Filed 4/27/23 Save Berkeley’s Neighborhoods v. Regents of the U. of Cal. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SAVE BERKELEY’S

NEIGHBORHOODS,

Plaintiff and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA et 

al.,

Defendants and Appellants. 

 A163810

 (Alameda County

Super. Ct. No. RG19022887)

Save Berkeley’s Neighborhoods (SBN) filed a petition for writ of 

mandate pursuant to the California Environmental Quality Act (Pub. 

Resources Code,1 § 21000 et seq.; CEQA) challenging (1) the Regents of the 

University of California’s (Regents) adoption of a project to develop new 

academic, residential, and parking buildings on University of California,

Berkeley’s (UC Berkeley) campus, and (2) the Regents’ certification of the 

related final supplemental environmental impact report (SEIR). The trial 

court granted the petition, finding in relevant part that certain aspects of the 

SEIR’s analysis of increased student enrollment at UC Berkeley did not 

1 All undesignated statutory references are to the Public Resources 

Code unless otherwise noted.
2

comply with CEQA. The court ordered the Regents to decertify and revise 

the SEIR and suspend any further increases to student enrollment.

On appeal, the Regents assert the judgment suspending student 

enrollment exceeds the court’s jurisdiction and runs afoul of Senate Bill 

No. 118 (Reg. Sess. 2021–2022) (Senate Bill 118), and the SEIR complies with 

CEQA. In supplemental briefing, the Regents further assert SBN’s challenge 

to the SEIR’s analysis of student enrollment increases is moot due to the 

Regents’ subsequent certification of a new long-range development plan (2021 

LRDP) and related environmental impact report (2021 EIR).

SBN filed a cross-appeal, asserting the trial court erred in finding 

(1) the SEIR’s project description complied with CEQA, (2) the SEIR’s 

mitigation for significant impacts on historic resources was appropriate, and 

(3) the SEIR adequately analyzed aesthetic impacts from increased 

enrollment. SBN further claims the trial court erred in denying its claims for 

equitable and promissory estoppel.

We conclude certification of the 2021 EIR and passage of Senate 

Bill 118 moots SBN’s challenge to the student enrollment increases and 

makes unenforceable the trial court’s orders suspending student enrollment 

increases. We also affirm the trial court’s conclusion that the SEIR’s project 

description complies with CEQA and find no error in the SEIR’s discussion of 

mitigation measures for historic resources.2 Because there are no 

2 On March 8, 2022, the Regents requested this court take judicial 

notice of (1) its approval of its 2021 LRDP and 2021 EIR, and (2) a document 

entitled, “California Environmental Quality Act Findings of Fact Regarding 

The Final Environmental Impact Report for the UC Berkeley 2021 Long 

Range Development Plan.” On August 8, 2022, the Regents requested this 

court take judicial notice of an order and judgment denying petitions for writ 

of mandate in Berkeley Citizens for a Better Plan v. Regents of University of 

California (Super. Ct. Alameda County, No. 21CV000995). SBN opposed

both requests as irrelevant to the issues in this appeal. On September 16, 
3

outstanding issues regarding the SEIR’s compliance with CEQA, we vacate 

the trial court’s order and remand the matter for the court to enter an order 

dismissing SBN’s petition.

I. BACKGROUND

A. Factual Background

In 2005, the Regents prepared and adopted a long-range development 

plan (LRDP) to provide “a framework for land use and capital investment to 

meet the academic goals and objectives of [UC Berkeley] through the year 

2020.” In connection with the LRDP, the Regents prepared an EIR regarding 

the programmatic effects of the LRDP (2005 EIR). The 2005 EIR noted the 

LRDP did not commit UC Berkeley to any specific project, but “represents a 

maximum amount of net new growth in the UC Berkeley space inventory 

through 2020–2021, which the University could substantially exceed only by 

2022, amici curiae City of Goleta and City of Santa Cruz filed a request, 

which was opposed by the Regents, that this court take judicial notice of a 

petition and complaint in two other matters and a report from the Santa 

Cruz Fire Department. We deny these three requests for judicial notice 

because these documents are “not relevant to disposition of this appeal.” 

(Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 221, fn. 13.) On December 1, 

2022, the parties filed a joint motion and request for judicial notice of the 

draft 2021 EIR and the final 2021 EIR. We grant this request. The Regents 

also separately requested this court take judicial notice of six petitions 

challenging its adoption and certification of the 2021 LRDP and 2021 EIR.

On December 16, 2022, SBN opposed the Regent’s request and filed its own 

motion, requesting this court take judicial notice of a comment letter 

submitted by the Southside Neighborhood Consortium to the draft 2021 

LRDP and 2021 EIR. We also deny these two requests for judicial notice 

because these documents are “not relevant to disposition of this appeal.” 

(Ibid.)

On September 2, 2022, SBN requested leave to file a sur-reply brief. In 

light of the new arguments raised by the Regents in their reply brief due to 

the Legislature’s adoption of Senate Bill 118, we grant SBN’s request and 

have considered the arguments raised in SBN’s sur-reply.
4

amending the LRDP.” As part of that analysis, and as relevant to this 

appeal, the 2005 EIR projected UC Berkeley’s campus population would 

levelized at 51,250 by 2020. 

In 2018, the Regents approved a new development for additional 

academic space and campus housing, and certified the SEIR. The project 

sought to demolish an existing parking structure and construct apartment 

housing above a new parking structure and a new academic building adjacent 

to the new residential building (Upper Hearst Development project). The 

SEIR also “establishe[d] an updated population baseline to reflect the 

existing campus headcount (which is greater than the projections in the [2005 

EIR]),” and evaluated the environmental impacts of this updated population 

baseline in connection with both the 2005 EIR and the SEIR. 

B. Save Berkeley I

In 2018, SBN filed a petition for writ of mandate and a complaint for 

declaratory relief challenging the Regents’ decisions to increase enrollment

beyond the level set forth in the 2005 EIR without further CEQA review. 

(Save Berkeley’s Neighborhoods v. Regents of University of California (2020) 

51 Cal.App.5th 226, 233 (Save Berkeley I).) That petition alleged, “When [the 

Regents] prepared the 2005 EIR for the development plan, the projected 

increase of 1,650 students was part of the ‘project description,’ as that term is 

used in CEQA. (See [Cal. Code Regs., tit. 14], § 15124.) [The Regents] then 

changed the project when they approved enrollment increases beyond this 

amount. These enrollment increases caused, and continue to cause, 

significant environmental impacts that were not analyzed in the 2005 EIR, 

including increased use of off-campus housing by U.C. Berkeley students 

(leading to increases in off-campus noise and trash), displacement of tenants 

and a consequent increase in homelessness, more traffic, and increased 
5

burdens on the City of Berkeley’s public safety services (police, fire, and 

ambulance).” (Save Berkeley I, at p. 233, fn. omitted.) SBN alleged CEQA 

required the Regents “to prepare an EIR to analyze these impacts and to 

identify and adopt mitigation measures to reduce them.” (Save Berkeley I, at 

p. 233.)

The Regents filed a demurrer, “contending [SBN] cannot state a cause 

of action for violation of CEQA because, under section 21080.09, the 

enrollment increases are not a CEQA ‘project’ or a project change requiring 

subsequent environmental review. [The Regents] also argued [SBN’s] claims 

were barred by the applicable statute of limitations or moot. In support of 

the latter argument, [the Regents] asked the trial court to judicially notice 

their issuance of a ‘Notice of Preparation of a Draft Supplemental [EIR]’ for a 

project entitled ‘Upper Hearst Development for the Goldman School of Public 

Policy and Minor Amendment to the 2020 Long Range Development Plan,’

which is dated August 15, 2018. [The Regents] contended the [SEIR] would 

analyze not only a new physical development but also the increase in current 

and foreseeable campus population levels.” (Save Berkeley I, supra, 

51 Cal.App.5th at pp. 233–234.)

“The trial court sustained the demurrer without leave to amend, 

concluding [SBN’s] petition was barred by the statute of limitations ‘[t]o the 

extent [it] challenges the adequacy of the 2005 EIR’ and that ‘ “informal, 

discretionary decisions” to increase student enrollment beyond that 

anticipated in the [development plan]’ did not constitute ‘project changes’

necessitating CEQA review.” (Save Berkeley I, supra, 51 Cal.App.5th at 

p. 234.)

