VX 2022 Panel – Assessing The Berkeley Case’s Impact on CEQA Law

Kevin James: My name is Kevin James. Most relevant to this panel, I’m a lawyer, but most recently, I was also President of the Board of Public Works in the City of Los Angeles for the past seven and a half years.

To my left, is Doug Carstens, managing partner of Chatten-Brown, Carstens & Minteer, also  the President of the Planning and Conservation League. Doug, of course, has done a lot of work around CEQA.

Jennifer is a partner at Holland & Knight, and has been practicing in this area for over 30 years. Like Doug, Jennifer is extensively published in the area with three books, more than 50 articles on environmental and land use topics, and regularly teaches land use environmental and climate law in law and business schools.

So we're all here, to set the table, on the Save Berkeley's Neighborhoods versus Regents of the University of California. For a simple summary of the case, a neighborhood group sued the university's long term expansion plans under CEQA, saying that the school's growth needs to be analyzed due to its effects on traffic, noise, and housing prices. They're saying that additional students create noise, trash, traffic, increased housing prices, as well as displacement. As this group had success through the court system, it halted enrollment. Going even further, the potential of this case would allow plaintiffs to challenge admissions decisions or faculty hiring decisions for universities throughout the state of California under CEQA. You can imagine the importance and why there's so much interest.

There were a few quick legislative responses, like SB 886 from Senator Wiener. SB 118 was the budget trailer bill that was the direct response that was passed unanimously and signed quite quickly by the governor in just a matter of days.

It is really a fascinating question about the extent of CEQA. It opens up the larger question about what's the reality of serious CEQA reform? Do we just continue working with it around the edges, as some would argue that has occurred in in prior years?

Doug, why don't we start with you—what’s your position on what happened?

Doug Carstens: As you mentioned, there's been some legislation SB 118 has already passed, and 1886 is pending, but well on its way to approval.

In this particular case, there was an agreement in the long-range development plan to actually pay for city services and impact on such things as fire, police, and public health. The City of Berkeley, in addition to the petitioners group here, actually sued the university and settled out with a very large financial payment to address these impacts without going all the way through the court system as the as the group did.

This was something that made its way up to the Supreme Court because the stay that was issued by the trial court judge and upheld by the Court of Appeals was taken to the Supreme Court. Justice Liu and another Justice issued a dissent in the denial of grant of reviewing, saying that the group should be able to work it out. Neither party should, in their long-term interest, stick to either creating impacts without mitigating them or pursuing litigation so that students wouldn't be able to attend.

 One of the more famous cases on CEQA was Laurel Heights Improvement Association. It was a community association pushing back about the expansion of a university. City of Marina was also a case where a campus was expanding and having impacts and whether it could be mitigated or not was the question. I see these as a continuing history of dealing with impacts that are created.

Kevin James: Jennifer, let's hear your take on it once you first saw the results coming in from the courts, and then go from there. 

Jennifer Hernandez: In 1987, I was hired as UC’s first environmental lawyer. It was the direct outcome of the Laurel Heights case. I was an environmental lawyer, so I knew a lot about waste, air, water, and endangered species. I showed up and they handed me a traffic report for Santa Barbara. I was like, “What's this?” They said it's environmental. They told me there's this thing called CEQA which is a land use law.

CEQA has become the tool of choice for litigating land use decisions that some people either don't like or want to leverage for something else. More than half of CEQA impacts come from people. Buildings don't flush, people do. It's always been an anti-people law. It's people's cars. It's people challenging parking spaces. It's a people law. The other thing is rich, white people get pissed more effectively.

Years ago, the California Supreme Court looked at a growth plan for the San Diego State campus. San Diego State was saying they were going to grow. They were doing fabulous work, had so many first-generation kids. They were an engine of this economy. The city and transit agency were like, “only if you give us money.” So, they sued to get money. CSU said they didn’t have money. They were told to go to the legislature. The legislature said they weren’t going to give them money. CSU came back and said it was infeasible for them to take care of all of the traffic and transportation issues associated with the expansion of this campus. The California Supreme Court told them to grow somewhere else, raise money from your alums. They have to mitigate, or not grow.

So, Berkeley comes out. What's different about Berkeley? Now, 3000 fewer kids are going to get admission offers. Those 3000 fewer kids come from wealthier, whiter families than San Diego State. Even communities of color who send their kids to Berkeley have higher family incomes. Yes, there are first time students going into Cal, but the average household income is higher.

Now you have rich, white people, second and third generation college kids from wealthier families, who are part of communities of color, and Asian people who have fought like hell to beat quotas that used to limit Asian kids at Cal who look at this environmental goofiness which says now  their kids can't go, and they go berserk.

