Election Section

So far the California Environmental Quality Act (CEQA) dispute between the City of Berkeley and University of California has played out with commendable respect for the involved interests. The university published its draft environmental impact report (EIR), the city and community commented on it, and the university responded as it saw fit. The city, visualizing the University’s environmental shortcomings and their economic implications, challenged UC in court—ultimately seeking a better decision through litigation or negotiation. To their credit, the two parties then engaged in negotiations to resolve the city’s concerns by consensus if possible. I praise the city for calling UC’s bluff by commencing litigation that keeps the process open, just as I praise both parties for attempting to produce a final product now and not after years in court. 

To date I also praise the confidentiality that has attended the city-UC negotiations. Successful negotiation requires the contending parties to put aside legal positions and frankly discuss their underlying needs and interests; neither the courtroom nor the public meeting process allows for this frank discussion by those ultimately accountable for final resolution. 

But now that the negotiators appear to have produced a final proposal for decision by their respective principals—the City Council and UC Regents—confidentiality has run its course. In order that the final environmental decision comply with the principles of CEQA laid down over a generation of California jurisprudence, the publics of both City Council and Regents must be given their opportunity to review and comment on a proposed litigation settlement. 

The lesson I offer is an intensely personal one. Twenty years ago, representing Inyo County in its enduring Owens Valley water wars against Los Angeles, we faced this same issue: How can long-standing adversaries voluntarily resolve to put CEQA litigation aside, and still protect the rights of the greater public to participate in that outcome? Los Angeles insisted that Inyo agree to remove one issue from further litigation; the county felt powerless to object, despite our professional reservations. The court of appeal sternly rejected the litigants’ efforts to “privatize” the ultimate resolution of the CEQA dispute, in what remains the leading judicial instruction on the rules of CEQA settlement. Condemning “a fundamental misconception about the CEQA process -- … what might be aptly described as a CEQA turkey shoot,” the court held that “all of the participants in the CEQA process must have the opportunity to participate,” and the outcome cannot be fixed unless it is “open for public discussion and agency modification during the CEQA process.” The justices evaluated the litigating parties’ insensitivity to citizen involvement as “unseemly in an area where public confidence in the openness of the process is important.” 

Honoring this mandate, the city and UC must now allow the product of their negotiations to be tested by public review before the CEQA process is allowed to conclude by a termination of the city’s CEQA litigation. Not just because the courts have said so, but more fundamentally because behind that judicial mandate lies the reality and expectation that public review of a proposed settlement can make it better for all concerned. And it is not just the City Council and its public who will benefit; the Regents also have their public that should not be kept in the dark: members of the UC Berkeley community, the other campuses, and the other UC-host communities around the state, all of whom are vitally concerned with how UC resolves the environmental issues at its flagship campus. 

The open process may not be as orderly or predicable as the negotiators predict or desire at the moment. In the Owens Valley, before Inyo County could sign a series of peace treaties with Los Angeles, months of public hearings and review followed, and the Board of Supervisors courageous enough to pursue peace had to survive a recall attempt against them. While no one anticipates such a lengthy and demanding process here at home, in the end both Inyo and Los Angeles, and the substance of their agreement, emerged stronger having faced the test of involvement by the publics of both communities. 

Can the university’s and city’s lawyers see their way to this outcome? On the west wall of Boalt Hall is inscribed the advice to the 1925 Albany Law School graduating class: “You will study the wisdom of the past, for in a wilderness of conflicting counsels, a trail has there been blazed.” Discerning that trail for today’s Boalt students, Inyo v. Los Angeles forms part of the curriculum. The city appears to have gotten the message. Let us now hope that the university’s lawyers and Regents will also live up to the lessons taught in its law school. Release the proposed settlement for public review before either governing board votes on it. 

Antonio Rossmann has litigated or settled CEQA cases for more than 30 years, and teaches water resources and land use law at UC Berkeley’s Boalt Hall. 

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