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An enrollment freeze by CEQA would have prevented the university from continuing its long-range development plans. (Shutterstock)

By Shawn Hubler

The New York Times

California lawmakers Monday headed off an enrollment freeze at the University of California, Berkeley, that threatened the growth not only of the iconic campus but also of public education institutions across the state.

The legislation, signed by Gov. Gavin Newsom hours after its passage, will override a court order that would have forced Berkeley to cut thousands of students from its planned on-campus fall enrollment. Its swift enactment was lauded by Carol Christ, the university’s chancellor, “on behalf of the thousands of students who will benefit from today’s vote.”

So problem solved, right?

Legal analysts say the tweak in state environmental law spearheaded by legislators including state Sen. Nancy Skinner, who represents the city of Berkeley, and Assemblyman Phil Ting, who chairs his chamber’s budget committee, does seem likely to solve the university’s immediate problem and ward off copycat lawsuits. But it stops short of a common demand across California’s political spectrum: an overhaul of the half-century-old California Environmental Quality Act.

Known as CEQA, the act was passed to protect the state’s wildlife and natural resources from being overrun with development, but it has increasingly been weaponized in ways that have helped to worsen the state’s acute housing shortage. Like many fixes before it, the Berkeley legislation “leaves the larger problem of CEQA untouched,” said Chris Elmendorf, a law professor at the University of California, Davis, whose areas of expertise include land use.

I spoke with Elmendorf over the weekend. Here’s some of our conversation, lightly edited:

Q: What does this legislation do?

A: The court order was going to limit Berkeley enrollment for the next year. And, by implication, it was going to allow plaintiffs to challenge an admissions decision or faculty hiring or anything else that would increase the size of a campus population.

This legislative fix says that under CEQA, a change in enrollment, as such, is not a “project” that is eligible for potential challenge. The university still has to develop long-range development plans. And it still has to do analyses of the environmental impact of those plans.

And there’s a confusing provision that says if the court finds a flaw in the analysis and the university doesn’t fix it within 18 months, the court may limit the entire campus population. But student enrollment can’t be singled out.

Q: So what’s the untouched larger problem?

A: You’d expect a statewide environmental law to focus on statewide environmental issues. But that’s not how CEQA works in practice. It applies to local increases in population regardless of whether they might be a good or a bad thing statewide.

Q: Talk more about that.

A: What was identified in this case? Noise from additional students, trash from additional students, traffic from additional students and increased housing prices and an attendant increased displacement and homelessness caused by additional students. These are legitimate matters of local concern.

But think from a statewide perspective about the average environmental footprint of a person in California. Almost certainly, someone in Berkeley — a city with great public transit, in a temperate climate with minimal heating and cooling costs — is going to have less of an environmental footprint than if they were living elsewhere in California.

If UC Berkeley welcomes more students to campus or if the city of Berkeley approves a housing project or revises its ordinances or general plan in a way that allows more people to live in Berkeley, that’s an environmental win, from a statewide perspective. But CEQA pretends that if those people weren’t living in Berkeley they wouldn’t be living on planet Earth, where they’ll be driving or making trash or noise or starting wildfires or bulldozing habitat.

Q: So what should be the next step?

A: The Legislature should revisit CEQA. Or the governor’s Office of Planning and Research, which writes CEQA guidelines, should revisit what counts as an environmental impact, particularly in urbanized areas. This would make sense especially if the governor is serious about facilitating housing development in downtown locations, because the state’s environmental laws are thwarting those very projects.

The state also needs to make it possible for supporters of a project to sue a city for requiring excessive environmental review or taking too long to certify a CEQA study, just as opponents may challenge the city for doing too little. This is a special problem for housing.

The state’s Housing Accountability Act prevents cities from denying or downsizing most projects that comply with applicable standards. But it’s not clear whether this law or any other provides a remedy if a city tries to ice a project with make-work demands for additional “environmental” studies, rather than denying it outright.

Q: What should be dropped from CEQA?

A: Local impacts associated with population growth in urban areas should not be CEQA issues. Most of the things identified in the Berkeley case — noise, traffic, trash — these are all things city elected officials have an incentive to take care of. We don’t need a statewide environmental law for that.

As for the price of housing, that’s a problem local officials don’t handle well because the burden of higher prices falls mostly on people who don’t yet live — and vote — in the city. But the solution to high housing prices and displacement is not to fashion CEQA into an even more formidable barrier to development.

Q: What, ideally, should be kept?

A: We need a statewide environmental law to cover things that local governments cannot handle within their jurisdictions: things like wetlands, endangered species, habitat preservation. The state should also make sure that local officials don’t give short shrift to serious dangers like wildfire risk or toxic sites.

Q: How likely is a new, improved CEQA?

A: The building trade unions, which are a powerful lobby, have fought off pretty much any substantial change to CEQA for a long time because it is very useful for threatening developers who don’t sign project labor agreements. And the environmental community has been a stalwart defender of CEQA as well. CEQA remains a useful tool for blocking development in places like Lake Tahoe, even as its application in cities has become grotesque.

So is a big reform likely? The answer is no. But this Berkeley debacle and some other cases have focused attention on the law, and may be opening a lane for elected officials who want to be both pro-environment and pro-city. So maybe CEQA reform is more likely than it was six months ago.

This article originally appeared in The New York Times.

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