That's the story of Berkeley and of CEQA. It keeps new people, who tend to be younger, browner and less wealthy, out of rich neighborhoods. I've got the data for it, and it's most frequently used to block housing.

There is a fabulous case that just came out in Tiburon, where for lots of different reasons, the county was required to approve three single family homes on not less than half an acre on this plot of land in Tiburon. They tortured the people who were trying to get it done for 12 years. Then, they sued anyway. The court in the last five pages of this decision goes off.  Justice Liu in the dissent in Berkeley, asks what are we doing with this law? This was a housing project next to an existing city that took 12 years before they get to court. This isn't a steel mill on a major California River, of which there is precisely one.

CEQA has gotten hijacked into the redlining tool of our time. It's gotten further hijacked with vehicle mile travel reduction mandates. This was just an embarrassing application of CEQA to a priority for rich, white people, who immediately got some legislative relief.

Kevin James: Doug, in the challenges around CEQA, there is the specific criticism that we just heard from Jennifer. In addition, recognizing the good elements of CEQA like making it harder to build oil refineries or to drain wetlands, CEQA has been used to stand in the way of affordable housing or public transit. What's the response to that, recognizing that CEQA still is so heavily supported by environmentalists and labor unions and neighborhood groups?

Doug Carstens: First of all, I want to agree that there is systemic racism in California, I think we can all it's, even in the nation. Recognize that and I wonder if I might get the overhead again. With the Berkeley case, one quote I want to refer to is from Assemblymember Luz Rivas, who, as the Chair of the Assembly Natural Resources Committee, said this particular case, “…isn't CEQA litigation run amok, but a case where UC Berkeley disregarded the clear, longstanding requirement to plan for increased enrollment.”

CEQA does have a tendency to be a convenient punching bag because it takes the place of planning that should have been done well and over a longer term. When things happen, like a enrollment cap is exceeded, then it's a very easy scapegoat to point to CEQA and say that's just brought the whole system to a halt. There are plenty of reasons other than CEQA for the events of the world.

I think I have the receipts and the evidence to show that CEQA’s actually been overall beneficial to the state. The economy has grown and been very strong with CEQA in place. Even more than that, CEQA actually helps environmental justice communities and it helps us address climate change. CEQA, at its base, does two things very well. It requires the transparency of government to disclose what the government is doing, and it requires environmental protection. If those two core purposes conflict with each other, environmental protection is going to get sublimated. CEQA has procedures by which you can override significant impacts as long as the government has been transparent with you.

We can talk about how environmental justice communities have relied on CEQA and used it to empower communities that haven't had power before. If that means decisions in governments take longer and require the incorporation of views of a wider range of people than the project proponent and the agency itself, I think that has been a benefit to California.

I've heard people talk about US exceptionalism, and I have some disagreement. I feel something of a California exceptionalism. I think California is, perhaps, the best state in the country. For me, California's environment and strong economy are its high points and have been helped by CEQA.

 Kevin James: Senator Weiner has called CEQA, “the law that swallowed California.” I assume that you may agree with that, but what's the solution? It seems like every election cycle the conversation resurfaces about CEQA reform. At the end of the day, we end up finessing it around the edges. We always run into these insurmountable hurdles. Based on where we are right now, how would you characterize the prognosis for any kind of meaningful CEQA reform? What would it look like?

Jennifer Hernandez: You can wait for all Baby Boomers to die because this law is a creation of a generation, as it's applied today, to freeze the status quo. We like it the way it used to be. We sure as heck don't want more irritability, which we define generally as having to wait in traffic. There's also billions of dollars spent every year doing environmental analyses and litigating CEQA lawsuits, so there's also a constituency group that's quite righteous about the necessity of preserving, even strengthening, CEQA’s scope.

It's also a law that benefits from its ambiguity. What would happen, if say, the IRS lost 40 percent of the tax appeals that were filed? You could go to court and have a 40 percent chance of paying less taxes. People who could afford to go to court would. That is CEQA. It's about a 40 percent loss rate, which is quite unusual for administrative law.

What this whole conference is about is the need to make dramatic changes in our energy infrastructure and water infrastructure. We're confronting a change in the status quo, which has come to us. Are we going to make those adjustments by paying people like Doug and I for 10 more years to fight about whether a transit line goes in? That's the path we're on.

If you want change, you must start with changing CEQA. There's no way around it. I was listening to Ezra Klein talk to the head of Jacobin, and they agreed we can't do an energy transition unless we change NEPA.

To your point, CEQA is very important once, but it needs to be one and done. When a city changes its housing element, it doesn't mean that if you don't like it, you sue. Rather, if you have a housing project that complies, you go get your permit. You don't go through another 10 years’ worth of CEQA.

