Seeking An End to CEQA?

In Conjectures and Refutations: The Growth of Scientific Knowledge, Karl Popper tells us that “Every solution of a problem raises new unsolved problems.”. While some might dismiss this as “negative thinking”, I believe that it is a simple statement of reality.

We are seeing some of this in the debate about the California Environmental Quality Act (CEQA, pronounced see-qua) and other similar laws.

CEQA is considered the the premier environmental law in California, and many people would say the nation. It was passed in 1970 and signed into law by Ronald Reagan.

At the time, development in California was running pretty rampant, and proceeding without much thought about potential impacts on habitats or even general levels of water or air pollution. The law was put into place to make sure that the environmental impacts were considered in any development plan. Critics, mostly developers, are now saying that the law is obsolete, and has been amended with carve-outs to create a patchwork that should be overhauled.

There has been a big dustup because the CA State Supreme Court prevented UC Berkeley from building housing for a growing student population as a result of a lawsuit based on CEQA Ezra Klien presents the critics views in his op-ed Government Is Flailing, in Part Because Liberals Hobbled It

If the number of students at U.C. Berkeley seems of questionable environmental relevance, well, I’d say you’re right. If this sounds to you like a bunch of homeowners who don’t want more college kids partying nearby, I’d probably agree. But the courts sided with Save Berkeley’s Neighborhoods and froze the university’s enrollment at last year’s levels, forcing it to potentially cut back in-person admission for thousands of students and ordering it to conduct a deeper assessment of the harm students could inflict (more trash, more noise, more homelessness and more traffic were all mentioned in the court case, if you’re curious about the specifics).

This kind of NIMBYISM is noxious. The way to ease homelessness in Berkeley is to build more homes for everyone, not keep out a bunch of kids looking to better their lives. And if there’s too much trash, maybe nearby homeowners, who’ve seen their property values rise to astonishing levels in large part because of U.C. Berkeley’s gleam, should pay higher property taxes for more frequent pickup. But on its own, it’s hard to get too exercised about this suit. The world has bigger problems than the size of Cal’s incoming class.

Klein gets it really wrong when he says that trash, noise, increased homelessness and traffic are not environmental issues. They are, and to simply dismiss these concerns is reckless.

The actual issue, is that the last EIR in 2005, did not project the enrollment increases that Berkeley wanted to implement. Plaintiff’s contended that the increase in enrollment required a new EIR, and the court agreed.
The court explicitly stated that the ruling does not in any way put a cap on enrollment, merely requires that the impact of increasing enrollment would have, and for all the huff and fury, sounds right to me.

We reject respondents’ arguments that applying ordinary CEQA principles to enrollment increases would require annual CEQA review of enrollment levels, would turn enrollment projections into an enrollment cap, and would interfere with the Regents’ authority over public higher education. First, respondents have options to avoid annual CEQA review. For example, they could analyze a range of enrollment levels in a program EIR, based on reasonable estimates for high and low scenarios, giving them CEQA coverage for year-to-year variability and for increases within the range. Agencies routinely use program EIRs to avoid preparing multiple EIRs for a series of actions. (See generally, Kostka & Zischke, Practice Under the California Environmental Quality Act(CEB 2019),§§10.13-10.21.)Second, our decision in no way caps enrollment at the University of California or obstructs the Regents’ authority. We are merely requiring the Regents to comply with CEQA. “[W]hile education may be [the University of California’s] core function, to avoid or mitigate the environmental effects of its projects is also one of [its] functions.”

Emphasis mine.


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