The War on Environmental Quality Loses a Berkeley Battle

Becky O'Malley
Monday February 27, 2023 - 11:30:00 AM

UPDATE: March 23, 2023

Frankly, I’m getting pretty tired of being right. The 20th anniversary of the ill-fated U.S. invasion of Iraq is also the 20th anniversary of the O’Malley family’s ultimately unsuccessful attempt to provide Berkeley with a printed newspaper. Here in Berkeley that spring we made every effort from day 1 to warn the Bush administration that their foray into the middle east was doomed, but they ignored us—what a surprise.

Along with our correspondents and our extended families we marched with signs in Berkeley and San Francisco. Many wrote about it, here in Berkeley and elsewhere. A San Francisco Chronicle reporter marched and didn’t write about it but was fired anyway. The war against Iraq took no notice, even though all of us were right.

This month we have the opportunity to say “I told you so” one more time about the Iraq invasion.. Cold comfort, at best. So much for being right. And even on a much less consequential matter, it’s depressing.

On Tuesday it was profoundly dispiriting to watch the Berkeley City Council discuss sending a “letter” to the California Supreme Court advocating review of the California Appeals Court’s unanimous decision that UC Berkeley’s environmental impact report for its proposed People’s Park construction project was inadequate. The resolution’s sponsors, Mayor Arreguin and Councilmember Rigel Robinson, a UC graduate student, claimed it was an “urgency” item, exempt from Brown Act noticing regulations because the council was about to go on recess. Take a look, and don’t forget to click on the links.

Urgency Item

Authorizing the City Attorney to Submit a Letter in Support of the UC Regents Petition for Review in
Make UC a Good Neighbor v. Regents of University of California
From: Mayor Arreguin (Author) Councilmember Rigel Robinson (Co-author)
Adopt a Resolution Authorizing the City Attorney to submit a letter in support of the University of California Regents’ petition for review to the California State Supreme Court in Make UC a Good Neighbor v. The Regents of University of California.
Financial Implications: This resolution has no direct financial implications. However, further delay of the University’s development project at People’s Park may cause the City to incur costs to continue temporarily housing unhoused residents, in addition to additional staff time.
Contact: Mayor Jesse Arreguin, (510) 981-7100

It was painfully apparent that six of the seven councilmembers who attended the meeting either hadn’t read the appellate decision or had read it and didn’t understand it or were deliberately trying to mislead the public. I’m not sure which one is worst.

Resolution sponsors Arreguin and Robinson, who are probably in the third category, disingenuously claimed in their submitted draft that the decision turned on the fact that UC had not considered possible noise emanating from student housing. It’s true, the judges did say that, but more important, they also said that UC had totally failed to follow the California Environmental Quality Act, the law which requires UC to give alternative sites at least perfunctory consideration. (See below for a full discussion.) The Arreguin-Robinson draft resolution doesn’t mention alternatives at all.

I have not been able to procure a copy of the final draft as passed, supported by all councilmembers present except Kate Harrison. She says she’s not opposed to the project per se but does believe in following the law. What a concept!

It will be interesting to see what the Berkeley City Attorney, who probably does understand the decision, is able to say with a straight face in that letter she has to write.

And if the California Supreme Court declines to reconsider the appellate decision, I’d not be surprised. If that happens, I'll say, with no regrets, I told you so. 



February 27, 2023 


Presumably by now you’ve seen various erroneous fulminations in the developer-captive press about the unanimous California Appeals Court decision that the Environmental Impact Report about UC Berkeley’s lust for People’s Park construction didn’t meet the requirements of the California Environmental Quality Act. 

The opinion is straightforward, well written, in ordinary language, not legalese. Anyone who cares should be able to read it and understand it. You’ll find it here.

It's really simple, with only two operative provisions. First, it reiterates that “an EIR must consider potentially feasible alternatives to a project.”

Well, sure. I didn’t go to a UC law school, and I’ve never practiced environmental law, though I did pass the Bar, but even I remember that rule—it’s not news. Here I must say that friends with better qualifications than mine who have read the full pleadings, as I have not, tell me that the legal work on behalf of the defendant Regents of the University of California on this case was incredibly sloppy.