Playa Vista was sued more than 30 times. Do you know how much cheaper that housing would have been had it been built at the first of its 20 year lawsuit run as opposed to after two developer bankruptcies and one bank bankruptcy? There are costs to delaying everything endlessly.

People don't have a lot of confidence right now, to say the least, in government to do anything. If the answer is build back better, we had more transit systems sued under CEQA than highway projects. CEQA is the top tool for stopping housing. Two-thirds of the CEQA lawsuits challenging housing, according to the Air Resources Board, allege insufficient greenhouse gas or VMT impact analysis or mitigation.

I used to keep score in Catholic school for like fifth grade basketball. When you throw up a jump ball with a bunch of fifth graders, anything could happen. That's what CEQA litigation is. As soon as the lawsuit’s filed, the project isn't shovel ready, the money doesn't flow, there are not loans or grants. California farted around with CEQA lawsuits, and other states took Obama money. We repaired potholes; other states built entire systems. We can't do CEQA as it is, and the simple answer is one and done. We’ve got to be able to implement the plans we've adopted.

Kevin James: Doug, you can respond to that any way you want. The one thing I want to put on the table for you is just a suggestion that some folks will say that maybe CEQA should be dropped for local impacts associated with population growth in urban areas.

Doug Carstens: One thing that CEQA protects is the communities that are living in those areas already. I'm not talking about the wealthy white communities. I’m talking about communities in urban areas that in some ways are seen as either sacrifices or opportunity zones for commercialization and market rate housing, which then creates displacement and gentrification. When there's displacement or rents are increased or people have to move out of the houses, that can contribute to the homeless crisis. It can also create health impacts from housing insecurity.

There are groups that have actually worked with people in those communities of color and areas that are disadvantaged, who have perceived and written about the need for a stronger CEQA. One of them most recently in September 2021 is Ashley Werner. She works with the Leadership Counsel for Justice and Accountability. She had written in Cal Matters that housing justice relies on a strong CEQA, and that “this is a moment of opportunity to move beyond the legacy of environmental injustice and create housing justice for all”.

CEQA is seen by these groups that work with people who are actually impacted by government decisions as their strongest tool and most likely ability to participate in government for which they've been excluded in large parts. I know lawsuits are always the headline, but there are groups like the Crenshaw Coalition, where in order to promote and protect their neighborhoods, it's not a question of stopping the transit line necessarily, but making sure when it's built, that the impacts it creates are taken care of, and the people that are impacted see mitigation measures and reduction or elimination of impacts.

CEQA is about actually caring about the impacts that are created by these projects and then going ahead with the projects anyway, as long as the people that are impacted by it are taken care of. A lot of the problem with moving forward without CEQA is that the impacts will be created nonetheless, it's just a question of whether people will be restored or mitigated or whether they'll just have to be on their own and carry forward on their own resources.

Kevin James: Regarding needing a state law coming out of Berkeley, it was really about noise, traffic, and trash by population growth. I don't know that we need a state law to deal with noise, traffic, and trash. Recognizing municipalities working with other agencies for the building of projects, whether it's housing or transportation, there are ways there are other ways besides the state CEQA law.

Jennifer, is there this concern that if we revise CEQA in this way and rely on the municipalities more to do this work, that we're going to end up kind of back to the same concerns that folks have such as the situation of redlining and some of the systemic racism that has been the story? 

Jennifer Hernandez: I think that's a definite risk, but I think it's manageable. Daylight, in particular, is pretty helpful in managing that risk. CEQA lawsuits are done in the dark, and you're dealing with best in class. I can't tell you how many CEQA lawsuits I've handled where like 50 grand takes care of the lawyer, lawsuit goes away. 

I want to though, go back to a very valid point that Doug made about the concerns of communities that are getting something which I view as pretty environmentally beneficial, like infill housing, who are upset about it. The idea that CEQA and CEQA lawsuits are the right response is a hit and a miss.

For the last 50 years, we have been watching the systemic displacement of black and brown neighborhoods throughout California. Places where there used to be higher minority populations have been shoved out because that's where housing is actually affordable. People can’t just spend four grand a month on rent for a one bedroom in a high rise next to a next to a metro station. 

That is our environmental prescription under climate. That is what we are demanding. They don't want those starter homes in the suburbs. God forbid people will drive, or turn on their air conditioner. People can't live in and can't live out: where do you go? 7.5 million Californians have left. Those are mostly working families. You try to raise your kids right now with a median income, union job, and try to buy a house. It's 800 grand. We are attacking our working people.

You want to talk redlining? SCAG says, according to our climate dogma, we’ve got to build new housing next to transit. In Long Beach, there are these historically racially redlined neighborhoods. They were built by aerospace for white families only. They're lovely, and SCAGs determination is that no new housing should be built in those locations. Where should housing go? Housing should go down here where the metro line is. Those are overwhelmingly poor people of color. That is where we should put our transit-oriented housing to solve the housing crisis in an era of climate change. These are historically lower-income, black and brown communities.

