Gov. Gavin Newsom and state legislators loosed a torrent of self-congratulations this week for acting quickly to protect the University of California from having to limit enrollment at its flagship Berkeley campus.

Instead, they should have apologized because what they did encapsulated several of the Capitol’s most worrisome tendencies.

‘Weaponization’ of Environmental Law

The problem that Monday’s legislation purported to solve was that courts, including the state Supreme Court, had accepted the outlandish legal notion that increasing enrollment at UC-Berkeley was a “project” that fell under the purview of the California Environmental Quality Act (CEQA).

A local group, Save Berkeley’s Neighborhoods, sued to block the enrollment increase, contending that it would affect the city’s environmental ambience and therefore was subject to CEQA’s stringent mitigation procedures.

When the state Supreme Court upheld that position, the university quickly sought intervention in the Capitol. With support from Newsom, legislation to invalidate the court decision, Senate Bill 118, was quickly drafted and whisked through the Legislature on Monday for Newsom’s signature.

So what’s wrong with that? Almost everything.

The local backlash against the enrollment increase succeeded in the courts because the Legislature and successive governors had failed for years to overhaul CEQA, which had morphed from a benign instrument for protecting the natural environment into a political weapon.

The weaponization of CEQA is a big factor in California’s failure to close its huge shortage of housing, misused by local opponents of housing projects and by labor unions to compel developers to use unionized labor.

Avoiding Hard Work of CEQA Reform

Former Gov. Jerry Brown once described CEQA reform as “the lord’s work” but never was willing to confront the interests that use the law for purposes having nothing to do with protecting the environment.

Instead of doing the hard work of CEQA reform, legislators and governors have, instead, granted narrow exceptions to the law’s laborious processes for projects with political pull, most noticeably large sports arenas, and made a few tweaks for some kinds of housing. SB 118 continues that practice.

The way in which SB 118 was ushered through the legislative process is also shameful.

First of all, it was drafted as a “budget trailer bill” even though it really had nothing to do with the state budget, by inserting a token $50,000 appropriation to UC. Although budget trailer bills are meant to implement provisions of the budget, they, like CEQA, have morphed into something quite different.

Bending Procedures to Pass Narrow Exemption

Trailer bills are exempt from some normal legislative procedures. Among other things they take effect immediately on being signed but don’t require the two-thirds votes ordinarily required for such immediate actions. Thus, they have become vehicles for making big policy changes almost instantaneously, with scant opportunities for public input.

This sneaky tendency is compounded by the timing of SB 118. A state law, passed by voters but loathed by legislators, requires bills to be in print, available for public inspection, for 72 hours prior to passage. SB 118 was introduced late Friday, while the Legislature was in recess, and the 72-hour waiting period was mostly Saturday and Sunday. The Legislature reconvened Monday afternoon and quickly passed the bill after only brief pro forma public hearings.

“I’m grateful to the Legislature for moving quickly on this critical issue,” Newsom said upon signing the bill. “It sends a clear signal that California won’t let lawsuits get in the way of the education and dreams of thousands of students, our future leaders and innovators.”

Perhaps, but it’s also a clear signal that Capitol politicians will continue to avoid CEQA reform in favor of targeted exemptions and bend procedures when it suits them.

About the Author

Dan Walters has been a journalist for nearly 60 years, spending all but a few of those years working for California newspapers. He began his professional career in 1960, at age 16, at the Humboldt Times. For more columns by Walters, go to calmatters.org/commentary.