Our colleagues in Division Five of this court reversed. The court noted 

SBN alleged in its petition that the Regents “made several discretionary 
6

decisions to change the project by increasing enrollment beyond 1,650 

students,” these increases “have caused, and continue to cause, significant 

environmental impacts that were not analyzed in the 2005 EIR,” and the 

Regents “failed to analyze the new impacts in a CEQA document” or “adopt 

mitigation measures to reduce or avoid them.” (Save Berkeley I, supra, 

51 Cal.App.5th at p. 237.) The court concluded these allegations adequately 

supported SBN’s claim that the Regents “made substantial changes to the 

original project that trigger the need for a subsequent or supplemental EIR.” 

(Ibid.) 

The court also rejected the Regents’ argument that section 21080.09 

effectively exempted them from analyzing the changed increases in 

enrollment unless or until a physical development project is approved. (Save 

Berkeley I, supra, 51 Cal.App.5th at p. 237.) It concluded, “When a public 

university prepares an EIR for a development plan, section 21080.09 requires 

universities to expand the analysis to include a related feature of campus 

growth, future enrollment projections, which is entirely consistent with the 

traditional, broad definition of a CEQA project.” (Id. at p. 239.) The court 

further noted “a public university’s decision to increase enrollment levels can 

be a ‘project’ subject to CEQA whether or not it is related to a development 

plan.” (Id. at p. 240.) On remand, the trial court stayed the matter pending 

resolution of this appeal. 

C. The Current Petition

On June 13, 2019, SBN filed a petition for writ of mandate challenging 

the Upper Hearst Development project and seeking to vacate the Regents’ 

certification of the SEIR on the grounds that the approval violated CEQA. 

The petition identified various alleged omissions from the SEIR and asserted 

the Regents (1) “[f]ailed and refused to recirculate a revised draft 
7

supplemental EIR including said necessary information,” (2) failed to prepare 

and certify “a subsequent, rather than supplemental EIR,” and (3) failed to 

make certain required findings or support findings with substantial evidence.

The petition named the Regents, Janet Napolitano, and Carol T. Christ as 

respondents in the action.3 The petition requested in relevant part that the 

court void approval of the project and order the respondents to take any other 

necessary acts to comply with CEQA. 

Following briefing on the merits but in advance of the hearing, the 

court requested the parties address nine issues. The majority of the 

questions involved the increased student enrollment and whether that issue 

was properly analyzed in the SEIR. 

In responding to these questions, the Regents commented: “The project 

analyzing the SEIR was the Upper H[ea]rst Development, which included a 

projection of enrollment increases to 2022 when the project would open. And 

these additional students were not part of any project approval. If you look 

at the Regents[’] approval, they approved the GSPP [(Upper Hearst 

Development)] project. They did not approve additional enrollment. . . . [¶] 

. . . The future increases were part of the project analysis, cumulative 

analysis in the SEIR. But again, they’re not part of any project approval.” 

While the Regents argued student enrollment increases were not part 

of the “project,” it acknowledged the analysis of increased enrollment was 

part of the SEIR and subject to judicial review. Specifically, the Regents 

3 SBN filed an amended petition for writ of mandate, which was 

substantively identical to the initial petition except it added American 

Campus Communities and Collegiate Housing Foundation as real parties in 

interest. This court affirmed the order dismissing those parties in Save 

Berkeley’s Neighborhoods v. Regents of University of California (2021)

70 Cal.App.5th 705.
8

stated: “[The court] will decide whether the [Regents] goes to [sic] analyzing 

the environmental impacts of the 7,500 additional students above and beyond 

the 2020 LRDP projections compliant with CEQA. That’s an issue, obviously, 

in these cases. It’s part of this challenge, and I think I’ve consistently told 

[the court] that, even though our approach to how we handle that is unusual, 

but, obviously, it is subject to the court’s review and determination. [¶] . . . A 

judicial determination on this issue in these cases will moot the [Save

Berkeley I] case. I believe that’s the relief that’s been requested in [Save

Berkeley I] was environmental review of the increased enrollment from 2005 

to 2017. And that’s what the court will be ruling upon in these cases.” 

