One weird trick to make CEQA more predictable
Move compliance from the courts to an executive agency
Well, shit. The court of appeals for northern California upheld another UC Berkeley CEQA lawsuit, delaying the construction of dorms in People’s Park for another year or two. The decision was based on 3 points:
The EIR did not consider sites other than People’s Park.
The EIR did not analyze noise impacts from the students living in the new dorm.
The EIR (which was a joint EIR both for the housing project and the University’s long-range campus development through 2037) did not address the effects of planning fewer new dorms than the planned increase in student and staff population.
(No, the judge did not note the irony of simultaneously punishing UC for building too many dorms and too few dorms.)
The university now must update its EIR with these requested changes before proceeding with the project.
Dotting is and crossing ts
Note that the decision doesn’t stop the university from building on People’s Park. The issues can all be remedied by adding more reasoning to the EIR’s choice of site and being a little more clear about the harms caused by the project and why they’re unmitigable:
While an EIR need not exhaustively explain its reason for excluding an alternative from analysis, unsupported conclusory statements do not suffice…
In their briefs, the Regents spend most of their time developing new reasons for declining to analyze any alternative sites for Housing Project No. 2. The Regents do not explain why the EIR failed to include these reasons.
…
The Regents do not seriously contend the EIR adequately addressed the impacts of student-generated noise. Indeed, they acknowledge the EIR did not (because, in their view, it was not required to) analyze existing or cumulative student noise impacts or the efficacy of mitigation measures. In view of the evidence those impacts might be significant, the EIR was legally inadequate.
…
Good Neighbor asserts the EIR inadequately analyzed POP-1 impacts (substantial unplanned population growth) because the mitigation measure it identified is unenforceable. They are correct…
…while the Regents can ensure the university provides Berkeley and ABAG with summaries of annual enrollment and construction information, they have no authority to compel either entity to undertake planning for university-driven population growth…
Good Neighbor suggests that the Regents could alternatively have made findings that they cannot compel these other agencies to mitigate the impacts, that other mitigation is infeasible, and that the impact is significant and unavoidable. However, the Regents made none of those findings. We conclude the measure is unenforceable, and therefore invalid.
Correcting the EIR and ensuring that the new EIR survives legal scrutiny could easily take another year or two. Since under CEQA the judge did not cancel the project or declare it a violation of environmental law—they can only delay it and require more analysis—it’s not clear what purpose this law is even serving here. Can we achieve a better outcome for the university, and maybe even for proponents of CEQA challenges such as this one?
Limiting the scope of CEQA?
While there are strong arguments for limiting the scope of CEQA for sympathetic projects such as this one, I doubt whether the necessary amount of CEQA reform is politically feasible, and whether it would help here.
As the decision points out, public university housing projects do now have a CEQA exemption. But the exemption does not apply if the housing project requires demolishing a historic structure, and People’s Park has been a local historic landmark since 1984. While I don’t think that demolishing the park’s public restroom, basketball courts, and stage would be a significant impact, I doubt there is a simple legislative solution to deciding which historic resources really matter. Requiring a historic resource analysis of some sort, whether through CEQA or something else, probably makes sense for this project.
Similarly I’m sympathetic to requiring some amount of analysis for government projects that increase noise or affect people’s views. A highway project that creates noise, blocks views, and imposes heavy shadows should be analyzed for the costs and benefits of these impacts. Is it obvious that public university buildings shouldn’t be held to the same standard?
The original goal of CEQA—to limit the capriciousness of the state and incorporate some citizen voice in the planning of large infrastructure projects—was noble. Furthermore, the politics of repealing this 50-year old landmark bill are not good, and attempts to limit the scope of CEQA have not really worked out. I think one underexplored approach is process reforms that maintain the original goals of CEQA but make compliance simpler and more predictable.
Learning from the worst
California’s Housing Element process is not great. But it provides an example of what a better CEQA enforcement system could look like.
In substance, a city’s Housing Element is not too different from UC Berkeley’s 2037 long-range development plan EIR. But while UC Berkeley’s development plan is being nitpicked by a judge and being tossed around courts with potential delays on the scale of years, housing elements are reviewed and approved in a much more timely and straightforward process. Despite the difference in process, housing elements are still held to compliance to a large set of constraints set by the legislature, and must still incorporate public input via a 30-day public review requirement.
However, unlike EIRs, housing elements are approved by the Department of Housing and Community Development (HCD) before being adopted. The statute asks judges to respect the decision of HCD outside of extreme cases:
GOV 65589.3. In any action filed on or after January 1, 1991, taken to challenge the validity of a housing element, there shall be a rebuttable presumption of the validity of the element or amendment if, pursuant to Section 65585, the department has found that the element or amendment substantially complies with the requirements of this article.
So while it’s still possible for affected parties to sue a city claiming that its housing element is not compliant, judges tend to defer to HCD’s decision.
You could imagine a similar process for EIRs: the agency puts the draft EIR up for 30 days of public comment, then submits it to a state agency like CalEPA or OPR. Within 90 days either the state approves it and the project can proceed or the agency receives feedback that it must address in the next draft.
Under this system, environmental policy would be primarily driven by the governor’s appointments to CalEPA/OPR, while the legislature could still have a say by amending CEQA if they don’t like the executive branch’s interpretations. Public opinion would still be incorporated via feedback periods (and via governor and state legislative elections). CEQA lawsuits could still be filed against the local agency in extreme cases. Local agencies would get their decisions much more quickly. And hopefully the incentive to produce long, expensive EIRs would be reduced, now that EIRs are evaluated by a single, well-understood team of Sacramento appointees rather than a large, unpredictable system of plaintiffs and judges.