The judges agreed:

…[A]rtfully drafted language … cannot substitute for a conclusion based on facts in the record that there are no potentially feasible alternative sites where the project would cause less damage to historic resources. The Regents’ explanation, premised as it is on ambiguous generalizations rather than analysis and evidence, failed to serve the purpose of enabling informed decision-making and public discussion.”

And then there’s the noise question. The Environmental Quality Act clearly states that excessive noise can be an adverse environment impact, yet counsel for the Regents now seem shocked, shocked, to hear that students can be very noisy.

Here’s what the Court had to say about that: 



…[T]he Regents’ argument is hard to square with their concession that loud student parties in these neighborhoods are a problem. For more than a decade, the university has partnered with the city and with neighborhood groups to discourage loud parties. It provided funding to neighborhood groups for this purpose. It collects data on the issue and meets regularly with the city and neighborhood groups to discuss progress and 36 potential new initiatives. Presumably the university said and did these things because the university agrees that student noise is a genuine problem and not because the university is prejudiced against its students. None of this can be waived away as speculation, unsubstantiated opinion, or bias. 

But the jackals are already gathering. 

"The courts are micromanaging. It's none of the courts' business where UC Berkeley decides to build housing on its land," California State Senator Scott Wiener told Channel 7. 

Really? Scott Wiener, who went to a much fancier law school than mine and also passed the California Bar, certainly knows better. 

In this country, the laws still apply equally to everyone, and land use regulation enforced by the courts is a well-established policy. Democrats have traditionally accepted that. However, in what is becoming a one-party state, Wiener and his YIMBY chums, including our own Assemblymember. Buffy Wicks, are increasingly assuming the role of Republicans-lite, inveighing against all kinds of regulations on development at every opportunity. 

Among them is our greasy Gov Gavin, who twittered this on Sunday: 

"Our CEQA process is clearly broken when a few wealthy Berkeley homeowners can block desperately needed student housing for years and even decades… 

“California cannot afford to be held hostage by NIMBYs who weaponize CEQA to block student and affordable housing. This selfish mindset is driving up housing prices, and making our state less affordable.” 

Who’s calling who a wealthy homeowner? Wikipedia tells us that in 2006 Newsom paid $2,350,000 for his home in San Francisco and then put it on the market in 2009 for $3 million. In today’s hot market that house is probably worth a whole lot more. And if that’s not enough, remember that Newsom’s career has had the not-so-shabby Getty family as his fiscal sponsor. 

I know many long-time People’s Park supporters, and few among them approach Newsom’s wealth. For the most part the appeal’s backers are ordinary Berkeleyans who believe that every neighborhood needs its calm green space, and national historic resources deserve respect. Most don’t live near the Park, and those who do are tenants, not homeowners. 

What does Gavin Newsom, who didn't go to any law school, believe about CEQA? From his tweet: 

"The law needs to change, and I am committed to working with lawmakers this year to making more changes so our state can build the housing we desperately need."  

Oh, you don’t like having to obey a law, so let’s just do away with it, right? That sounds a lot like Ortega’s Nicaragua or Netanyahu’s Israel or Orban’s Hungary or Putin’s Russia or Erdovan’s Turkey—could it be a trend? 

Well, it’s reached California. See, e.g. Assembly Bill 1700, an amendment to state law covering environmental resources, which was introduced on February 17 by Assemblymember Josh Hoover of Folsom: 









“SECTION 1. Section 21085 is added to the Public Resources Code, to read: 21085. For purposes of this division, population growth, in and of itself, resulting from a housing project and noise impacts of a housing project are not an effect on the environment.”  









And yes, it’s going to be bi-partisan. Josh Hoover is a genuine full-strength classic Republican (though I hope no relation to Herbert or J. Edgar). He should fit right in with Dems. Scott, Buffy and Gavin, who have similar legislation under advisement, despite opposition from labor and environmentalists. 









These Sacramento pols, both Democrats and Republicans, are all working the same side of the street when it’s about CEQA, aren't they?