The Regents also represented its assessment of student enrollment 

increases went beyond merely providing a baseline for the Upper Hearst 

Development project: “As to your second question . . . , did the Regents study 

the environmental impacts of the increases in the SEIR? The answer is yes. 

But to the rest of that question or were these increases simply used as a 

baseline? The answer is no. And again, this is an unusual case. As we’ve 

explained to the court before, the [Regents] analyzed the potential 

environmental impacts of the additional students in connection with 

preparation of an updated baseline in this SEIR. [¶] As we say in our briefs 

. . . , normally the baseline or the conditions on the ground—existing 

conditions when the NOP[4]is published. In this case, August of 2018. 

However, as I’ve also said, there’s 7,500 additional students present or 

enrolled at the UC Berkeley campus at the time the NOP was published. 

They had already been enrolled. They were there and there was no 

discretionary approval involved with those 7,500 students at that time. [¶]

Now, technically, under section 105125, the [Regents] would have said, 

4 “NOP” is an acronym for “notice of preparation.” 
9

they’re there. They’re part of the baseline. Let’s go on. Let’s look at the 

impacts of the [Upper Hearst Development project], but it didn’t do that. And 

I believe that, again, although unusual, if there’s nothing illegal or nothing 

under the [Regent’s] approach that violates CEQA and in fact, it better serves 

the purposes of CEQA by being an information disclosing document that 

talked about the impacts of those students . . . as well as the project that was 

under review.” 

The trial court subsequently granted the writ of mandate. The court 

noted the Regents’ “ ‘updated baseline’ analysis does not fit well within a 

traditional CEQA framework.” It criticized the SEIR for “attempt[ing] to 

analyze an increase in student enrollment without admitting that increasing 

student enrollment is a project subject to review.” However, it concluded 

SBN’s challenge to past enrollment increase was properly subject to judicial 

review based on the statements made by the Regents’ counsel at the hearing. 

In addressing the adequacy of the SEIR’s analysis, the court found the 

SEIR insufficiently analyzed the impacts on housing, public services, and 

noise, and failed to consider possible alternatives. Specifically, as to housing 

and population, the court noted “the SEIR dismisses the displacement and 

indirect population impacts of the ‘update’ portion of the updated baseline as 

outside the scope of its study” and asserted “concerns about student and 

induced nonstudent homelessness” involved “speculation” that “is beyond [the 

SEIR’s] scope.” The court concluded “[i]ncreases in campus population 

foreseeably lead to direct and indirect impacts on housing, population, and 

displacement, and the failure to consider those impacts constitutes a 

prejudicial abuse of discretion.” The court also determined the SEIR’s 

conclusion “that no new displacement impacts would result from the 
10

construction of new University housing” “fails to consider indirect 

displacement impacts.” 

As to impacts on the demand for public services, the court stated the 

Regents dismissed staffing and equipment purchases as “ ‘fiscal matters’ ” 

rather than environmental impacts. The court also noted the Regents did not 

believe new or physically altered fire protection facilities would be required 

due to the increased headcount. The court took issue with this approach, 

noting the City of Berkeley submitted evidence of physical impacts due to 

increased service calls and a corresponding need for additional personnel and 

new facilities. The court concluded “no substantial contradictory evidence” 

indicated the increased demand was not connected to the increased 

headcount, and the SEIR’s failure to discuss this issue was an abuse of 

discretion. 

The court next addressed the parties’ arguments regarding noise and 

aesthetic impacts. On these issues the SEIR concluded there was no 

significant impact because neighborhoods around UC Berkeley already 

accommodated a high proportion of off-campus student rentals. The court 

explained this analysis constituted an abuse of discretion because it 

“compares . . . its current student enrollment numbers to the present, postincrease status quo” rather than “to a baseline before the increase.” The 

court noted nothing supported the SEIR’s conclusion that increased 

headcount would not exacerbate noise issues, and rejected the SEIR’s 

conclusion that Berkeley’s noise ordinance was an adequate remedy. 

However, the court found the Regents could reasonably conclude that once-ayear, moving-day trash did not constitute a “ ‘substantial’ effect on the 

environment.”
11

Finally, the court determined it “cannot endorse [the Regents’] 

conclusion that the lack of analysis of a reduced enrollment alternative is 

legally permissible” because “the environmental analysis was flawed.”

