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Friday, March 24, 2023

The ‘Green Amendment’ is well-intended — but that’s not enough – The Nevada Independent

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Supporters of AJR3, also known as the “Green Amendment,” want to protect Nevada’s water, air, and climate. Who could be against that?

Before you ask — no, not me. I might have some deeply unpopular opinions on feral horses and high-speed trains, but even my reflexive contrarianism has its limits. I drink our water, breathe our air, and live in our climate, too. Given a choice between having clean water, air and so on versus not, well, it’s not a hard choice. Who wouldn’t prefer to live in a healthy environment?

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Despite the comparative abundance of open space in our state, that’s not a theoretical question. Nevada’s legislators aren’t trying to gild and protect a largely pristine and untouched lily — on the contrary, as one of The Nevada Independent’s recent fact briefs points out, Nevada is one of the most polluted states in the country. Nearly 200,000 Nevadans drink from largely untested and untreated domestic wells, many of which are heavily contaminated with arsenic and other heavy metals — and that’s just what nature itself adds to our groundwater. On top of that, Nevadans have also added hydrocarbons and other pollutants to some of our groundwater supplies — including the groundwater supply for Owyhee Combined School on the Duck Valley Shoshone-Paiute Indian reservation, inadvertently poisoning generations of rural schoolchildren with cancer-causing chemicals.

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There’s a reason the primary sponsor of the “Green Amendment” is Assemblywoman Sarah Peters (D-Reno) — she’s an environmental engineer who’s spent her career cleaning up Nevada’s environment. She is, to borrow and paraphrase a well-worn writing maxim, legislating what she knows. Her desire and ability to do so is a rare credit to our part-time citizen Legislature, which far more often than not seats well-heeled lawyers, ranchers and real estate agents instead.

Unfortunately, policy outcomes don’t care about our intentions. It’s not enough to mean well, even if you’re a subject matter expert.

Being a subject matter expert, in fact, sometimes makes it considerably more difficult to draft effective policy. When you’re a subject matter expert, the “natural, cultural, scenic and healthful qualities of the environment” — which AJR3 would presumably protect once ratified — all likely refer to something technically specific.

When it comes to nature, for example, I suspect Assemblywoman Peters means something closer to a carefully guarded desert oasis than, say, a golf course. When it comes to culture, I suspect Assemblywoman Peters means something closer to Avi Kwa Ame or the various petroglyph sites scattered near the edges of the Truckee Meadows than the various artifacts and pollutants 19th century miners left behind near Virginia City. When it comes to scenery, I suspect she’s thinking more along the lines of the stunningly beautiful stretch of the Sierra Nevadas near Kingsbury Grade than the alfalfa fields they overlook in the Carson Valley. As for the healthful qualities of the environment, I suspect she’s thinking more about the crisp, cool air gently blowing through a seemingly empty desert spring than the century-old hot spring resort on the northern edge of Carson City.

I’m not an environmental engineer by any stretch, but if my suspicions are correct, that’s wonderful — like many people who routinely share their opinions in public, I greatly prefer being correct and agreed with over the alternative. Unfortunately, whether I might personally share a common understanding of how Assemblywoman Peters uses those terms or not is rather beside the point. If the Green Amendment is successfully ratified into our state’s Constitution, the real question will be whether Nevadans in general — including the lawyers we hire and the judges we elect — share her understanding.

If not, the consequences will likely be catastrophic.

Unfortunately, potentially catastrophic legalistic interpretations of environmentally technical terms of art aren’t theoretical. For example, according to a 2015 study of the California Environmental Quality Act (CEQA) — a California statute signed in 1970 by noted leftwing radical eco-socialist and then-Gov. Ronald Reagan after then-President Richard Nixon, another noted eco-socialist, signed the National Environmental Policy Act — 80 percent of CEQA lawsuits target “infill” projects in established communities. Only 20 percent of CEQA lawsuits filed during the study period targeted projects on undeveloped or agricultural lands.

What did the overwhelming majority of these lawsuits prevent? Bus stops, bike lanes, and infill housing — precisely the sorts of infrastructure any environmental engineer would likely support, especially over car-centric exurban sprawl. 

How? Once invoked, CEQA requires California’s public agencies to evaluate the environmental impact of any proposed project. Until California’s legislators exempted sustainable transportation projects from CEQA’s purview — first temporarily in 2021 and then permanently in 2022 — CEQA-triggered traffic studies often concluded proposed bike lanes or bus stops might increase the length of time passing cars would sit in traffic. Since this would potentially increase local tailpipe emissions in the neighborhood, that would be enough of a justification to keep the projects required to reduce car dependency in those neighborhoods from being completed.

Even after California’s recent statutory changes to the Act, CEQA’s ability to freeze the decades-old status quo in amber remains potent. CEQA was recently used to not only stop the development of student housing in Berkeley but to briefly force the University of California to freeze enrollment entirely. The argument? The University of California system failed to accurately identify and mitigate the noise pollution additional students in the surrounding neighborhood would likely create.

That’s right — in the eyes of CEQA, as interpreted by the California Supreme Court, talking people are pollution, even when they’re walking to and from a 150-year-old university to the neighborhood developed over a century ago to serve the university. Apparently it would be better for the environment, for some legalistic definition of “better” and “environment,” if Cal’s students quietly and sullenly shuffled to class instead.

AJR3, to be clear, is not CEQA. It does, however, share common institutional deficiencies. 

With the benefit of five decades of hindsight, we now know that the American legal system is far better at saying no to changes to the status quo than it is to saying yes to alterations of our built environment which might improve the health and ecology of our neighborhoods. Furthermore, we also know legal experts, when push comes to shove, will interpret environmental statutes legalistically, not environmentally. Consequently, it’s far too easy for those who benefit from the status quo — like well-heeled incumbent homeowners — to twist the language of environmentalism to advance their interests.

ARJ3’s comparative brevity does not make those deficiencies disappear.

As our legislators consider the text of AJR3 — and as we perhaps consider the text ourselves in a few years — we must ask ourselves some important questions:

Will AJR3 be used to limit the development of lithium mines on sensitive environmental or cultural sites in distant rural locations? Or will it be used to let incumbent homeowners better fight the construction of new schools on the site of county-owned golf courses because the golf course is, you see, “public land”?

Will AJR3 be used to limit urban sprawl? Or will it be used to protect the “scenic quality” of incumbent homeowners who object to seeing multifamily housing constructed in their neighborhood?

Will AJR3 be used to allocate state resources at protecting sensitive indigenous cultural sites from vandalism? Or will it be used to justify throwing state resources at long-disused mining infrastructure because the “cultural quality” of a local party spot suddenly merits constitutional protection?

Who do you think can afford the lawyers and court fees?

Nevada has some serious environmental issues. None of them, however, will be addressed by a vaguely worded constitutional amendment which will take years to pass, is likely to get abused by the worst actors upon ratification, and would take years to overturn after the damage was done. That’s why, if the Legislature doesn’t vote against AJR3 this year or in 2025, we better vote against it ourselves in 2026.

David Colborne ran for office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Twitter @DavidColborne, or email him at [email protected]





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