An environmental lawsuit brought by Berkeley activists could force the University of California to make drastic cuts to its incoming freshman class. Last week, the university asked California’s Supreme Court to reverse a ruling that could force UC Berkeley to reduce the class of 2026 by more than 3,000 students.
“This court-mandated decrease in enrollment would be a tragic outcome for thousands of students who have worked incredibly hard to gain admission to Berkeley,” the public university wrote in a statement.
Last year’s controversial ruling capping enrollment was based on the California Environmental Quality Act, which requires government agencies—including public universities—to conduct exhaustive environmental impact reviews any time they undertake projects that could have negative environmental impacts. The law is frequently invoked by activists opposed to new building projects. In this case, local activists—as well as the city of Berkeley itself—challenged a university building project to provide more space for the Goldman School of Public Policy.
As part of that legal fight, the activists argued that the university had failed to adequately study the environmental impact of rising overall enrollment at the university. Plaintiffs argued that admitting more students to UC would lead to rising rents, greater demand for city services, “more late-night noise and traffic,” and “more instances of improper refuse disposal.”
The university argued that increasing enrollment wasn’t a “project” for CEQA purposes and hence didn’t require an environmental review. But the judge sided with the plaintiffs and ordered UC to freeze enrollment at 2020-21 levels while it prepares an environmental impact report—a project that won’t be finished in time to admit students for the next academic year.
The university says that freezing enrollment at 2020-21 levels will lead to drastic cuts in the number of incoming freshmen. That’s because, due to the pandemic, enrollment was unusually low that year. A bunch of students took a semester or even a whole year off, and were not included in that year's enrollment figures.
Their subsequent return to campus inflated the number of enrolled upperclassmen. As a result, UC estimates that getting overall enrollment down to 2020 levels will require slashing the incoming freshman class by a third.
A law from a bygone era
The California Environmental Quality Act (CEQA) was passed in 1970, in the early days of the modern environmental movement. At the time, California was growing rapidly and suburban developers were gobbling up land around major cities. CEQA gave environmental activists a way to slow this process down and make sure cities didn’t run roughshod over environmental concerns.
The law is based on two assumptions that reflect the era in which it was written. First, its authors assumed that new construction is presumptively bad for the environment. The law requires environmental review before a city can approve a project that might harm the environment. But if a city decides to block a construction project (like, say, a new bike lane) that decision isn’t subject to environmental review—even if the project might have had substantial environmental benefits.
Second, the law focuses on environmental harms in the immediate vicinity of a project. It pays less attention to the potential benefits of a project—especially if they accrue to the broader public in California, the United States, or the world.
The Berkeley case is a good example of this. It’s probably true that increasing enrollment at UC Berkeley will mean more noise and traffic in the city of Berkeley. But young people who don’t get a spot at Berkeley don’t disappear. They might go to a different school or they might decide not to go to college at all. But either way, some of them will still have loud parties. Blocking them from attending Berkeley just shifts that nuisance somewhere else.
Loud parties are a bit of a silly example, but the same principle applies to more weighty concerns. Over the last 50 years, the world has changed in two ways that make CEQA’s myopic localism and anti-development bias particularly harmful:
- Global warming has become one of the most significant environmental concerns.
- California now has a severe shortage of homes.
These problems aren’t as localized as the ones environmentalists focused on in the 1970s. Global warming is a global phenomenon. The shortage of affordable housing affects the entire Bay Area, if not the entire state of California. In both cases, there’s a tension between the interests of homeowners in any particular neighborhood (who prefer to block new development) and the region as a whole (which needs to expand the housing supply).
A similar, if more subtle, point applies in the case of climate change. California’s temperate climate means that people in Los Angeles or San Francisco use far less energy heating their homes than people in Chicago—and far less energy cooling their homes than people in Phoenix.
Moreover, people who live in urban areas tend to emit less carbon in general. Townhomes and apartment buildings are more efficient to heat and cool than single-family homes. And residents of big cities can more easily get around by transit, on bike, or on foot.
So it's usually good for the environment if California cities expand their populations. And it’s especially good when already-developed areas get denser. Such urban infill development not only reduces carbon emissions, it also avoids the habitat destruction that often accompanies building at the edges of metropolitan areas.
So a sensible regime of environmental regulation would have a presumption in favor of allowing higher-density projects, especially in areas that are already developed. Instead, CEQA systematically slows down development in California.
In the best case, CEQA creates an additional paperwork burden and potentially adds months of delay to any major project in the state. In practice, NIMBY activists and their allies in local government have grown adept at using CEQA to delay development projects indefinitely by ordering endless rounds of environmental review until a frustrated developer gives up.
This last point has become particularly important in recent years because the state legislature has been steadily limiting the ability of local governments to block new housing projects. So cities will be increasingly tempted to use CEQA as an indirect way to block housing projects that they’re no longer allowed to block directly. As a recent law review article explains, there’s an open question about which statute—the HAA, designed to expedite housing, or CEQA, designed to slow it down—will prevail when the two come into conflict.
But what’s crystal clear is that NIMBY activists in Berkeley and elsewhere will continue using every trick they can think of to limit development. That will mean continued housing shortages across the Bay Area and Greater Los Angeles, and increasing affordability problems for non-wealthy residents. If the California legislature wants the state to offer opportunities to everyone, they need to make sure the laws are friendly to housing development. And right now, CEQA is one of the biggest impediments to housing production in the Golden State.