The California Supreme Court’s March 3rd decision requiring Berkeley University to suspend enrollment while it studies the environmental effects of growing student bodies is drawing the attention of politicians and the general public.
This law was signed in 1970 and requires that all government agencies examine the potential environmental effects of any projects they are involved with.
However, over the 50-year period it’s been in effect, the “project” definition has been expanded to cover almost every discretionary government decision. Similar growth has occurred in the number of potential impacts. Anyone can also sue the law if one of these effects hasn’t be studied properly.
CEQA has been transformed into a super statute with an incredible power to stop almost all human activities, private or public. Appeals to CEQA have been filed and used in order to block new buildings, hospitals, bike lanes and burger joint, solar plant, marijuana dispensaries and other activities.
These losses have been met with incredible grace and patience by the state so far. The CEQA suit that forced California’s top university to cut enrollment by a staggering 3,000 students has prompted an unusual, yet perfectly justifiable, outrage over the law and its implications.
Politicians and lawmakers have proposed some very tepid reforms in response to the headlines. However, they will not address CEQA and leave it unrestrained and open for further killing.
Let’s start with some background.
U.C. Berkeley is trying to construct a new campus housing facility for faculty over the past few years. According to CEQA, Berkeley must prepare an environment impact report. The group Save Berkeley’s Neighborhoods sued the university for approving the report in 2019. They claimed that the university didn’t adequately study the effects on the environment of an ever-growing student population.
The lawsuit argued that increasing student populations was an independent project, which required an environmental impact report.
In July 2021, a pair of courts ruled that U.C. Berkeley did not adequately investigate the impacts of an increased student population on traffic, noise and parking. Accordingly, enrollment must be stopped at 2020 levels to allow for a CEQA-compliant study.
California Supreme Court denied the request of the university to lift the enrollment ban while it was preparing the new report. U.C. Berkeley now has to send out fewer acceptance letter than normal to reach the enrollment goal of approximately 3,100 students.
This seemingly bizarre result caught the eye of political commentators from all walks of the spectrum.
Ezra Klein said that processes meant to foster citizen involvement were seized by corporations and wealthy NIMBYs. The New York Times yesterday. “Laws that are supposed to protect the government from its consequences have made it impossible for them to act in a consequential manner.”
Steve Greenhut wrote here that “Thousands upon thousands of future teachers and engineers must abandon their plans, because a group entitled community activists has grown tired of students living in their communities, which drives up the housing cost,” There are reasons.
Anger at the decision of the U.C. Supreme Court by the state Supreme Court. California legislators have taken to the streets in protest of Berkeley case. So it turns out.
The case was still pending when the Democrat Governor. Gavin Newsom’s Administration filed an amicus brief to the California Supreme Court, supporting the university and advocating for lifting the enrollment freeze.
Newsom said at that time, “We cannot let a suit get in the way education and dreamsof thousands of students who will be our future leaders or innovators.” The brief the governor’s office filed did not take a wider position than the one that allowed the lawsuit.
It states that “This letter focuses upon the benefits and burdens” of the requested stay. The letter “doesn’t address merits questions surrounding Regents compliance with California Environmental Quality Act, (CEQA).
It is hard to imagine a politician with such courage.
Only slightly more impactful is a new bill from California Assembly members Anthony Rendon (D–Lakewood) and Phil Ting (D–San Francisco) that requires courts to wait 18 months before freezing enrollment if they find a university hasn’t complied with CEQA. It would make the U.C. Court decision retroactive. The Berkeley case could not be implemented.
Rendon, Ting and others are clear in their desire to keep CEQA unchanged while fixing what’s been the subject of national attention.
In a statement, they stated, “Educated workers are needed for the state to grow its economy, which motivates the Legislature to increase the number college enrollment slots, particularly for California residents,” “At the same time, we care deeply about CEQA… we cannot ignore the environmental impacts of growing campuses on surrounding communities.”