Apart from the student enrollment increases, SBN also argued the 

Regents failed to properly consider (1) the historical context of the new 

buildings comprising the Upper Hearst Development project, and (2) noise 

and traffic impacts. As to the historical impacts, the SEIR considered 

buildings on or immediately adjacent to the Upper Hearst Development 

project site, and concluded the project would negatively impact three 

historical buildings. The SEIR proposed as a mitigation measure retaining a 

historical architect to review plans for the proposed buildings and “ ‘provide 

input and refinements to the design team . . . to improve compatibility with 

neighboring historical resources.’ ” SBN claimed the Regents failed to 

consider surrounding historical resources and disputed the validity of the 

proposed mitigation measure. The trial court rejected SBN’s arguments. It 

first concluded the Regents did not abuse its discretion in limiting its review 

of historical resources to those on or adjacent to the building site. The trial 

court found the Regents did not abuse its discretion in adopting the proposed 

mitigation measure because it required the Regents to take certain steps, 

including adopting the United States Secretary of the Interior’s Standards for 

the Rehabilitation and Guidelines for Rehabilitating Historic Buildings 

(Secretary of the Interior’s Standards). (See Cal. Code Regs., tit. 14,

§ 15064.5, subd. (b)(3).)

The court also found the Regents did not fail to adequately analyze 

noise and traffic impacts. The court concluded substantial evidence 

supported the SEIR’s conclusion that a decrease in parking would correlate

with reduced trip generation. The court also rejected SBN’s arguments that 
12

the SEIR failed to consider traffic impacts from construction of the Upper 

Hearst Development project and noise impacts from construction and 

subsequent use of the Upper Hearst Development project. 

The trial court entered judgment and ordered the Regents, in relevant 

part, “to void any decision or decisions they may have made prior to entry of 

this Judgment to increase student enrollment in academic year 2022–2023 or 

later above the level of student enrollment at UC Berkeley in academic year 

2020–2021,” “to void their decision to carry out the Upper Hearst 

Development [project],” and “to decertify the [SEIR].” The judgment also 

ordered the Regents (1) “to suspend any further increases in student 

enrollment at UC Berkeley . . . until [the Regents] have demonstrated full 

compliance with this Judgment and Writ and the Court orders discharge of 

the Writ”; and (2) revise the SEIR to remedy the deficiencies identified in the 

judgment and certify the revised SEIR. 

D. The Appeal and Writ Proceedings Before This Court

In October 2021, the Regents timely appealed from the order granting 

the writ petition. SBN also filed a notice of cross-appeal. Approximately 

three months later, and after the parties had proposed and the court 

established a briefing schedule, the Regents filed a petition for writ of 

supersedeas with this court. It argued the trial court’s order limiting 

enrollment exceeded its authority and could “have serious, immediate, and 

irreparable consequences.” The Regents asserted an immediate stay was 

required “to ensure that thousands of matriculating high school seniors 

deserving of admission to UC Berkeley are not denied that admission during 

the pendency of the appeal.” 

This court denied the request for temporary stay and the petition for 

writ of supersedeas. We concluded “it appears far more probable that the 
13

fruits of the judgment will be lost if a stay is issued than that the fruits of 

reversal will be lost if it does not.” Moreover, this court noted the Regents 

failed to demonstrate irreparable harm in light of its multi-month delay in 

seeking a stay or supersedeas, and its failure to offer any explanation for 

such delay. The Regents’ petition for review and application for stay to the 

California Supreme Court were subsequently denied. The parties then 

proceeded with this pending appeal.

II. DISCUSSION

A. Standard of Review

“ ‘[I]n a mandate proceeding to review an agency’s decision for 

compliance with CEQA, we review the administrative record de novo 

[citation], focusing on the adequacy and completeness of the EIR and whether 

it reflects a good faith effort at full disclosure. [Citation.] Our role is to 

determine whether the challenged EIR is sufficient as an information 

document, not whether its ultimate conclusions are correct. [Citation.]’ An 

EIR is presumed adequate. (§ 21167.3, subd. (a).)” (County of San Diego v. 

Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 96

(County of San Diego).)

