The Everett Herald: Everett measure would make housing crisis worse

In the children’s classic “The Lorax,” Dr. Seuss created a character that claims to “speak for the trees.” What was merely a piece of juvenile fiction is now threatening to cross over into reality. But instead of an imaginary cuddly creature, the main character in the real story is an army of lawyers, and lawsuits drive the plot.

A new and unusual front in the environmental movement has gained traction in the U.S. and is coming up for a vote on Everett’s November ballot. “Rights of Nature” is a legal theory that grants individuals the right to sue on behalf of plants, animals, bodies of water, or other elements of nature. Everett voters should understand how adopting this ideology into local law would unleash a tidal wave of litigation sure to undermine property rights and hamper affordable housing efforts while doing little to improve environmental conditions.

If approved, Initiative No. 24-03 would enable “any resident of the City of Everett” to bring a civil lawsuit for damages against “[a]nyone who negatively impacts the [Snohomish River] Watershed’s ability to exist, regenerate or flourish.” At first glance, the idea might seem appealing: Everett citizens would have a new legal tool to stop environmental harm. But a closer look at the ordinance’s language reveals the near-certain insidious consequences of the law if passed –– it will be a cudgel wielded by anti-development activists to grind disfavored building projects to a halt.

Everett is no stranger to the nationwide housing crisis, and this Rights of Nature initiative threatens to compound the problem. Laws like this create yet another hurdle for housing developers to overcome, slowing building progress and ballooning the final cost of a home. Indeed, housing developers will have little incentive to invest in the area if their projects risk expensive, burdensome, and unwinnable lawsuits.

The initiative does not define its terminology, which is broad and vague enough to capture virtually any activity within the 1,856 square mile watershed. All human enterprise that modifies nature — farming, fishing, construction — involves some potential for harm. Anyone with the time and inclination could sue based on even the most attenuated notion of environmental damage.

Compounding the problem is the breathtakingly lax legal standard by which claims would be evaluated: “Violations would not need to be proven to a scientific certainty.” What evidence would a plaintiff have to present to a court to establish the alleged negative impacts? It doesn’t say. Not only could activists smack landowners with burdensome lawsuits to interrupt construction projects, but their claims wouldn’t have to meet a defined burden of proof. Even a landowner who presented strong scientific evidence to counter allegations of purported harm could still lose under this poorly defined standard.

Consider California’s Environmental Quality Act (CEQA), which similarly grants people the power to stall building projects with a lawsuit, often shunting developers into a lengthy process requiring multiple, expensive environmental studies. This is a well-known tactic employed by environmental activists and “NIMBYs” to prevent development and growth. CEQA lawsuits can cause projects to drag on for decades, with some developers simply giving up and leaving an empty lot behind. Along with the onerous local zoning laws common throughout California, the weaponization of CEQA has contributed to one of the worst housing shortages in the country.

Fortunately, rejecting Initiative No. 24-03 doesn’t mean abandoning environmental protections or allowing people to recklessly clear-cut the Snohomish River Watershed, as the Initiative proponents claim. A strong system that protects private property rights, enforced by existing civil law, are some of the best defenses against pollution and environmental degradation. Moreover, the state and federal governments already have plenty of legal tools to prevent environmental nuisances, protect people from harm, and keep waterways clean. And private parties who have been injured already have standing to bring lawsuits to enforce their own rights. This overlapping legal framework already incentivizes landowners to develop and manage their property responsibly, minimizing environmental impacts wherever possible.

No one disputes that environmental preservation is a laudable goal, but laws that seek to further that goal should contemplate the tradeoffs involved. Rights of Nature ordinances disadvantage landowners without providing any meaningful contribution to existing environmental protections. Everett voters should reject Initiative No. 24-03.

This op-ed originally appeared in The Everett Herald on October 29, 2024.