Month: April 2023

Exclusionary zoning causes massive housing shortages that prevent millions of people from “moving to opportunity” and becoming more productive. The state of Montana is about to enact important new zoning reforms that will make it easier to build new housing in the state. The new legislation is the product of an unusual cross-ideological coalition that might serve as a model for “YIMBY” reforms elsewhere. CityLab housing expert Kriston Capps has a helpful analysis of these developments:

Lawmakers in Montana’s state legislature advanced bills in April that would shake up zoning, land use and building codes, making it much easier for property owners to build new housing — and much harder for local authorities to stop them.

A flurry of five separate “Yes In My Backyard” bills — all five sponsored by Republican legislators — are winding their way through various committees. One would require cities to permit backyard flats and other accessory dwelling units by right. Another law would allow duplex homes to be built in places zoned for single-family housing. If Montana Governor Greg Gianforte, also a Republican, signs even a couple of these bills into law, Montana will have leapfrogged several East and West Coast states that have struggled to respond to housing shortages at home….

In one fell swoop, the Montana legislature could issue a range of deregulatory actions that have only moved forward in California after years of agitation. On April 20, the legislature passed SB 323, which requires any city with more than 5,000 residents to permit duplex housing in areas zoned for single-family homes. Gianforte is expected to sign this bill as well as SB 406, which prohibits local governments from passing building codes that are stricter than the state code, any time now.

Of the bills in view, the most consequential is SB 382, the Montana Land Use Planning Act, a YIMBY omnibus package the likes of which few blue states would dare to consider.

SB 382 would transform the development process, limiting public hearings on housing projects by front-loading them to the general planning stages, when municipalities adopt their overall land-use plans. After that, approvals in Montana cities would proceed by right — effectively shutting out NIMBY homeowners who often thwart growth.

As Capps explains, the new legislation is the product of an unusual left-right political coalition:

The wave of legislation is the work of a diverse group of advocates from both the political left and right. The coalition behind this push is clear about its goal: Montana needs to head off a housing crisis at the pass.

On this point advocates can agree, even if on almost every other subject, they’re worlds apart. And by joining forces, this left-right coalition cleared a political impasse that has blocked so-called housing-abundant policies, which strive to remove barriers to new construction.

We were able to go to mostly Republicans and talk about free markets the importance of property rights. They were able to go to folks on the left and talk about climate and social impacts,” says Kendall Cotton, president and CEO of the Frontier Institute, a right-leaning free-market think tank. “It doesn’t break down on normal partisan lines. Advocates shouldn’t silo themselves on the normal partisan lines.”

The YIMBY movement taking shape in Helena is unusual in the US: Few states with a Republican governor, much less with a GOP supermajority in the legislature, have advanced such sweeping efforts to promote new housing construction in cities. Some red states have seen the opposite happen: When Gainesville became the first city in Florida to end single-family-only zoning locally, state leaders threatened legal action, and local Democrats repealed the ordinance before it could take effect.

Zoning reform cuts across standard ideological lines. Economists and housing experts across the political spectrum agree on the need to curb exclusionary zoning. But there is also is long history of both left and right-wing NIMBYism, motivated by a combination of public ignorance, suspicion of market forces and developers, and (particularly, though far from exclusively, on the right) fear of disruption of existing communities by in-migration, especially that by the poor and racial minorities.

NIMBY opposition will be easier to overcome if reform advocates can work together across traditional political lines, as they have in Montana. As Copps notes, such coalitions may not be needed in overwhelmingly “blue” jurisdictions, where conservatives and libertarians have too little political influence to make much difference. But they can be useful in light-red, light-blue, and “purple” states like Virginia, where GOP Governor Glenn Youngkin has recently advocated reform, but will likely need help from Democrats to push legislation through. A broad coalition has turned out to be valuable even in strongly red Montana, where the support of liberals helped push reform over the top.

Whether Montana’s success can be replicated elsewhere remains to be seen.  Capps suggests “[i]t’s possible that the special sauce in Montana is ultimately Montana itself.” But, while Montana-specific factors surely played a role here, the problems caused by exclusionary zoning are from unique to that state. Reformers should at least try to learn from the Montana experience and see if they can develop similar coalitions in other states.

The post A YIMBY Victory in Montana appeared first on Reason.com.

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I’ve grown completely numb to the daily reporting on alleged ethical problems at the Supreme Court. All of these pieces follow a similar pattern. (1) Reporter spends an inordinate amount of time poring over mountains of publicly-available documents. (2) Reporter finds something that was not disclosed, or not fully-disclosed. (3) Reporter raises allegation that the failure to fully disclose that item is a problem, without actually identifying what that problem is. (4) Reporter interviews left-wing ethics groups who insist that full disclosure is necessary. (5) Reporter interviews the same cadre of law professors, who maintain that even though no actual rule was violated, the Justice should abide by some unwritten, higher standard. (6) Reporter publishes piece, which is widely shared on social media, but not actually read. (7) Sober analysis later reveals that the Justice either complied with the rules or made a good-faith mistake that will promptly be corrected. I’ll have much more to say about this journalistic paint-by-numbers in a future ABA Journal column. Sunlight is a good disinfectant; too much heat will burn everything down.

