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The California Environmental Quality Act (CEQA) imposes a requirement that all public agencies evaluate the environmental consequences of discretionary actions that may have a significant effect on the environment. The idea is that through such deliberation, the agency will be able to prevent environmental damage. Yet controversy over the impact of student enrollment at the University of California鈥檚 Berkeley campus has caused many people to question the application of the CEQA in practice.

Save Berkeley鈥檚 Neighborhoods (SBN) is a community association that represents an area near the campus. Its mission, according to its website, is to 鈥減rovide education and advocacy to improve the quality of life, protect the environment, and to encourage the city and UC (Berkeley) to implement best planning practices.鈥�

SBN sought to cap enrollment at the campus, contending that the university had, in recent years, added 14,000 students but provided only 1,600 new beds, and that the additional students have exacerbated the housing crisis in the city.

SBN argued that the university鈥檚 CEQA analysis was inadequate because it failed to consider how increased enrollment would impact housing displacement, an increase in homelessness, and noise in Berkeley neighborhoods. A lower court agreed and ordered a freeze on enrollments at 2020-21 levels (which were already low because of the COVID crisis when some students deferred attendance or took gap years). The California Supreme Court rejected Gov. Gavin Newsom鈥檚 request for a stay of the ruling pending review on appeal.

The result was that 3,000-5,000 fewer acceptance letters (representing one-third of the 2022-23 incoming class) were not sent out as planned. According to the university, the decision meant $57 million in lost tuition, fees and state support, which would limit the university鈥檚 鈥渁bility to deliver instruction, provide financial aid for low-income and middle-income students, adequately fund critical student services, and maintain our facilities.鈥�

SBN ascribed blame to the university for inadequate planning, suggesting that students were 鈥減awns鈥� in a political contest and contending that the university would not have to reject any in-state students under the enrollment cap if it were to admit no out-of-state students or graduate students in certificate programs. However, university officials suggested that advocates for a cap on student enrollment have long opposed UC Berkeley building housing for students as well. Other observers contended the enrollment cap would affect transfer students most of all and that the decrease in enrollment would also lead to a decrease in diversity at UC Berkeley in terms of age, ethnicity and the number of nontraditional students, such as student-parents.

Chris Elmendorf, Martin Luther King Jr. Professor of Law at UC Davis, said that this outcome reveals the 鈥渂ankruptcy of CEQA,鈥� in that it required the city to provide a thorough consideration of alternatives, including reduced enrollment. If a court finds the consideration insufficient, it must maintain the status quo even if increased enrollment was anticipated, desirable and planned. Elmendorf has lamented 鈥淐EQA sprawl鈥� 鈥� i.e., the obligation to address, evaluate and mitigate every speculative socioeconomic impact as an impact on the physical environment, transmogrifying an environmental review statute 鈥渋nto a NIMBY stop-everything (even education!) statute.鈥�

According to Elmendorf, the evolution from environmental protection to weaponization against change occurred in the 1960s and 鈥�70s. Thus a developer (or a state agency) must either risk a challenge by spending less time and money for up-front analysis of impacts and build the project more quickly, or spend that time and money for analysis, bear the expense and delay a project, and hope that the project will be approved. Delay or denial of a project would be difficult to appeal under California law.

Elmendorf includes in his tweets on the subject a photo of then-Gov. Ronald Reagan signing the CEQA into law, implicitly suggesting that the legislation is equally useful to anyone seeking to stop low-income housing, university enrollment, anti-flooding facilities, parking structures, a NASCAR track or oil storage tanks. It is more often used by residents seeking to stop or delay changes that they perceive will affect their property values, regardless of the project鈥檚 potential good.

In mid-March, the California State Legislature unanimously passed, and Newsom signed, a law giving universities more time to comply with the CEQA before a judge can order a reduction in enrollment. The legislation took only 11 days from concept to gubernatorial signature. Still, there is concern that housing efforts in California will continue to be frustrated by CEQA legislation.

Oregonians might be thankful that the state didn鈥檛 get on the environmental quality review bandwagon in the 1970s when it was all the rage. The CEQA is a notoriously effective weapon in California to stop or delay needed housing, although the legislature in that state is removing other barriers to housing that is planned and zoned at the local level. The Berkeley debacle may yet cause the legislature to deal more effectively with this clash of good intentions.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.