Do New York’s bike lanes harm the environment? According to a lawsuit filed several weeks ago, they may. The suit comes from a former Libertarian Party candidate for state attorney general, Carl Person, and contends that because former Mayor Michael Bloomberg never completed an environmental impact report (EIR), a number of his lanes and pedestrian plazas are illegal and should be scrapped. According to New York Daily News, Person charges the roadway additions with “significant” environmental harm because they slow everyone down, which wastes gas.

His reasoning might sound like it belongs in the comments section of a regional newspaper, but he’s not the first person to use cherry-picked environmental concerns against a project with clear potential for decreasing vehicle emissions. And he’s not the first person to take those concerns to court, citing state and national EIR laws.

Last year, a San Diego-based group filed a suit with a nearly identical argument: that a road-diet re-stripe could stall traffic and threaten public safety. As Streetsblog’s Melanie Curry pointed out, that case resembled a 2006 suit from San Francisco. And back in New York, the infamous Prospect Park bike lane lawsuit made comparable claims.

Jennifer Hernandez is a San Francisco-based environmental lawyer who’s written extensively on the policies governing EIRs — and the ways they’re abused. She says that environmentally flavored lawsuits against infill and public transit projects are all the rage these days.

“You have a real, partly generational battle being played out right now,” she says, describing many of the suits’ instigators as anti-growth groups defending “the character of our neighborhood” and decrying the lost parking and upped density of transit-oriented development. Central to many of these scuffles are differing understandings of exactly what “environmental” law should do: decrease reliance on cars or, in Hernandez’s words, protect homeowners’ “private view from their bathroom windows.”

She associates the latter particularly with the Golden State’s EIR law, CEQA. A member of the statewide alliance advocating CEQA reform, Hernandez co-authored a 2013 report for the law firm Holland & Knight, where she is a partner, examining 95 cases from 1997 to 2012 (the report looked at plaintiffs who questioned an EIR’s validity, not whether an EIR should have been done in the first place, which is Person’s argument). Of all the projects that could be labeled either “greenfield” or “infill,” nearly 60 percent were infill. Public, not private, entities proposed nearly a third of the challenged projects.

Last year, Hernandez also co-authored an in-depth look at lawsuits under CEQA’s national counterpart, NEPA.

“Everywhere you have people trying to preserve the status quo, but do they go to court and win?” she asks. “In New York, agencies win all the time.”

But in California cities, they very well might not. Agencies in the Golden State win about 53 percent of the time, Hernandez says, while challengers win about 47 percent of the time. Plaintiffs have a good shot at slowing the development of environmentally iffy projects — big box stores, industrial polluters — but also neighborhood libraries, high-density housing and mass transit.

According to Michael Teitz, a professor emeritus of city and regional planning at UC Berkeley, the laws that mandate and govern EIRs are still important.

“The environmental community sees CEQA as an absolutely essential line of defense,” he says. “And there’s some truth to that — without CEQA it would be very difficult to defend against really egregious ways of plundering the environment.”

But as a paper he co-wrote in 2005 examines, the law’s piecemeal evaluation strategy (project by project, EIR by EIR) can encourage short-sightedness, particularly in the area of mitigation.

“[L]owering a residential project’s density might help mitigate traffic congestion or open space problems at the local scale, but when viewed regionally might only compound the problems if development is pushed to outlying areas,” the paper states. “If, instead of being displaced, the development fails to occur, then the so-called mitigation may compound housing shortages.”

In the years since Teitz co-authored that paper, California lawmakers passed SB 375, which does help streamline regional planning, and enacted a few minor CEQA reforms. In New York, a progressive DOT is busily re-striping city streets-, and in San Diego, an aggressive climate action plan calls for a transit remake.

Still, environmental litigation under EIR law remains. And in California, it’s still, often, successful.

Rachel Dovey is an award-winning freelance writer and former USC Annenberg fellow living at the northern tip of California’s Bay Area. She writes about infrastructure, water and climate change and has been published by Bust, Wired, Paste, SF Weekly, the East Bay Express and the North Bay Bohemian

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