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The Case of the Environmental Overachievers

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Gideon Kanner is professor of law emeritus at the Loyola Law School and a columnist for the National Law Journal

If you have been watching TV and you think that the scarlet pimpernel is an adventurous little flower that gets around, you ain’t seen nothin’ yet. When it comes to high-profile mobility and garnering publicity, the real achiever in the floral kingdom is the San Fernando Valley spineflower, whose deeds of derring-do are all the more remarkable because it’s extinct.

Usually, when a plant is extinct, it’s outta here, gone, kaput. But not in this area. Here, when a flower becomes extinct, that’s only the beginning of its career.

According to the newspapers, that li’l ol’ bugger keeps popping up all over the place. First, it was seen in 1993 on the site of the proposed golf course in the Big Tujunga Wash, although there it was called the “slender-horned” spineflower and pronounced merely endangered. The poor thing strove manfully (you should pardon the sexist expression) to throw its fibrous little body into the bulldozers’ path and stop the golf course from being built, but to no avail. I guess it must be hard to battle bulldozers when you’re extinct--or even endangered.

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Now, all of a sudden, the spineflower is at it again, according to the claims of local NIMBYs trying to stop the major housing development in the Ahmanson Ranch area. Not to be outdone by the anti-Ahmansonites, opponents of the Newhall Ranch project, fresh from a court victory in their environmental lawsuit, have also discovered the spineflower on their turf. What a coincidence! For an extinct plant, that little bugger sure gets around.

When it comes to such environmental overachievement, the spineflower isn’t alone. We are also admonished that the rare southwestern arroyo toad, though not extinct, is endangered so its habitat needs protection too.

And where is that habitat? Why, anywhere that people may want to build housing. It is claimed to cover the counties of Monterey, Santa Barbara, Ventura, Los Angeles, San Bernardino, Orange, Riverside and San Diego. That comes to a total of 44,318 square miles, which is almost three times the size of Switzerland, to say nothing of some other countries with United Nations memberships and standing armies. That’s some toad habitat.

Of course, there don’t appear to be all that many southwestern arroyo toads hopping around in that huge habitat; if there were, they wouldn’t be endangered now, would they? And so, unsurprisingly, the pitch is that we had best keep a lot of land in that vast habitat vacant just in case a toad shows up and decides to take up residence. Which is only logical. If one of those critters were to wander into, say, Carmel or Montecito, she’d surely like it there. I know I would, so why not a toad?

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What really gives one pause, however, is how all this transparently contrived pseudo-environmental nonsense about thriving extinct flowers and a vast toad lebensraum can be uttered with a straight face. But, hey man, it’s California. In the nuthouse of governance that passes for land-use regulation around here, anything goes, and anything gets swallowed sooner or later by gullible or intellectually dishonest zoning functionaries, politicians and judges. Which is not to say that honest efforts to protect truly endangered species should not be undertaken on the basis of sound scientific data. But the sort of intellectual jiggery-pokery that has been going on is about maintaining NIMBY privilege, not protecting the environment.

California law imposes a duty on local governments to so administer their land-use regulations as to assure that people’s housing needs are met. But when it comes to its enforcement, that “law” doesn’t quite rise to the level of a joke. New housing, particularly affordable housing, remains a highly disfavored use of land, with the result that California is in the throes of a slow-motion housing disaster, with only a fraction of the 250,000 new dwellings required annually to house this state’s population being built. And the dwellings that are being built are usually large homes located on the urban periphery that add to the sprawl, traffic congestion and air pollution. Unsurprisingly, what new housing becomes available is grossly overpriced as families desperate for shelter increasingly bid homes up to levels that are unaffordable to the majority of Californians.

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Whether we like it or not, in the coming years we will have to address the enormously difficult problem of providing essential new housing, without destroying the level of amenities that has made California the great human habitat it is. Whether this effort will succeed, given the expectations of a populace accustomed to overconsumption of housing as its birthright, and treating housing as an investment as much as shelter, remains to be seen. But one thing is clear: Babbling about proliferating extinct flowers in order to stifle construction of desperately needed housing makes us a laughingstock and in the long run will lead to intolerable social tensions and an economic disaster for all Californians.

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