But you know what the press has largely forgotten about? An actual judicial crisis: how the draft Dobbs opinion leaked to the press. The media should devote as much attention to the leak, as it fixates on who Amy Coney Barrett hosted a baby shower for 20 years ago.

And amidst these attacks, the Supreme Court remains rudderless. We know that the Chef Justice is unable, or unwilling to defend his Court beyond self-serving bromides about the Court as an “institution.” If he thought his shoddy letter to the Senate would quell controversy, he was very wrong. The statement the Chief organized raised more questions than it answered. Fortunately, at least one member of the Court is willing to defend the Court against the never-ending barrage of attacks: Justice Samuel Alito. If Justice Thomas is the intellectual leader of the Court, Justice Alito is its heart.

We see this heart in an interview with the Wall Street Journal, given in mid-April. He defends the Supreme Court in ways the Chief Justice cannot, or will not.

First, Alito explains, correctly, that what will harm the Court’s legitimacy is to rule based on public perception–exactly what the Casey plurality purported to do:

The threat to politicize the court can tempt justices to rule defensively—to take account of political ramifications and thereby politicize their own institution. The plurality explicitly did that in Casey, and some sitting justices have been accused of it in recent years. Justice Alito isn’t one of them.

“This is not a situation in which the right thing to do is different from the expedient thing to do, at least in the long term,” he says. The public “will have reason to question our legitimacy if they see that what we are doing is not following the Constitution and the laws, but we’ve got our finger to the wind”—he lofts a digit—”and we’re issuing decisions that nobody really believes represent our sincere thinking about the law, but are structured in a way to curry favor, avoid controversy or something like that.”

Justice Antonin Scalia said something similar in his dissent in Casey: “The notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening.”

I made this point in a Newsweek column last summer. Dobbs did not simply overrule Casey. Dobbs overruled the “judges of wisdom” who based their decision on popular sentiment.

Justice Alito calls out the incessant criticism targeting the Court’s “legitimacy.”

But as the court has grown more conservative in recent years, the left has stepped up the attacks on the court’s “legitimacy,” including character assassination of individual justices, with little objection from mainstream Democrats and plenty of help from the media.

Justice Alito says “this type of concerted attack on the court and on individual justices” is “new during my lifetime. . . . We are being hammered daily, and I think quite unfairly in a lot of instances.”

Ultimately, these efforts are a self-fulfilling prophecy. If you keep repeating the “legitimacy” line over and over again, it eventually becomes “true.” People will believe the Court is no longer legitimate.

Those who throw the mud then disparage the justices for being dirty. “We’re being bombarded with this,” Justice Alito says, “and then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.’ Well, yeah, what do you expect when you’re—day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”

And these efforts will, in the end, weaken the ability of the Court do its business.

It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”

Second, Alito observes that those most familiar with the Court’s work refuse to defend the Court.

“And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.” Instead, “if anything, they’ve participated to some degree in these attacks.”

Indeed, the American Bar Association has adopted a resolution calling on the Court to adopt and ethics code. You may think that resolution is neutral, or even salutary. But the leaders in the legal profession are feeding into the “legitimacy” attack.

Yet, many of the same people who carp about legitimacy also insist that Court “expansion” is the only way to restore the Court’s legitimacy. Alito disagrees.

Justice Alito finds the whole notion appalling: “To change the size of the court just because you want to change the result in cases—that would destroy it. You want to talk about our legitimacy? That would destroy the perception that we’re anything other than a political body.”

Third, Justice Alito turns to Dobbs. Justice Alito echoed Justice Thomas’s concerns that the leak harmed the Court’s collegiality:

He now says that the leak “created an atmosphere of suspicion and distrust. We worked through it, and last year we got our work done. This year, I think, we’re trying to get back to normal operations as much as we can. . . . But it was damaging.”

Alito also reveals that he suspects he knows who leaked the draft.

Justice Alito says the marshal “did a good job with the resources that were available to her” and agrees that the evidence was insufficient for a public accusation. “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” he says.

Does “who is” here refer to a single person, or to more than one person? I think the former. But more importantly, Justice Alito opines on the motive. Hint, it wasn’t a conservative.

He’s certain about the motive: “It was a part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.”

Alito finds it preposterous that anyone would think a conservative leaked the document:

A few pundits on the left speculated that the leaker might have been a conservative attempting to lock in the five-justice majority and overturn the constitutional right to abortion. “That’s infuriating to me,” Justice Alito says of the theory. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

Those who maintain that Alito leaked the opinion to “lock in” votes will now have to accuses Alito of lying. (That won’t be a problem.)

