The California Supreme Court’s March 3rd decision ruling that UC Berkeley must keep its enrollment at 2020 levels was a major blow to the university. In a 4-2 ruling, the court upheld Alameda County Judge Brad Seligman’s order that Berkeley must halt construction on new housing developments and not increase its enrollment. The plaintiff in the case, Save Berkeley’s Neighborhoods, successfully argued that the university’s plan to construct more housing for Berkeley students and faculty did not consider the effects increased enrollment would have on the surrounding neighborhoods, violating a piece of longstanding environmental legislation known as the California Environmental Quality Act (CEQA). Although the university may not ultimately have to cap enrollment, as recently introduced legislation provides Berkeley with other avenues to comply with the court’s decision, the question of whether the university will have to decrease enrollment is itself significant. The lawsuit by Save Berkeley’s Neighborhoods is indicative of a broader, more troubling trend: The strategic misuse of CEQA and environmental laws like it in the United States. If lawmakers are serious about fighting climate change, they must design climate-friendly legislation that cannot be exploited by anti-development activists.
Passed in 1970 under then-governor Ronald Reagan, CEQA subjects state and municipal development projects to be reviewed by environmental impact reports (EIRs) prior to construction. While EIRs vary in format, they must include options for the mitigation of a given project’s negative effects on the environment. The drafts are subject to public review for set periods after they are submitted. But CEQA’s broad purview consists of poorly-defined terms: The act covers all public and most private projects, and it makes few recommendations for the specific content of EIRs, which in turn can balloon to thousands of pages in length. The result? The legislation has become a tool wielded by anti-development activists for causes with weak connections to environmentalism.
Not only has CEQA been applied to prevent the construction of housing for the homeless, but it has also gained notoriety for its use in stymieing projects like bike lanes, which have well-documented environmental benefits. A revealing study conducted by the law firm Holland & Knight found that CEQA lawsuits often obstruct transit, renewable energy, and dense multifamily housing developments, and that nearly two-thirds of the plaintiffs in CEQA suits had no history of pro-environment work. Holland & Knight has long supported significant changes to CEQA, and for good reason: Delaying new construction developments doesn’t automatically help the environment.
Beyond its environmental problems, CEQA has equity issues, too. By centering litigation—an avenue more easily pursued by the wealthy—in the environmental review process, it lends disproportionate power to California’s most elite. Indeed, Save Berkeley’s Neighborhoods is led by former banking executives. Wealthy Californians who can afford to file frivolous and expensive lawsuits have repeatedly used CEQA to block low-income housing proposals in their neighborhoods. Plaintiffs in CEQA suits can even remain anonymous, obscuring the interests at play in any given case. Conversely, while environmental advocates have won some choice victories on their behalf, low-income and Spanish-speaking Californians are less equipped to use CEQA to halt the forward march of oil drilling in their neighborhoods, which research has shown to cause significant health problems for residents. CEQA’s “self-executing” status means its enforcement is left to the public rather than a state agency. If members of the public are not informed or well-resourced enough to file litigation, this status can essentially greenlight the progression of harmful developments.
Thankfully, some California legislators recognize that CEQA is in dire need of an overhaul. State Senator Scott Wiener (D-San Francisco) recently introduced SB 922, which exempts projects such as bike and bus lanes from the CEQA process. But despite significant criticism of the legislation’s numerous flaws in the wake of the Berkeley decision, CEQA still remains standing after 52 years. The act still has some defenders left, and they argue that CEQA plays a key role in ensuring that members of the public—particularly those whose voices frequently go unheard—get a say in determining the landscape of their communities.
Their argument raises a broader question: Can the public be trusted to defend its own environmental interests? Numerous examples of CEQA’s misuse show that the answer is often that it cannot, as discontented Californians have often prioritized their desire to maintain their neighborhood ‘character’ over making progress on the state’s long-term environmental goals. And legislation that aims to grant power to the ‘public’ in the decision-making process over developments frequently confers power primarily to the most passionate and monied members of the public, as CEQA has.
Looking past the philosophical point about public input in neighborhood development, then, there is a much simpler argument against CEQA: Other states seem to be doing fine without legislation like it. Just 15 other states besides California have their own environmental policy acts, and none of them are as expansive in their reach as CEQA. Most of these acts stop at the regulation of state development projects. Only four others apply to municipal developments, and only two—those of Minnesota and New York—apply to a specific, narrow subset of private projects.
There are two logical fixes for CEQA: Repeal it entirely or severely restrict its scope to only state developments, striking local and private projects from the law’s jurisdiction. Both of these fixes are potentially beneficial, given that states with more limited (Virginia) or non-existent (Oregon) environmental acts have both managed to curb ‘not in my backyard’ (NIMBY) obstruction of dense housing developments, which much evidence shows to be environmentally friendly. Repealing CEQA altogether, though, may be a drastic measure since the law does still have some utility in the fight for environmental justice in California. There are some milder yet still significant opportunities for changing CEQA, such as expanding AB 1907’s CEQA exemption on housing for the homeless in Los Angeles to the whole state. More difficult to enforce—but more on-the-nose—might be a provision to exempt all California developments that demonstrably diminish pollution. All of these solutions would help CEQA fulfill its original intent to protect the environment.
The CEQA debate highlights the difficult balancing act facing all environmentally-conscious state governments, between ensuring vulnerable people a voice in their neighborhood governance and preventing residents from acting only on their short-term, environmentally unfriendly impulses. To correct the current imbalance towards NIMBYism, CEQA must be overhauled, as relying on carving out exemptions to correct egregious outcomes like the Berkeley case is not a viable long-term strategy. More broadly, policymakers at the municipal, state, and federal levels must treat CEQA as a cautionary tale as they draft new climate legislation. To protect the environment in reality and not just in spirit, they must avoid vague guidelines, overly broad scopes, and blind deference to public input.