We don't want to trouble these rich people, so let's just put all these people here. Doug would represent community group saying not to do that. Then, God forbid, we try to just complete the build out of Ontario where the majority now of new homes are being purchased by communities of color. Not here, not there, not anywhere. Housing in California Environmental dogma is a Dr. Seuss thing. That means not those people. This isn't about environmental impacts; this is racial redlining. 

Doug Carstens: I really appreciate presenting with Jennifer because we have very similar thoughts about the abhorrence of racism and white supremacy. You're right, we would represent groups in areas like that. We actually are fighting for livability and parks. This is a very park-poor area in West Long Beach. They've been deprived because they have been seen as a sacrifice area for the industry. Because other people who have more means didn't want to live there, these areas have become permanently redlined.

In order to lift out of that situation, there are people who rely on laws like CEQA to ensure that not just that projects are stopped, but that they're made better for the community. You might have a warehouse that could still go in, but you could also have a park that goes with it.

We actually worked on a project in the City of Los Angeles that was going to be 40 acres of warehouses. Everybody needs warehouses, but it was a very park poor area. After the community organized themselves and expressed what they actually wanted and worked with City Hall, a park was created. It's the State Historic Park of Los Angeles.

My point is, there are ways that projects can move forward even with CEQA review because CEQA does not, contrary to some belief, stop projects. There is a process that is required to go through, but if a project is the worst ever and has significant impacts across the board, an agency can still approve it if they take accountability for it and explain why they are approving it.

There are lots of reasons other than CEQA that it's difficult to move forward with a proposed development. People say red tape, generally. There are a lot of general plan requirements, zoning, Municipal Code requirements, a lot of things, other than CEQA, that are interfering or stopping housing, yet CEQA, because it's the comprehensive catch all, receives the blame for all of this.

There are cities that don't have strong, for instance, tree removal ordinances or ability at the municipal level to control development. Cities cannot tax the University of California if they have impacts next door. The whole City of Marina case was about was a jurisdiction next door to an expanding university trying to say they’ve got to work with them and mitigate and pay for the impacts they're creating. The university said no, and the city of Marina had to take them to the Supreme Court to say they've got to prove it's truly unfeasible before rejecting mitigation measures.

Similarly, in the Berkeley case, the City of Berkeley sued for the same reasons of imposing burdens without providing the services that the university had contractually agreed to do. The City of Berkeley had to sue using CEQA among other things, but then was able to negotiate out a resolution. That's why it's not City of Berkeley versus the Regents. It's the Save Berkeley Neighborhoods.

These are concerns that are widely shared, and when they're taken care of, projects can go forward and people can cooperate in a society where everybody's interests are protected.

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Following this VX2022 panel, Jennifer Hernandez contributed the following additional commentary on anticipated UC enrollment increases:

"Like all these big number housing promises, the truth is – especially in wealthier communities – the bigger the student dorm, the more certain the CEQA lawsuit with endless delays etc.  We have a great appellate court case in Tiburon re CEQA abuse and housing (the last 5 pages are particularly worth reading, in my honest opinion), but of course the outcome of that appellate court decision is that the neighbors finally ponied up enough money to buy out the longtime family owners of the housing property – so end result is no housing, big surprise.

See the latest on the FOUR lawsuits challenging a dorm AND a supportive housing project for the homeless on a portion of People’s Park in Berkeley.

The CEQA-as-Anti-Housing Redlining story is getting to be old news. 

Pretty shameful, in my honest opionion, that none of the prominent environmental organizations are willing to condemn this anti-housing CEQA abuse – which I attribute in no small part to the fact that Jerry’s old org, the Planning and Conservation League, has a Board that is dominated by CEQA petitioners' lawyers who make a living from these CEQA lawsuits. 

Housing continues to be by far the top target of CEQA lawsuits by the way (we are compiling our third study of 3 years of CEQA petitions now), and while we haven’t gotten far enough to verify this independently, CARB reports that 2/3rds of anti-housing CEQA lawsuits allege GHG and VMT deficiencies.  Pretty stupid anti-climate use of CEQA given that CA has the lowest per capita GHG in the US, and even CARB Board member and UCD/national transportation expert Dan Sperling confirmed that VMT reduction mandates haven’t, and can’t, work and need to be dropped from the Scoping Plan.

“Smart growth” like “smart people” turn out to be too often clueless when it comes to housing, homeownership, transportation, and civil rights.  CARB’s prescription for “forcing” VMT reductions: making CARB in charge of local land use decision-making – Mary’s longstanding goal of converting CARB into the Coastal Comm’n for all of CA.  Great recipe for ethnic cleansing."