New law a patch for UC Berkeley growth concerns

Swift work by California lawmakers last week rescued the academic hopes of thousands of applicants to UC Berkeley who would have been barred because of a legal interpretation that limited next fall’s student enrollment.

But the new law that nullifies the enrollment cap doesn’t let UC Berkeley off the hook for addressing the environmental impacts of its growing presence in the city. If certain legal puzzle pieces fall into place, the campus could find itself having to halt growth all over again or find other ways to mitigate any ill effects its expansion has on the community.

The new law “is just a kick-the-can-down-the-road partial remedy, a fig leaf,” Jennifer Hernandez, an environmental lawyer in San Francisco and Los Angeles, said of the new SB118, which state lawmakers unanimously approved last Monday and Gov. Gavin Newsom signed into law that evening. The university “will have to do another environmental study and can be sued all over again.”

For the 5,000 or so applicants who will receive admission invitations this spring that they otherwise wouldn’t have, SB118 is a very good partial remedy. Still, the new law leaves UC Berkeley with a lot of work to do.

That’s because the university lost a court case last summer that challenged its seemingly unchecked growth — a case it is appealing. The university also filed a separate appeal over the judge’s enrollment cap requirement and took it all the way to the state Supreme Court, but lost there. That defeat prompted the Legislature to act.

Under that new law — which is retroactive and covers UC Berkeley’s situation — campuses in a similar legal bind have 18 months from the time a court rules against them to rework their environmental impact plans.

“The question is, when does the clock start running?” asked Chris Elmendorf, a law professor at UC Davis and an expert in California Environmental Quality Act, known as CEQA, which is the law Cal’s antagonists relied on to block its expansion. “Suffice it to say that it’s not clear when the clock would start, but there’s a good argument that we’re already six months in.”

UC Berkeley isn’t talking about its timing or what it needs to do to soften the impact of its rising population.

“A court can impose remedies other than an enrollment or population injunction when it finds (campus plans) to be inadequate,” a campus spokesperson emailed.

Money is one compelling way to soothe that kind of town-gown acrimony. In July, the city of Berkeley dropped its objections to campus growth in exchange for $82.64 million over 16 years to cover the city’s costs in police and fire safety and other services because of students.

But Phil Bokovoy, president of a group called Save Berkeley’s Neighborhoods that sued the university, says he isn’t interested in its money.

The group filed suit against UC Berkeley and University of California regents in 2019 on grounds they had allowed campus enrollment to grow far beyond what was planned for, creating more noise, diverting police and fire services, displacing local residents and even harming students because the campus couldn’t house them all.

In fact, the school’s 2005 long-range enrollment projection was off by nearly 9,000 students in 2020, hitting 42,237 instead of the predicted 33,450.

Bokovoy and Save Berkeley’s Neighborhoods hoped to force UC Berkeley to admit only students it could provide a bed for — and to turn away everyone else. UC Berkeley accommodates just 22% of its students in university-owned housing, the worst rate of the nine undergraduate UC campuses.

The state’s CEQA environmental quality law governs the impact of construction projects. Because of an earlier lawsuit from Save Berkeley’s Neighborhoods, its scope includes the environmental effects of student enrollment. The group’s latest suit focused on the Upper Hearst Project on Hearst Street, where UC Berkeley planned to build a small number of classrooms and faculty housing.

“We don’t care about the Upper Hearst Project,” Bokovoy told The Chronicle. “We’ve always said they can go ahead and build that. We care about them adding more people without building any housing for them.”

The strategy worked — at first.

In August, Alameda County Superior Court Judge Brad Seligman agreed with the group’s claim about the environmental impact of burgeoning numbers of students. In his ruling, Seligman cited the university’s own 2017 research that found more than 10% of students had been homeless.

He ordered UC Berkeley to cap its 2022 fall enrollment at 2020 levels — no more than 42,237 students, or nearly 3,000 students fewer than this year’s enrollment of 45,057. The judge also halted the Upper Hearst Project and required the university to fix deficiencies in its environmental impact report.

As part of its appeal, UC Berkeley filed court papers this month acknowledging that its enrollment exceeded what it had planned for, but arguing that it hadn’t known extra students would be considered a “project” under CEQA, which requires government agencies to conduct an environmental review of new projects and include proposals for reducing any environmental harm they are likely to cause.

The university said it went on to analyze the effect of those additional students as part of the environmental impact study it was required to do for the Upper Hearst Project.

The university has said its analysis was properly done.

Enrollment can no longer be considered under CEQA, according to SB118. Now, it’s total population — students and employees alike — that counts.

Specifically, the new law says that if a judge finds that the total population of any public college or university exceeds what the campus planned for in its long-range development plan (required every 15 years), and if it creates “significant environmental impacts,” campuses have 18 months from the court’s order to create a new remediation plan.

Which raises the question: How will UC Berkeley address the environmental impact of its students as required? The campus lost in court last August, and even if the appeals court sides with the university and overturns the August ruling, it’s unclear if that would happen by January 2023 — the 18-month deadline, if the clock started ticking last summer.

The new law authorizes the court to cap campus population if a new environmental impact report isn’t certified within the time period.

“The university doesn’t have time to wait for the appeals ruling,” said Elmendorf, the CEQA expert, adding that UC Berkeley needs to get busy and prepare a new environmental impact plan with a range of methods for mitigating the effects of its population on the area.

“Building more student housing? Training students on partying etiquette? It’s the university’s job to come up with options,” he said.

Part of the process is to circulate the new environmental impact report and solicit public comments. “The public will suggest other methods, and in the final report, the university has to respond to every one,” Elmendorf said.

Meanwhile, UC Berkeley already has an updated long-range planning document, approved in early 2021, that projects its total population will grow another 22% by 2036: 8,500 more students and 3,600 more employees.

“We have not been designated (by the UC regents) as a growth campus, and so we expect the undergraduate student population to grow by an annual average of only 1% or less,” said campus spokesperson Dan Mogulof.

Bokovoy, of Save Berkeley’s Neighborhoods, said the nuances don’t matter much because only one kind of environmental fix matters, he said.

“We want the university to build housing before they add additional students.”

Nanette Asimov is a San Francisco Chronicle staff writer. Email: nasimov@sfchronicle.com Twitter: @NanetteAsimov