First District Court of Appeal Finds University of California’s Decision to Increase Enrollment Is Not Exempt from CEQA Review

October 29th, 2020

By: Thomas Law Group



In Save Berkeley’s Neighborhoods v. Regents of the University of California (2020) 51 Cal. App. 5th 226, the First District Court of Appeal overruled a demurrer rejecting community members’ allegations that the University of California at Berkeley (UC Berkeley) violated CEQA by failing to analyze enrollment increases beyond the development envelope considered in the campus Long Range Development Plan (LRDP).

In 2005, the University of California (University) prepared a Program EIR for its UC Berkeley LRDP. The LRDP EIR anticipated enrollment would increase by 1,650 students over the length of the plan. Following the certification of the LRDP EIR, the University made a series of decisions culminating in an increase in UC Berkeley’s enrollment by 8,300 students in 2018 – 6,650 more than anticipated. Save Berkeley’s Neighborhoods (Save Berkeley) filed suit, alleging the University violated CEQA by increasing enrollment beyond what was projected in the 2005 LRDP EIR without conducting further environmental review. Specifically, Save Berkeley argued that increased enrollment caused significant environmental impacts that were not analyzed in the LRDP EIR, including increased use of off-campus housing by students (leading to increases in off-campus noise and trash), displacement of tenants and a consequent increase in homelessness, exacerbated traffic, and increased burdens on the City of Berkeley’s public safety services (including police, fire, and ambulance services).

Respondents demurred, contending Save Berkeley cannot state a cause of action for violation of CEQA because, under Pub. Resources Codes section 21080.09, the enrollment increases are not a CEQA “project” or a project change requiring subsequent environmental review. The trial court upheld the demurrer, and Save Berkeley appealed.

While the First District ultimately did not reach the underlying question if increasing enrollment significantly contributes to the alleged environmental impact, the Court held the trial court misinterpreted Pub. Resources Code section 21080.09 and found that it does not shield public universities from complying with CEQA when making discretionary decisions to increase enrollment.

The Court first addressed whether the University’s activities qualified as a “project” under CEQA. CEQA applies whenever a public agency makes a discretionary decision that could have a physical effect on the environment, and it is well established that CEQA requires public universities to mitigate the environmental impacts of their growth and development. (City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 349.) In this context, the Court found that growth includes student enrollment increases, which the Legislature acknowledged “may negatively affect the surrounding environment.” (Ed. Code, § 67504, subd. (b)(1).) Because changes in university enrollment have the potential to result in physical environmental effects, the Court found that decisions by public universities to increase enrollment are projects subject to CEQA.

The University asserted that section 21080.09 effectively exempted them from analyzing increases in enrollment unless or until a physical development project is approved. The Court rejected this argument because section 21080.09 does not purport to exclude enrollment increases from the broad definition of a “project” under section 21065. Additionally, the Legislature has recognized that both enrollment levels and physical development are related features of campus growth that must be mitigated under CEQA. (See Ed. Code, § 67504, subd. (a)(1). Based on this analysis, the Court concluded that section 21080.09 does not exempt the University from CEQA compliance when it makes enrollment decisions that are not tied to an LRDP.

Finally, the Court agreed with Save Berkeley that an increase in enrollment above the amount analyzed in the LRDP EIR constituted a project change. Under CEQA Guidelines section 15162, an agency must prepare a subsequent or supplemental EIR whenever a project change would result in a new or substantially more severe environmental impact. Because new or more severe environmental impacts could result from the enrollment decisions, the Court overturned the demurrer and remanded to the trial court for further proceedings.

Key Point:

Pub. Resources Code section 21080.09 does not exempt public universities from CEQA review related to enrollment increases. Regardless of whether there are any physical changes, new increases in enrollment must be accompanied by an environmental analysis.




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