In many states, environmental review laws allow private citizens to challenge actions taken by state and local governments on the basis that they have inadequately considered significant environmental impacts.1 The definition of “significant environmental impacts” under these laws is crucial because it substantially shapes their reach. Recently, in Make UC a Good Neighbor v. Regents of the University of California,2 the California Supreme Court held that potential social noise3 created by a proposed student housing project was not an environmental impact subject to review under the California Environmental Quality Act4 (CEQA).5 However, in deciding the case on grounds narrowed by legislation passed by the California state legislature,6 the court lost an opportunity to set an important precedent relevant to other states with similar statutes.
Like many states,7 California has an environmental review act: CEQA. As part of the review process, CEQA requires those proposing projects to submit an environmental impact report (EIR) for agency certification “whenever it can be fairly argued . . . that the project may have a significant environmental impact.”8 CEQA authorizes plaintiffs to challenge the certification of a project’s EIR on the basis that the certifying agency insufficiently considered significant environmental impacts.9 In 2021, the Regents of the University of California (Regents) certified an EIR created and filed by the University of California, Berkeley (UC Berkeley) for a Long Range Development Plan (LRDP) for campus growth, which included a plan for a specific student housing project.10 In October of that year, Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group (collectively, Good Neighbor) brought a CEQA challenge against the LRDP and the student housing project.11 Good Neighbor challenged the certification of the EIR on two grounds: It “fail[ed] to consider the environmental impacts [of] ‘student-generated noise’ such as ‘vocal noise from house parties and from late-night pedestrians,’”12 and it “failed to adequately consider alternative[]” locations for the project.13
“[I]n August 2022 the trial court denied [Good Neighbor’s] petition” in whole “and entered judgment in favor of . . . Regents.”14 At trial, the court was unpersuaded by Good Neighbor’s presentation of expert testimony about the potential impact of noise from new residents.15 It also ruled that the project did not need to consider alternative locations because no off-site alternatives would meet “most of the project objectives, nor [would any] avoid or substantially lessen the significant effects of the . . . project.”16
The California Court of Appeal reversed these holdings.17 The court first concluded that the EIR for the student housing project was insufficient because it had failed to consider any alternative locations or to provide a reason for such an oversight.18 Next, the court found that the noise created by future students did require an EIR analysis.19 Therefore, the court held that the project’s EIR was insufficient as it had failed to adequately address potential noise impacts.20 Regents appealed, and the California Supreme Court granted review as to both issues.21
However, before the court could hear the case, the California Legislature responded to the appellate court decision by passing Assembly Bill No. 1307 “as urgency legislation, effective immediately.”22 The Bill amended CEQA so that (1) “the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment for residential projects for purposes of CEQA”; and (2) “institutions of public higher education, in an EIR for a residential or mixed-use housing project, are not required to consider alternatives to the location of the proposed project if certain requirements are met.”23
The California Supreme Court reversed the appellate court’s decision.24 Writing for a unanimous court, Chief Justice Guerrero held that, as amended, CEQA does not require EIRs for residential housing by public institutions of higher education to consider alternative locations or the environmental impact of future resident noise.25 To begin, Chief Justice Guerrero acknowledged that Assembly Bill No. 1307 had “narrowed the scope of the issues necessary for [the c]ourt to resolve,” as Good Neighbor had conceded that the law applied directly to the case.26 “Good Neighbor further concede[d] that the new law ma[de] clear that the EIR, insofar as it evalute[d] the [student] housing project, [wa]s not required to examine ‘social noise’ or potential alternative locations . . . .”27 Nevertheless, Good Neighbor maintained that their challenges “remain[ed] viable” because the LRDP, as a whole, did not qualify as an exempted “residential project” under the new law.28
Addressing these claims, Chief Justice Guerrero concluded that the LRDP met the statutory definition of a residential project.29 Specifically, she found that the term “project” for the purposes of CEQA is broadly defined as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”30 This language came from a preexisting CEQA provision, which the court concluded should apply to the Legislature’s amendment to the Act.31 The court then considered the term “residential,” which CEQA does not define.32 In defining the term, the court looked to ordinary meaning and to legislative intent.33 In doing so, Chief Justice Guerrero concluded that “[a] broader interpretation of ‘residential projects’ — one that encompasses land use planning to the extent it concerns residential development — appears to better correspond with the Legislature’s intent.”34 Thus, she held that the LRDP fits within the scope of the legislature’s intended meaning of “residential projects.”35 Finally, Chief Justice Guerrero noted that policy considerations indicated the same.36
If not for the intervention of the state legislature,37 the California Supreme Court could have categorically dismissed Good Neighbor’s social noise complaints and held that complaints of this nature are not environmental impacts under CEQA — and it would have been right to do so. CEQA’s statutory language, the statute’s legislative history and purpose, and relevant policy considerations indicate that social noise is not a significant environmental impact. Had the court ruled as such, the decision could have also served as an important persuasive precedent for other states with similar statutes facing similar challenges.
Beginning with the statute: “CEQA requires state and local agencies to study, disclose, and mitigate the environmental effects of discretionary agency actions that may significantly affect the environment.”38 Under CEQA, “‘[e]nvironment’ means the physical conditions that exist within the area which will be affected by a proposed project, including . . . noise.”39 Noise can therefore impact the environment under CEQA. But there is good reason to think that the Act is primarily concerned with limiting industrial noise, not the social noise at issue here. Despite listing noise as a component of the environment that could be impacted, the Act itself does not provide any examples of the sorts of noise impacts that would qualify as significant impacts.40 However, the CEQA Guidelines,41 administrative regulations created to inform interpretations of CEQA, provide explicit guidance in “determining the significance of the environmental effects caused by a project.”42 The Guidelines refer to “noise . . . of heavy equipment that would result from construction” as an example of a “direct physical change[]” that could be a significant environmental noise impact.43 Elsewhere, the Act and Guidelines explicitly identify noise impacts primarily in industrial contexts, such as noise from airports,44 major transportation projects,45 and power plants.46 Regarding residential projects, the Act and Guidelines do not specifically call out noise-related impacts outside of a few exemption provisions.47 And while residential projects are nonetheless subject to general CEQA noise requirements, case law demonstrates that the type of noise-related impact that would require an EIR in the residential context is generally industrial in nature.48 Considering the Act’s focus on noise from industrial uses, social noise from residential development is not of the type generally contemplated by the Act.