In February, Sen. Scott Wiener (D–San Francisco) introduced a further-reaching bill, S.B. 886 would have exempted student and faculty housing developments under CEQA and therefore those meticulous environmental reviews.
Wiener, who introduced the bill, stated that “It is unacceptable to NIMBY lawsuits strip students of their rights to a quality education through blocking housing and effectively forc[ing schools to reduce enrollment]”. We need to make it more accessible for them to construct the housing that they need at their campuses.
S.B. S.B. Courts have already decided—in a separate, active lawsuit brought by Save Berkeley’s Neighborhoods—that enrollment increases themselves are a CEQA project.
The law doesn’t exempt university housing developments from responsibility.
Wiener’s bill, in fairness to all parties involved, is intended to address a shortage of housing at California’s universities. That shortage causes students to move into neighboring areas in search for housing. This leads to NIMBYism. You might see fewer Save Berkeley Neighborhood-style lawsuits.
The California Legislature tried to limit the reach of CEQA in recent years by passing legislation that excluded things such as transit projects from environmental review and upzoning initiatives.
Even though these efforts were successful, CEQA still has a multitude of human and industrial activities that are subject to its crushing effects.
In a recent California lawyer Chris Carr, Chris Carr argued that leveraging the anger sparked from the Berkeley incident into another piecemeal Reform is a bad approach. Wall Street Journal op-ed.
S.B. Carr writes that the 886 amendment “merely continues the Legislature’s practice of adopting exemptions for narrow categories or activities,” Carr states. The exemptions are enough to keep the politicians from implementing comprehensive reform. These exemptions also relieve pressure from the courts who have presided over CEQA’s expansion into an extremely complex and complicated body of law.
Carr suggested that CEQA cases be brought to the attention of California Courts of Appeals. Carr argues this would discourage some individuals from filing CEQA suits and speed up lawsuits that do occur (a significant cost of CEQA litigations are the delays that they cause). It also increases judicial scrutiny for frivolous CEQA complaints.
People also suggested that CEQA litigations be narrowed and administrative appeals limited. Currently, almost anyone can do it for free. This invites abuse.
While these CEQA wholesale reforms are essential, they can be very difficult to achieve. Nearly every group with special interests has an interest in keeping the law alive.
Wiener, in an interview recently with The Independent, acknowledged that the moment is right for a wider CEQA reform. PoliticoHowever, it is also pessimistic about the chances of this reform actually happening.
He stated that the Berkeley “train crash has clearly highlighted to the wider public the problems of never-ending CEQA extension.” However, CEQA has a large scope and many interested parties.
His words continued, “There’s a time in politics when there’s something like a massive shooting and for 24 or more hours it feels like: ‘Oh my God! We’re finally going over the logjam regarding gun safety in Congress'” Wiener suggests that it’s better to go after the narrower reform with a higher probability of passage.
You don’t need to share his passion for gun control in order to see the reality of the political dynamics he describes. CEQA-skeptical politicians often repeat the same sentiments for many years.
According to the then-California governor, “You can’t change CEQA.” In a candid 2016 interview, Jerry Brown. The unions will not let you, because they use this as a hammer for project labor agreement,” Brown said. He was speaking about their practice of filing defamatory environmental lawsuits until developers agree to pay all-union wages. It’s the document of the people that the environmentalists love. You have to report all impacts.
However, the complexity of wholesale CEQA Reform doesn’t render it less important.
California has entered a crisis because of its growth-destroying effects. This law has led to high housing prices that have forced more Californians to move to other states. The cost of building infrastructure to support the citizens who reside there is prohibitively high.
U.C. Berkeley’s fiasco represents a rare case where the complex and extremely technical CEQA harms are obvious and easily understood by average voters.
This is the best thing to do to generate political capital for deeper legislative reforms. California policymakers who are serious about reforming the law must seize this rare opportunity. There won’t be a better opportunity.