrastructure will be subject to the very environmental degradation that 20th-century activists tried so hard to prevent.

The unforeseen consequences of blocking change should weigh as heavily as the ones that come from allowing it. Those lost students, missing refugees, absent neighbors, and failed government projects may never intrude on our sight line or cause us frustration during our commutes, but they cost us all the same.

US District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, is overseeing a high-profile challenge to the FDA's two-decade-old approval of certain drugs used to terminate a pregnancy. CNN's Jessica Schneider reports.

Give President Joe Biden democracy, self-rule, and statehood for Washington, D.C. But not yet.

Yesterday, Biden announced he would not veto Congress’s override of a new criminal code for D.C. passed by its city council. “I support D.C. Statehood and home-rule—but I don’t support some of the changes D.C. Council put forward over the Mayor’s objections—such as lowering penalties for carjackings,” Biden tweeted. “If the Senate votes to overturn what D.C. Council did—I’ll sign it.”

If you support self-rule for jurisdictions only so long as they do not make choices you oppose, you do not actually support self-rule. The bill is meant to streamline and update D.C.’s criminal code; the city council passed passed it unanimously, despite Mayor Muriel Bowser’s opposition. Bowser said she agreed with “95 percent” of the bill, excepting some of its lower maximum penalties for certain crimes and its expansion of jury trials to include misdemeanors, arguing that the latter would overburden the system.

[Anne Applebaum: A real place deserves real rights]

The changes to the city’s criminal code are, as Slate’s Mark Joseph Stern writes, much less dramatic than advertised. For example, the bill “lowers penalties for carjacking” in the sense that it changes the maximum sentence from a never-imposed 40 years to 24, which is still a very long time, and to which years can be added based on other potential offenses associated with the same crime. Some Senate Democrats are expected to vote to overturn the D.C. law, an indication of just how seriously they take their own rhetoric about democracy. One need not believe that the changes are a good idea to find this appalling. That’s how democracy works: Sometimes the people make the wrong choice. The virtue of the system is that they make it, and it is not made for them.

Unfortunately, this is just the latest episode in a long history of the federal government’s contempt for D.C.’s right to govern itself. In the 1870s, the city became a haven for the newly emancipated after the Civil War, and extended suffrage rights to all regardless of race. But as Reconstruction ended, the city became the fiefdom of outright white supremacists who plundered it for profit and exploited its Black residents. In 1890, the former Confederate general, plantation owner, and Democratic senator John Tyler Morgan of Alabama took to the Senate floor to explain why D.C. could not be allowed to govern its own affairs.  

Now, the historical fact is simply this, that the negroes came into this District from Virginia and Maryland and from other places; I know dozens of them here now who flocked in from Alabama … They came in here and they took possession of a certain part of the political power of this District. There was but one way to get out—so Congress thought, so this able committee thought—and that was to deny the right of suffrage entirely to every human being in the District and have every office here controlled by appointment instead of by election … in order to get rid of this load of negro suffrage that was flooded in upon them.

As the reporters Tom Sherwood and Harry Jaffe wrote in Dream City, their history of Washington, D.C., “It’s impossible to dismiss the fact that raw discrimination against blacks was for years at the root of Congress’s relationship with the District of Columbia.”

Although the Constitution grants Congress power over the seat of government, the longstanding hostility toward the very idea of home rule in D.C. stems from the belief that Black people are incapable of governing themselves. In most cases, the rationales for denying representation to residents of the capital of a nation ostensibly founded on the idea that taxation without representation is tyranny have shifted to become more partisan than overtly racist, but some of them remain essentially Morganist. In 2009 Tucker Carlson said D.C. was not “ready for democracy,” because it had elected Marion Barry as mayor. Barry was an extremely common American type—a corrupt ethnic machine politician who was simultaneously an effective practitioner of patronage politics. But he was also Black; the alchemy of racism ensures that the flaws that transform Irish machine politicians into beloved and colorful characters turn Black machine politicians into proof of Black inferiority.

This argument, though, has persisted even as the city’s Black majority has become a plurality: D.C. cannot be allowed to govern itself, because its voters might make decisions its overlords do not like. In some states legislators who could not count to 20 without taking off their shoes make a show of passing idiotic and cruel legislation that violates their constituents’ most basic rights, but no one ever suggests that the voters who elected them be denied democratic self-determination as a result. The people of Washington, D.C., have no less a right to govern their own affairs than the people of Texas or Florida.

[Read: D.C. statehood is more urgent than ever]

Far from proving that D.C. cannot govern itself, Congress’s interference with the city illustrates the necessity of D.C. statehood, even as it exposes the underlying reasons that the dream of statehood remains remote. Without real federal representation, there is no one to stand up for the city’s interests in Congress, and those who make decisions about the District’s affairs are accountable to constituents elsewhere, who have no reason to defend the city’s interests or autonomy. The Republican commitment to “local control” is entirely superficial; I grew up in D.C. and live in Texas, and it is very clear to me that the principle applies only to GOP-run jurisdictions, which are mysteriously always deemed fit for self-governance.

The ease with which the Democratic supporters of D.C. statehood have been manipulated into parroting the arguments of pundits and politicians who support disenfranchisement is pathetic, but unsurprising: Because D.C. residents are disenfranchised, it costs Democrats nothing to look tough on crime by disregarding home rule. After all, what are DC residents going to do, send a Republican to the Senate?

D.C. deserves statehood because its residents, who outnumber those of Wyoming and Vermont, have their own political and cultural identity and have the same right as every other American to determine their own fate. The city’s residents should be able to govern themselves without interference from politicians looking to burnish their reputations with their performative contempt for the people who actually live and work there.

To those who say that D.C. statehood is simply a matter of naked partisan interest (as if the opposition to it is not), I would say that is also the reason we have two Dakotas. It was only a month ago that the Biden administration put out a statement urging Congress to “respect the District of Columbia’s autonomy to govern its own local affairs.” Until D.C. has the shield of statehood and federal representation, neither party has any reason to listen.