By Chris Carr
The California Supreme Court last week declined to stay a lower court order in a case involving a housing and classroom complex under construction on the UC Berkeley campus. This will effectively shut the door to one of America’s finest public universities for thousands of prospective students.
It is a typical “Not in My Back Yard” or NIMBY case. A small group of neighbors opposed the construction project over what they feared would be increased noise and traffic and sued the university. Their lawsuit alleges the project violates the California Environmental Quality Act, or CEQA.
A lower court sided with the neighbors and ordered UC to freeze Berkeley enrollment at fall 2020 levels, or about 42,000 students. Today, Cal enrolls about 45,000 students. Effectively, the ruling will end the dreams of roughly 3,000 students who hoped to attend Cal this fall.
The ruling has sent shockwaves across the state, with many wondering – how can CEQA be used to deny the opportunity for a higher education for California’s best and brightest students?
As documented in the new Pacific Research Institute study “The CEQA Gauntlet,” CEQA has become increasingly weaponized by opponents to try and stop virtually every type of construction project. Housing projects, new schools and school modernization projects, homeless shelters, transportation infrastructure, wildfire protection activities, and even renewable energy facilities are all affected.
CEQA adds significant time and delay to projects and sometimes halts projects altogether.
Signed into law more than 50 years ago by then-Governor Ronald Reagan, the law’s stated purpose was to incorporate environmental considerations into the public decision-making process for decisions by governments undertaking or approving construction projects.
When first enacted in 1970, CEQA consisted of 13 separate code sections. Today, CEQA has become a maze of tests and trials that far too often frustrate construction across the state – encompassing over 190 code sections, and 250 implementing regulations called “CEQA Guidelines” that include 14 appendices.
Every state, regional and local agency is responsible for ensuring CEQA’s mandates are met. Having to comply with the permitting requirements of multiple agencies adds significant time and expense for project approvals. Those “responsible agency” approvals cannot be issued until the CEQA “lead agency” has first completed the CEQA process itself. A suit challenging the lead agency’s CEQA compliance can take years to be resolved, during which time projects may be halted.
CEQA’s use as a weapon to stop or delay development, and extract concessions from project proponents and lead agencies, has been refined into a high art form by CEQA plaintiffs and their attorneys. Indeed, the mere threat of a CEQA suit, because of the costs, delays and uncertainties that typically accompany CEQA litigation, can sometimes make it impossible for a project to secure financing at all or on reasonable terms. And, far too often, the CEQA process and litigation are used for personal gain or to advance narrow, parochial interests, as exemplified by the Berkeley tragedy.
But Berkeley enrollment is just one, especially painful example. Others abound and show CEQA frustrating the development of housing and infrastructure reflecting many of the state’s highest policy priorities.
In 2014, Habitat for Humanity proposed building a 20-unit, affordable housing project in downtown Redwood City. It was exactly the type of project that should be prioritized – an urban infill project on a vacant lot near public transportation. However, the project was cut to less than half the original size to win City approval. Then, an attorney working out of his two-story home behind the project lot filed a CEQA lawsuit, alleging the City failed to evaluate the project’s impact on traffic and scenic vistas. The attorney was upset about the impact on the view from his home’s rear windows.
Rather than ensuring that environmental concerns are being properly considered during project reviews, this case illustrates how opponents use CEQA to delay projects, obtain concessions, or see them stymied altogether. The attorney admitted that CEQA litigation was also threatened against other nearby projects, which resulted in the developer of an apartment building eliminating an entire floor, and then scrapping of a planned 91-unit condominium project.
Consider the case of an eight-story, 75-unit mixed-use development project in San Francisco. It met the state’s affordable housing requirements, was located near public transportation, and did not displace existing residents. Yet project opponents appealed the Planning Commission’s approval to the Board of Supervisors. Their argument? The Board failed to consider that a laundromat that would be displaced – one of three within a 100-yard radius – was historic and worthy of preservation. It took the builder over five years and $1 million to secure final approval.
In El Cerrito, Calif., the school district looking to build a new middle school campus decided renovating an existing elementary school was the best option. Despite significant public outreach and mitigation efforts, neighborhood opponents sued under CEQA. While the lawsuit listed environmental concerns, what neighbors really didn’t want were middle-aged school children coming to school in their neighborhood. After nearly four years of litigation and more than $10 million in construction delays and litigation costs, the courts overturned the objections, and the project was finally approved.
San Francisco proposed adding 34 miles of new city bike lanes, yet several groups were unhappy about its potential impact on traffic and parking. They sued the City, arguing that the project warranted preparation of an Environmental Impact Report. The City took two years to complete the report, before then being subjected to another year-long litigation fight that was ultimately dismissed.
CEQA is even hindering efforts to address climate change. Project developers racing to build renewable energy projects to meet California’s fast-approaching 100 percent clean energy mandate often face the threat of CEQA lawsuits from parties hoping to leverage tight project deadlines to secure financial settlements.
And late last year the San Francisco Board of Supervisors nixed a 495-unit apartment development to be located next to BART and other public transit, on a vacant parking lot in downtown, directing its Planning Department and the developer to add further analysis to the 1,129-page Environmental Impact Report that had been prepared for the project.
Each of these examples shows what’s really at stake in the debate. CEQA is being used to stand in the way of much-needed projects and important priorities for California moving forward.
The initial reaction from lawmakers to the Berkeley case has been to propose further incremental changes. A proposal by Sen. Scott Wiener would allow state public colleges and universities to build housing without conducting lengthy environmental reviews. But this would continue the Legislature’s practice of enacting narrow CEQA exemptions or providing “streamlining” for certain popular or politically-favored projects.
Lawmakers should summon the courage to enact comprehensive reforms needed to fix the worst abuses of CEQA, stop the weaponization of the law by narrow interests, and ensure projects that benefit the public and the State can move forward.
It should start by refraining from enacting any more bills streamlining the process or handing out exemptions – focusing instead on reforms to address the full extent of the problem.
Then, it should focus on improving the CEQA litigation process by requiring lawsuits to be filed with the Courts of Appeal and not lower courts. This would likely make at least some CEQA plaintiffs pause before filing suit and encourage more pragmatic decision-making. It would also reduce unnecessary delays and costs that come from CEQA cases having to first make their way through the trial courts. More discrete litigation reforms can follow.
Finally, lawmakers should increase public transparency requirements in CEQA cases. When we know who is paying for the CEQA case, some project opponents may think twice about filing lawsuits for fear of facing the public’s wrath.
Over the past decade, lawmakers have come together to enact several incremental policy changes to CEQA, showing that it is possible to achieve bipartisan support for more comprehensive CEQA reforms. Given the public outrage over the Berkeley case, it may be the best opportunity in years to enact these long-overdue reforms. More than 3,000 students who won’t be attending Cal this fall hope Sacramento doesn’t squander this golden opportunity for reform.
Chris Carr is Chair of the Environment and Energy practice group at Paul Hastings LLP in San Francisco. He is co-author of The CEQA Gauntlet, a new study published by the Pacific Research Institute (www.pacificresearch.org).