Alito also highlights an obvious fact: a Justice was almost assassinated to prevent the majority from releasing the opinion. In hindsight, at least, a conservative would never have made this move.

That campaign included unlawful assemblies outside justices’ homes, and that wasn’t the worst of it. “Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” Justice Alito says. “It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.” On June 8, an armed man was arrested outside the home of Justice Brett Kavanaugh; the suspect was later charged with attempted assassination and has pleaded not guilty.

Justice Alito also weighed in on the changes to his security protocol:

He adds that “I don’t feel physically unsafe, because we now have a lot of protection.” He is “driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.” Deputy U.S. marshals guard the justices’ homes 24/7. (The U.S. Marshals Service, a bureau of the Justice Department, is distinct from the marshal of the court, who reports to the justices and oversees the Supreme Court Police.)

Finally, Alito also predicted that Justice Scalia would have joined the majority in Dobbs:

How did Scalia escape the opprobrium to which his younger colleagues and successors have been subjected? In part by dissenting often. “Nobody can say for sure,” Justice Alito says, “but I’m willing to bet he would have been on the side that has been so heavily criticized in all the controversial cases. His vote would have been there, and he would have been subjected to the same kind of criticism.”

There’s little doubt that would have been true of Dobbs. “Some decisions,” Justice Alito says, “and I think that Roe and Casey fell in this category, are so egregiously wrong, so clearly wrong, that that’s a very strong factor in support of overruling them.” Scalia was even blunter in Casey: “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

“When you’re in dissent,” Justice Alito observes, “well, his ideas were amusing and interesting. He spoke at a lot of law schools and he was honored at law schools, but he wasn’t a threat, because those views were not prevailing on issues that really hit home.”

I agree.

The post Justice Alito Defends The Supreme Court In Ways Chief Justice Roberts Cannot appeared first on Reason.com.

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President Joe Biden is serious about fighting climate change through clean energy. As part of his 2020 presidential platform, he endorsed the ambitious and pricey “Green New Deal” and pledged to “ensure the U.S. achieves a 100% clean energy economy and reaches net-zero emissions no later than 2050.” Once in office, Biden “set a goal to reach 100 percent carbon pollution-free electricity by 2035.”

It’s ironic, then, that Biden’s administration and congressional allies are undermining those very same goals.

The two primary methods of mitigating carbon emissions are either reducing the amount of carbon released into the atmosphere—shifting to a cleaner technology like wind or solar, for example—or removing and trapping carbon that has already been released. One example of the latter is carbon capture and storage (CCS), which removes carbon from the atmosphere and contains it within the natural environment, either by absorbing it into trees and oceans or capturing and storing it underground.

According to The New York Times, the Environmental Protection Agency (EPA) will soon announce limits on greenhouse gas emissions for coal- and gas-fired power plants. Citing unnamed officials, the Times expects the limits will force plants to use CCS technology, even though only a handful currently do. Under last year’s Inflation Reduction Act (IRA), companies can even qualify for a tax credit of $85 per ton of carbon captured.

But as The Washington Examiner reported, “the administration is currently the largest obstacle to its own climate goals.” In order to build out CCS, companies need to construct underground reservoirs, called class VI wells, in which to inject and store captured carbon. And yet the EPA is currently sitting on dozens of permit applications for class VI wells, leaving them in “pending” status. Power plants that want to introduce carbon-mitigating technology are unable to do so until the EPA moves through its backlog.

It’s also worth remembering that these are just the existing permit applications: Once the EPA rolls out rules that would functionally require most of the nation’s more than 3,400 coal- and gas-fired power plants to use the technology, there’s no telling how bad the backlog would get.

Carbon capture isn’t even the only area where the government is standing in its own way. The IRA established tax credits for clean-energy expenditures like electric vehicles and solar panels. And while the solar panel credits are exceedingly difficult to qualify for, Democrats in Congress are pushing for tariffs on panels made in China, which will hurt the solar industry’s ability to meet demand.

In February 2022, Biden announced that he would renew Trump-era tariffs on Chinese-made solar panels and solar cells. In June, he suspended the tariffs for two years, amid a Commerce Department investigation into companies circumventing the tariffs that roiled the industry. He then invoked the Defense Production Act to boost the domestic manufacture of solar modules and components, which he deemed “essential to the national defense.”

But on Friday, the House passed a resolution that would revoke Biden’s pause and reinstate the tariffs; 12 Democrats voted for the legislation while eight Republicans voted against it. The Washington Post recently reported that while the solar industry worries that the tariffs would be ruinous, Democrats worry that “taking anything other than a hard line against China will cost them voter support.” But it will likely also cost them their clean energy goals, seeing as “Chinese companies manufacture more than 80 percent of certain crucial components sold worldwide” for clean energy applications, including “more than 95 percent of the wafers and ingots essential to assembling photovoltaic solar panels.”