Even if social noise from residential housing could be considered a significant environmental impact in certain contexts, it would be inappropriate to do so for a student housing project adjacent to a college campus and amid other residential housing projects. The Guidelines note that an environmental impact’s significance should be judged relative to its contextual “[e]conomic or social effects.”49 For example, the Guidelines state that noise from the construction and use of a road may not be a significant environmental impact in all contexts, but could be if it would “disturb[] existing religious practices in the area.”50 Thus, the court could alternatively have ruled that social noise from residential housing is not categorically exempt but would not be considered a significant environmental impact in dense urban contexts.51
California case law has historically interpreted CEQA to “afford the fullest possible protection to the environment within the reasonable scope of the statutory language,”52 leading some to dub CEQA a “super-statute” that has “a broad effect on the law — including an effect beyond the four corners of the statute.”53 However, Professor Christopher Elmendorf has argued that the decision in Good Neighbor indicates that the court is moving away from this broad interpretive approach.54 As Elmendorf argues, the court’s decision to look to legislative history in determining the meaning of “residential project” under CEQA instead of immediately interpreting the term broadly indicates such a shift.55
CEQA’s legislative history and purpose further indicate that social noise should not be considered an environmental impact. In the late 1960s, fears of environmental crises led to the creation of the National Environmental Policy Act of 196956 (NEPA).57 These concerns, together with the passage of NEPA, generated a wave of similar state-level environmental policy acts in the 1970s,58 including CEQA.59 The drafters of CEQA also included explicit findings of legislative intent within the Act itself, pointing to similar concerns.60 These findings speak primarily to large-scale environmental challenges, like “maintenance of high-quality ecological systems,”61 “management of natural resources and waste disposal,”62 and other environmental issues of “statewide concern.”63 While these findings also mention “freedom from excessive noise,”64 there is an implied distinction between day-to-day social noise that occurs in all residential housing and “excessive” noise. Such an inclusion would be out of place amid a series of broad and dramatic environmental concerns.65 Crucially, the Act’s statement of legislative intent also notes that these environmental concerns should be balanced with a goal of “providing a decent home . . . for every Californian.”66 Thus, CEQA’s findings of legislative intent further bolster the argument that social noise from residential projects is not a significant environmental impact.
Finally, policy reasons support a holding that social noise from residential housing developments should not be considered a significant environmental impact.67 California has some of the highest residential housing costs in the country,68 a problem caused in no small part by its housing shortage.69 High housing costs have increased homelessness rates,70 notably among college students in the University of California system,71 with UC Berkeley “provid[ing] student housing to the lowest percentage of students at any University of California campus in the state.”72 As such, to address these challenges, California needs to find ways to substantially increase the supply of housing in the state, particularly surrounding universities. In the context of CEQA, these concerns should urge the court to establish a high bar for finding that an environmental impact is significant enough to merit a delay of much-needed student housing. The social noise concern raised by Good Neighbor would clearly fail this test, as the likely impacts are speculative and relatively small compared to the sort of definite and significant environmental impacts otherwise contemplated by CEQA, such as hazardous waste or toxic substances.73 Thus, if it were given the opportunity, the court should have held that “social noise” from residential projects does not qualify as a significant environmental impact.
Had the California Supreme Court reached such a ruling, it could have served as a persuasive precedent for other state courts ruling on similar challenges to similar laws. Many states have environmental review laws in the same mold as NEPA and CEQA, sharing similar statutory language, legislative history, purpose, and policy considerations.74 Many of these jurisdictions are also currently grappling with lawsuits brought under these laws akin to the challenge brought here by Good Neighbor.75 Like CEQA, other state-level environmental policy acts (SEPAs) were inspired by and modeled on NEPA.76 As such, these SEPAs share a common legislative history with CEQA,77 and were animated by similar concerns over pollution and environmental catastrophes.78 Many SEPAs, including CEQA, also copied “almost verbatim” or “clearly patterned” their statement of policy after NEPA.79 SEPAs modeled after NEPA also share a common structure and statutory language: Each requires the preparation of an environmental impact statement addressing significant environmental impacts from actions subject to the Act.80 While the definition of significant environmental impact varies widely across SEPAs, CEQA is generally regarded as encompassing a broader variety of impacts.81 Finally, the policy considerations that urge the above holding in California also apply in other SEPA states with housing shortages. Thus, a conclusion from the California Supreme Court that even CEQA’s capacious language does not include social noise from residential projects would be persuasive in states with less expansive statutes.
The United States faces a serious housing shortage, leading to increased homelessness, inequality, carbon emissions, and more.82 At the same time, environmental laws are facing heavy criticism for blocking much-needed housing, green energy projects, and more.83 In Good Neighbor, the California Supreme Court was denied the opportunity to rule as to whether social noise from residential housing could be considered an environmental impact requiring an EIR under CEQA. Had the court been given the opportunity, the Act’s language, history and purpose, and relevant policy considerations would have urged a holding that such noise is not a significant environmental impact requiring an EIR. Such a ruling would have been a step forward for California law and set a precedent for the many states across the country with similar statutes facing similar challenges.