Updated: Full speed ahead, and damn the facts! CEQA in operation in Berkeley

Becky O'Malley
Monday August 29, 2016 - 04:42:00 PM

“What is a weed? A plant whose virtues have not yet been discovered.”

Ralph Waldo Emerson

.Weed: a wild plant growing where it is not wanted and in competition with cultivated plants.”


“A weed is a plant considered undesirable in a particular situation, "a plant in the wrong place".


Last weekend I had two more lessons in how powerless the California Environmental Quality Act is to inform politically-based decisionmaking. One was at the Wellstone Democratic Club's endorsement meeting and the other was the Superior Court hearing on the EIR for 2211 Harold Way. 

It was disappointing, but not surprising, to hear both candidates for Berkeley’s District Five City Council seat who spoke at the Wellstone Democratic Club meeting on Saturday endorse the ongoing plan to cut down many of the blue gum eucalyptus trees in the East Bay Hills and kill off the stumps with Roundup. Coincidentally or not, both are trained as lawyers. 

This is a controversy that has been going on for quite a while now, all over the country in many contexts. For my money, the best analysis of the politics involved, with a side of science cites, can be found in a story which ace reporter Andrew Cockburn wrote for Harpers Magazine last year: Weed Whackers: Monsanto, glyphosate, and the war on invasive species. It’s well worth reading end to end, and you can do it online for free. 

A lot of environmental decision-making is mistakenly based on the Sesame Street principle: Which one of these things is not like the other? When the eucalyptus tree has been scrutinized, a lot of the analysis comes down in the end to personal preference: love ‘em or hate ‘em: natives good, introduced bad—or maybe it’s the other way round. Unfortunately, it’s not that simple. 

We attempt, with inadequate data and cumbersome legalistic processes, to make decisions which are more properly scientific, or would be if the data existed. For a decent view of what facts we have, see Management of blue gum eucalyptus in California requires region-specific consideration in the January issue of California Agriculture

As near as I can determine, the Achilles heel of the East Bay Regional Park/FEMA scheme is the promised “restoration” plan: what will happen in the park after the trees have been chopped down and the stumps nuked with Roundup. We just don’t know enough to be sure that the lovely native grasslands which preceded the trees can be sure to come back as before, and some park users might prefer woodlands to grass, an even more difficult goal. In situations like this one, the paper’s authors suggest, eucalyptus roots may have altered the soil in which they grow with persistent chemicals which kill other plants. 

A professor of environmental studies of my acquaintance tells me that “restoration is a moving target, an evolving field”. It’s frequently a promised mitigation in an environmental impact study, but more often than not it just doesn’t happen as planned, either from unforeseen scientific impossibility or lack of funding. And sometimes it’s cynically promised by governmental bodies with no intention of enforcing compliance. In Santa Cruz there’s a “restored wetland” which was promised to mitigate a building project elsewhere that is routinely clearcut by city officials worried that criminal activity might thrive among those “weeds”. 

Another manifestation of the flaws in our environmental decision-making was on view Friday in Oakland in the court of Superior Court Judge Frank Roesch, hearing the challenge to the environmental impact report on the project for 2211 Harold Way in Berkeley, which was approved on December 8 by Berkeley’s clownish City Council. Petitioners were citizens James Hendry and Kelly Hammargren, appearing individually on their own without benefit of lawyers, a Herculean task which they executed remarkably well, all things considered. 

Next time you hear Governor Jerry Brown whining that his developer pals are suffering mightily under the heavy burden of the California Environmental Quality Act’s reporting requirements, please laugh out loud with me. Here we have a multi-million-dollar project to construct 18 stories of luxury apartments, tearing down in the process a film center which is a mainstay of the downtown Berkeley economy, tunneling under a historic building which is built on infill on a creekbed with a ceramic foundation. 

(Some of you may have seen the reports of a building in San Francisco also built on fill which has started to sink…) 

Despite CEQA, we were in the last round on Friday, and the chances of two private citizens stopping the project were slim. 

In the developer’s corner: the Manatt law firm, the great big one which has historically represented all the bigtime Democratic pols. 

Representing the public interest: a retired nurse and an economist, doing their damndest to figure out what CEQA should have done to inform the decision-makers adequately. 

Here again, it’s a matter of separating the weeds from the flowers. CEQA is supposed to do that, but it fails. 

Judge Roesch did a kind and sympathetic job of explaining to the petitioners that the merits of the project cannot be considered in an appeal like this one. All that can be done by the time it gets into court is to determine whether the council knew what they were doing when they decided to approve it, no matter how bad it is. So the judge had the unenviable responsibility of rejecting most of the petitioners’ heartfelt pleas as “political” arguments, though he read them through and heard them out courteously before delivering the bad news. 

The decision wasn’t out at the time of writing, but from my audience perspective a couple of items seemed to show some modest promise for petitioners. The judge had clearly had read the transcript of the December 8 meeting, a disgraceful rout even by the ever-lower standards of the majority of the Berkeley City Councilmembers. 

Choleric Mayor Tom Bates, whose lifetime supply of patience seems to have run out about five years ago, rammed through a last-minute draft of required findings that overriding considerations justified a decision that had bad environmental impacts. He overlooked taking a vote of councilmembers to add his draft to the council’s agenda, which their rules require. 

Jim Hendry, an economist who deals with EIRs in his day job, did a lucid job of explaining what had happened. I was there that night, and it was yet another instance of the“slam-bam-thankyou-ma’am-and-the-public-be-damned” style of governance which Bates and his allies favor. That meeting ended, as many do, in chaos. 

Most remarkably, Berkeley City Attorney Zack Cowan nonchalantly told the judge that he’d drafted significant parts of the reported findings after the meeting was over, without a request from the council to do so and without returning the language to them for final approval. 

Judges traditionally defer to even the worst decisions of elected officials, but they tend to look more harshly on bodies not following their own rules. The judge could decide to send this matter back to the council to be voted on properly, though it would be a fast fix for the council simply to re-vote. He might well decide that it’s not worth the trouble. 

The other fishy fact situation which got the judge’s attention was the economic information which the developers had presented in order to persuade the decision-makers that there was no financially feasible alternative. To grossly oversimplify the complicated facts, they’d claimed that the whole parcel, for which according to county records they’d paid $20 million, was a $40 million investment. 

The interesting part of this discussion was the new city manager’s on-the-record admission at the council meeting that the city staff had not actually reviewed this claim, so she couldn’t vouch for its accuracy, even though Hendry had challenged it in several prior meetings. The question is, what is the effect of her admission? 

Does it prove that the councilmembers were informed that they had funky data, and chose to go forward anyhow? And is that okay by CEQA? 

The saddest thing about this whole process is that though I’d been to many, many of the Berkeley hearings (the developer’s attorneys said there were 37) I’d never heard a single member of the 200+ citizens who showed up to protest given more than 5 minutes to explain their analysis of these complicated questions. And as often as not, when the matter came to the city council they were bullied by the presiding mayor, 

In Roesch’s court, they finally had a bit of an opportunity to be interrogated by an intelligent and fair-minded person, to speak at a reasonable length so they could make their points without being shouted down, but it was probably too late. The problem with CEQA is that most of the time it’s used to rubberstamp governmental indifference to facts which have been provided but are ignored. The Berkeley City Council’s performance on December 8 was no exception. There’s not much the courts can do about that. 

There is an election in November. A better city council might be the only way to prevent future travesties like this one.