“We review an agency’s action under CEQA for a prejudicial abuse of 

discretion. (§ 21168.5.) ‘Abuse of discretion is established if the agency has 

not proceeded in a manner required by law or if the determination or decision 

is not supported by substantial evidence.’ ” (County of San Diego, supra, 

141 Cal.App.4th at p. 96.)

“In defining the term ‘substantial evidence,’ the CEQA Guidelines[5]

state: ‘ “Substantial evidence” . . . means enough relevant information and 

5 The CEQA Guidelines are found at California Code of Regulations, 

title 14, section 15000 et seq.
14

reasonable inferences from this information that a fair argument can be 

made to support a conclusion, even though other conclusions might also be 

reached. Whether a fair argument can be made . . . is to be determined by 

examining the whole record before the lead agency. Argument, speculation, 

unsubstantiated opinion[,] narrative [or] evidence which is clearly erroneous 

or inaccurate . . . does not constitute substantial evidence.’ ([Cal. Code Regs., 

tit. 14], § 15384, subd. (a).) ‘In applying the substantial evidence standard, 

we resolve all reasonable doubts in favor of the administrative finding and 

decision.’ ” (County of San Diego, supra, 141 Cal.App.4th at p. 96.)

Although an agency’s “factual determinations are subject to the 

foregoing deferential rules of review, ‘questions of interpretation or 

application of the requirements of CEQA are matters of law. [Citations.] 

While we may not substitute our judgment for that of the decision makers, 

we must ensure strict compliance with the procedures and mandates of the 

statute.’ ” (County of San Diego, supra, 141 Cal.App.4th at p. 96.)

B. Judicial Review of the SEIR’s Analysis of Student Enrollment 

Increases

As a threshold issue, the parties disagree as to whether the trial court 

was entitled to evaluate the Regents’ analysis of the student enrollment 

increases under CEQA. The Regents argue its discussion of student 

enrollment increases was merely in connection with establishing a baseline 

from which to evaluate the potential environmental impacts of the Upper 

Hearst Development project. Conversely, SBN argues the Regents stated it 

conducted a CEQA analysis of the enrollment increases that was subject to 

judicial review in this proceeding, and the Regents thus waived any 

argument to the contrary by stipulation, judicial admission, or waiver. 

As an initial matter, we agree the Regents were not required to conduct 

a CEQA analysis of the student enrollment increases as part of its analysis of 
15

the Upper Hearst Development project. CEQA requires that a project’s 

environmental impacts be assessed against “the existing ‘baseline physical 

conditions.’ ” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1167; see also 

Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 

549, 559 [“the ‘normal’ rule is that the baseline must reflect the ‘physical 

conditions existing at the time [the] environmental analysis’ begins”].) And 

increased enrollment was indisputably already part of the existing 

environmental conditions at the time the Regents began its environmental 

review for the Upper Hearst Development project. Numerous courts have 

concluded that a baseline should reflect existing conditions, even if doing so 

precludes full environmental review of past actions. (See, e.g., Citizens for 

East Shore Parks v. State Lands Com., at p. 561; Riverwatch v. County of San 

Diego (1999) 76 Cal.App.4th 1428, 1452–1453 [respondents could not turn 

back the clock and insist upon a baseline that excluded existing conditions]; 

Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1280–1281 [county 

acted within its discretion in considering current airport operations for 

baseline despite past airport development conducted without proper 

authorization].) 

Likewise, we note increased student enrollment would not necessarily 

have triggered CEQA review due to Senate Bill 118. As discussed in greater 

detail in part II.C.2., post, Senate Bill 118 amended section 21080.09, 

subdivision (d) to state, “Enrollment or changes in enrollment, by themselves, 

do not constitute a project.”

SBN asserts the Regents cannot now raise these arguments because 

they have been waived by either stipulation or judicial admission. “A judicial 

admission is a party’s unequivocal concession of the truth of a matter, and 

removes the matter as an issue in the case.” (Gelfo v. Lockheed Martin Corp. 
16

(2006) 140 Cal.App.4th 34, 48.) The doctrine of judicial admissions is similar 

to the doctrine of judicial estoppel. The purpose of these doctrines is to 

protect the integrity of the judicial process. (Jogani v. Jogani (2006) 

141 Cal.App.4th 158, 169.) They are “ ‘ “aimed at preventing fraud on the 

courts [and]” . . . “ ‘ “[are] invoked to prevent a party from changing its

position over the course of judicial proceedings when such positional changes 

have an adverse impact on the judicial process . . . . ‘The policies underlying 

preclusion of inconsistent positions are “general consideration[s] of the 

orderly administration of justice and regard for the dignity of judicial 

proceedings.” ’ . . . ‘It seems patently wrong to allow a person to abuse the 

judicial process by first [advocating] one position, and later, if it becomes 

beneficial, to assert the opposite.’ ” ’ ” (Id. at pp. 169–170.)

