Is This the Year California’s Development-Killing Environmental Review Law Sees Serious Reform?

In February, a California appeals court ruled that the University of California, Berkeley would have to halt its plans to build a much-needed student housing project on the site of Berkeley’s famed People’s Park until it studied the excess noise the future student occupants would cause.

The lawsuit was brought by a coalition of neighborhood activists under the California Environmental Quality Act (CEQA), which requires government bodies to study and mitigate the environmental impacts of projects they undertake or have a discretionary role in approving.

The decision sparked outrage across both California and the nation. A law meant to stop highway projects paving over wetlands was being hijacked by NIMBY (not in my backyard) activists to deny college students housing.

“California cannot afford to be held hostage by NIMBYs who weaponize CEQA to block student and affordable housing,” thundered Gov. Gavin Newsom, a Democrat, in a statement. “This selfish mindset is driving up housing prices, and making our state less affordable. The law needs to change.”

Legislators echoed these sentiments, introducing immediate fixes while vowing more comprehensive action to come. Blogs and editorials pointed to the appeals court decision as just more evidence that California, and America generally, had lost its ability to build the things it needs.

If this sounds familiar, it should.

A nearly identical set of facts played out last February when a California appeals court ruled in response to another CEQA lawsuit brought by neighborhood activists that U.C. Berkeley had failed to properly study the impact of its growing student body on the surrounding city.

The decision required the university to slash its enrollment by several thousand students until those studies could be done. Given the timing of the ruling, it would mean that some would-be freshmen who had already been accepted to the school would have to find somewhere else to pursue their education.

Newsom issued a statement criticizing that ruling. His administration filed an amicus brief in support of the university’s (ultimately unsuccessful) appeal to the California Supreme Court. Legislators passed new laws to reverse the decision and exempt future student housing projects from CEQA. Essays in The New York Times and The Atlantic treated it as the epitome of America’s staid Boomerocracy.

Despite all the outrage and even the successful passage of reforms intended to exempt student housing projects from CEQA, the state has wound up in a near-identical position one year later where neighborhood activists are using the law to stop a U.C. Berkeley student housing project.

The problems with CEQA aren’t new. They’ve been talked about for years. The law’s ability to stop or delay a wide variety of projects—including new housing, new hospitals, new bike lanes, new burger joints, new solar plants, and new marijuana dispensaries, to name a few—has produced a diverse set of critics eager for reform.

“It’s the law that swallowed California. This state is addicted to CEQA,” says state Sen. Scott Wiener (D–San Francisco). “Anyone with the resources to hire a lawyer can delay a project for years and years.”

The same features of CEQA that make it so controversial also make it so hard to reform. Almost every interest group in the state sees some merit in using CEQA to stop projects they don’t like or to wring concessions out of project sponsors.

“If you want to start to open up the law itself, you instantly get into these very complex coalitional negotiations with an ever-shrinking piece of what you set out to do in the first place,” says Matt Lewis, communications director for the housing advocacy group California YIMBY.

Reforms that can pass the Legislature are, therefore, exceedingly marginal. Even when reformers leverage serious outrage at CEQA abuse to sweep whole categories of projects out of the law’s purview, the caveats and conditions they include often defang their reforms. Whatever marginal improvements do make it out of the political sausage grinder are also easily erased by courts who see it as their duty to broadly interpret CEQA.

The CEQA deja vu over U.C. Berkeley is a great example.

Last year, Wiener capitalized on the negative reaction to the U.C. Berkeley enrollment decision to pass S.B. 886. It exempts student housing projects on or near public university campuses from having to go through CEQA, provided “they adopt stringent energy and environmental design standar