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California Lawmakers Have Solved Berkeley’s Problem. Is CEQA Next?

Students under the Sather Gate at the University of California, Berkeley, last week.Credit…Peter Prato for The New York Times

California lawmakers on 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 Senator 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 Professor Elmendorf over the weekend. Here’s some of our conversation, lightly edited:

What does this legislation do?

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.

So what’s the untouched larger problem?

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.

Talk more about that.

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 U.C. 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.

So what should be the next step?

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

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