23 June 2022
You may have heard the news that Judge Joseph Klein, in a Hennepin County District Court ruling, suspended the decadal “Minneapolis 2040” comprehensive plan following a litigation challenge. The lawsuit has been moving through the court system for years, and challenges the Minneapolis comprehensive plan under the Minnesota Environmental Rights Act (MERA). Led by a group called Smart Growth Minneapolis, and including the Minneapolis Audubon chapter and another birding group named Minnesota Citizens for the Protection of Migratory Birds, they have managed to win an initial ruling that suspends the comprehensive plan for now.
The decision is alarming because it discards years of work by a team of Minneapolis city planners and staff, makes irrelevant hundreds of public meetings attended by thousands of Minneapolis citizens (including one notable public hearing at City Hall that lasted five hours), and puts in limbo billions of dollars of development across the city. It also eliminates the largest single action taken by a Minnesota city on the linked crises around climate change and the housing shortage. For someone who wants cities to lead on these difficult issues, it’s hard to overstate my disappointment.
But all is not lost for Minneapolis 2040. This ruling could either be a depressing turning point that sets climate action and housing equity back a generation or a minor hiccup. As a non-attorney, I’ve been trying to wrap my head about the issues listed in the 28-page ruling. Here are four quick observations.
City attorneys were right, but still screwed up
The lawsuit uses the MERA to challenge the comprehensive plan, an environmental protection law that first passed in 1971, intended to protect “air, water, land, and other natural resources located within the state from pollution, impairment, or destruction.” In this case, it’s the first time in a half-century that a city comprehensive plan has been litigated under MERA.
In arguing against the lawsuit, the Minneapolis City Attorney’s office rested its case on rejecting the “assumption of immediate and full build out,” a line of reasoning that, at least if you use any measure of common sense, is obvious. To assume that every parcel of land in the city would immediately be with a new building at its peak density is absurd. A parallel cited in a MERA challenge of a freeway expansion called State by Schaller, would have one think about a new highway as having every lane in bumper-to-bumper traffic 24/7, with only the most polluting kinds of vehicles in a logjam on the road.
For that case, the courts claimed that MERA did not apply and relied instead on far lower MnDOT traffic counts that called on decades of data. But in this case, Judge Klein rejected Minneapolis’ arguments along similar lines, ruling instead that a “full and immediate build-out” is the right lens to think about MERA arguments.
To a layperson, that seems weird and counterintuitive, but the real tragedy is that the Minneapolis City Attorney’s office did not contest anything else about the case. They did not respond to the litigant’s arguments or expert witness on a point-by-point basis, leaving the rest of the decision a one-sided affair.
Density is a red herring
A lot of Klein’s decision focuses on the residential density in Minneapolis that could potentially come from rezoning associated with the 2040 Plan. The word density appears 12 times in the decision, and never in a flattering light. But as a result of the lack of arguments against the five MERA standards, the litigant arguments became “undisputed facts.”
In other words, the following claims were not contested in the ruling:
“It has not been disputed that the 2040 Plan represents a significant change from any previous plan, in terms of land use. It is undisputed that before the 2040 Plan there was no express intent to achieve increased population density for the Minneapolis area. Before the 2040 Plan there was no abolition of new single-family dwellings in Minneapolis. Before the 2040 Plan was approved there was no land use plan which authorized the increase of nearly 150,000 new residential units.”
To me, few of these claims seem true. Most comprehensive plans in Minnesota history expressly intend to achieve greater population; Minneapolis 2040 does not abolish single-family dwellings; and, to pick just one example, the city’s 1917 plan explicitly called for a population goal of 1,000,000 residents.
But as a result of the asymmetrical arguments, the crux of Klein’s decision hinges on the idea, unchallenged by Minneapolis attorneys, density inherently impacts natural resources, especially “air, water, soil, animals, and quietude.”
From an urbanist perspective, the linking of density and pollution is backwards. If you look around the world, density doesn’t have an inherent connection with the environmental destruction. To take but one example, Tokyo is one of the quietest cities I’ve ever walked around in, and has density an order of magnitude higher than Minneapolis. When it comes to particulate pollution, greenhouse gas pollution, or habitat impacts, any city in Finland fares better than the Twin Cities on all fronts precisely because of their greater density.
While dense informal communities across the Global South can be very polluted, it’s almost always because of a lack of infrastructure and social services. Meanwhile, sparsely populated cities and towns can be some of the most polluted and damaging, and nothing is worse for soil and water runoff than a surface parking lot full of leaky cars. Destiny itself doesn’t cause environmental problems; they hinge on many other social factors.
Every comprehensive plan could be challenged using MERA, which is bad
Another big problem caused by the Klein ruling is that nearly all comprehensive plans change zoning to allow for more housing. In fact, adding housing is pretty much required by the regional Met Council, and occasional holdouts like Lake Elmo are the exception that proves the rule. Other cities comprehensive plans are different only in scale, not in kind, from Minneapolis 2040.
If this ruling establishes precedent, unless state law changes or Klein’s ruling is overturned on appeal, 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. If recent experience around local urban politics construction is any guide, this is what will happen.
Missing the burning forest for the backyard tree
The most ironic thing about this case is that the lawsuit was brought by supposed environmental groups (note that “Smart Growth Minneapolis” has no affiliation with Smart Growth America, a long-time urban advocacy group aimed at increasing density in cities like Minneapolis). As an urban birder, it’s heartbreaking to see migratory birds used as a fig leaf to prevent climate action.
The case is critical because, in the absence of state and Federal action on the linked climate and housing crises, U.S. cities must lead. A recent study in California showed that building more “infill housing” in walkable cities represents the single most effective way to reduce carbon pollution, making the Minneapolis 2040 plan represents a major step forward for stopping climate change in the U.S.
In the end, slapping migratory birds onto the title of this case makes this outcome Orwellian. Climate change is transforming the Arctic faster than any other place on earth, in part because of ever-increasing carbon pollution from Americans and reliant on damaging fossil fuels.
Where does anyone think those birds are migrating to each spring? If this ruling holds, and cities like Minneapolis cannot act, it’s likely to their extinction.