This week, Sens. Joe Manchin (D–W.Va.) and Rick Scott (R–Fla.) cosponsored a resolution disapproving of the Biden administration’s pause on tariffs. Manchin, who also chairs the Senate Energy and Natural Resources Committee, said in a statement, “The United States relies on foreign nations, like China, for far too many of our energy needs…. I cannot fathom why the Administration and Congress would consider extending that reliance any longer.”

Tariffs, as envisioned by protectionist politicians, boost domestic production by lowering the cost differential between American products and their less-expensive counterparts imported from overseas. But in reality, tariffs simply make imports more expensive and remove market incentives for American companies to sell their products at lower prices.

With these tariffs, Biden and Democrats’ clean energy goals will become increasingly difficult to meet.

“The United States cannot produce enough solar panels and cells to meet demand,” said Abigail Ross Hopper, president and CEO of the Solar Energy Industries Association, “and the remaining 14 months of this moratorium gives us time to close the gap. The United States can get there and become a global leader in clean energy manufacturing and development. Overturning the moratorium at this stage puts that future at risk.”

The post Biden and Congressional Democrats Support Policies That Will Undermine Their Own Clean Energy Goals appeared first on Reason.com.

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Zoning rules that severely restrict the construction of new housing are a major violation of property rights, and also cause housing shortages that prevent millions of people from “moving to opportunity” and becoming more productive. There is already extensive research by economists and housing policy experts demonstrating these points. A new study by Alex Horowitz and Ryan Canavan, housing specialists at Pew Charitable Trusts, provides additional evidence:

A national housing shortage has driven up rents, leaving a record share of Americans spending more than 30% of their income on rent and making them what is known as rent-burdened. But in four jurisdictions—Minneapolis; New Rochelle, New York; Portland, Oregon; and Tysons, Virginia—new zoning rules to allow more housing have helped curtail rent growth, saving tenants thousands of dollars annually….

Research shows that rents rise when more people need housing relative to how many homes are available. Restrictive zoning policies make it harder and more expensive to build new housing for everyone who wants it, and most researchers have found that this drives up home prices and rents…..

But what happens to rents after new homes are built? Studies show that adding new housing supply slows rent growth—both nearby and regionally—by reducing competition among tenants for each available home and thereby lowering displacement pressures. This finding from the four jurisdictions examined supports the argument that updating zoning to allow more housing can improve affordability.

In all four places studied, the vast majority of new housing has been market rate, meaning rents are based on factors such as demand and prevailing construction and operating costs. Most rental homes do not receive government subsidies,… Policymakers have debated whether allowing more market-rate—meaning unsubsidized—housing improves overall affordability in a market. The evidence indicates that adding more housing of any kind helps slow rent growth. And the Pew analysis of these four places is consistent with that finding….

Each of these places kept rent growth minimal relative to the U.S. overall, even while demand for housing continued to grow. Between 2017 and 2021, the four jurisdictions saw their total number of households grow between 7% and 22%, while the total households nationally increased by 6%. More households require more homes, and a housing shortage relative to demand drives up rents….

During the period studied, rents nationwide increased by a whopping 31%, while, in the four reform jurisdictions, they only went up by 1% to 7%. That, despite the fact that all four experienced greater population growth than the national average. The success of Tysons, Virginia is particularly notable, because the northern Virginia area as a whole has experienced a major boom in housing prices over the last decade, driven by increased demand. Tysons’ experience bodes well for the impact of “missing middle” zoning reform recently enacted in  nearby Arlington County, where I live.

The Pew analysis emphasize the benefits of lower rent, which is of obvious value to lower-income households. But at least equally important is the increased ability of people to “move to opportunity” in these jurisdictions, thereby improving both their own prospects and the productivity of the broader economy. Libertarians and other property rights advocates should also welcome the great expansion in property owners’ ability to decide what to build on their land.

Throughout much of the country, zoning is the single biggest constraint on property rights. Zoning is the biggest property rights issue of our time. I say that despite the fact that it isn’t in my interest to do so, given that I have devoted much more of my property scholarship to eminent domain.

“NIMBY” defenders of exclusionary zoning argue that they are necessary to protect the interests of current homeowners in places like Arlington—people like my wife and myself. But, in many ways, we too have much to gain from breaking down zoning restrictions—especially if we have children and we want them to be able to find affordable housing.

In recent years, valuable reforms have been enacted in a number of states and localities, and others are under consideration. But much remains to be done. The progress made in these four jurisdictions is an indication of what can potentially be achieved through broader reform.

The post More Evidence that Cutting Zoning Restrictions Reduces the Price of Housing appeared first on Reason.com.

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