As noted in the factual background, prior to the merits hearing the trial 

court asked the parties to address specific questions regarding whether the 

student enrollment increases were part of the SEIR rather than just the 

baseline and whether the impact of such increases were subject to judicial 

review. As to those issues, the Regents acknowledged the court would 

evaluate whether its analysis of “the environmental impacts of the 7,500 

additional students above and beyond the 2020 LRDP projections [is] 

compliant with CEQA.” The Regents further recognized it was “an issue . . . 

in these cases,” “part of this challenge,” and “obviously . . . is subject to the 

court’s review and determination.” The Regents further asserted: “A judicial 

determination on this issue in these cases will moot the [Save Berkeley I]

case. I believe that[ ] the relief that’s been requested in [Save Berkeley I] was 

environmental review of the increased enrollment from 2005 to 2017. And 

that’s what the court will be ruling upon in these cases.” 
17

The Regents also—in contrast to its arguments raised on appeal—

stated its analysis of the environmental impacts of the student enrollment

increases in the SEIR were not simply used as a baseline. The Regents 

explained its approach to the trial court as follows: “[T]he [Regents] analyzed 

the potential environmental impacts of the additional students in connection 

with preparation of an updated baseline in this SEIR. [¶] As we say in our 

briefs, . . . normally the baseline or the conditions on the ground—existing 

conditions when the NOP is published. In this case, August of 2018. 

However, as I’ve also said, there’s [sic] 7,500 additional students present or 

enrolled at the UC Berkeley campus at the time the NOP was published. 

They had already been enrolled. They were there and there was no

discretionary approval involved with those 7,500 students at that time. [¶]

Now, technically, under section 105125, the [Regents] would have said, 

they’re there. They’re part of the baseline. Let’s go on. Let’s look at the 

impacts of the [Upper Hearst Development project], but it didn’t do that. And 

I believe that, again, although unusual, if there’s nothing illegal or nothing 

under the [Regents’] approach that violates CEQA and in fact, it better serves 

the purposes of CEQA by being an information disclosing document that 

talked about the impacts of those students . . . as well as the project that was 

under review.”6 (Italics added.) The trial court then relied on these 

6 Without opining on the merits of such an argument as it was not 

raised by SBN, we note section 21166 imposes an “obligation to conduct 

supplemental review . . . regardless of whether the project under 

consideration has undergone previous project-specific environmental review, 

or is being carried out under a plan for which the agency has previously 

certified a program EIR.” (Citizens for a Sustainable Treasure Island v. City 

and County of San Francisco (2014) 227 Cal.App.4th 1036, 1051.) Such 

supplemental review is triggered in part when “[s]ubstantial changes occur 

with respect to the circumstances under which the project is being 

undertaken which will require major revisions in the environmental impact 
18

representations in stating, “At the hearing on the petition, . . . the parties 

stipulated that the SEIR’s analysis of the impacts of the increase in 

enrollment was subject to judicial review in this proceeding without resolving 

the issue of whether the increases to student enrollment that led to the 

Excess Population were a part of the project studied in the SEIR.” The trial 

court thus concluded it “d[id] not need to determine whether that past 

increase was part of the project under study here.” 

Accordingly, the record indicates the Regents acknowledged the 

increased enrollment was subject to judicial review, was part of the pending 

challenge, and would be addressed by the trial court.7 The Regents cannot 

report.” (§ 21166, subd. (b).) We note the draft SEIR stated: “UC Berkeley 

made a commitment to the City of Berkeley that, if enrollment increased 

beyond the projections set forth in the 2020 LRDP, it would undertake 

additional review under CEQA. [¶] Consistent with this commitment, the 

SEIR uses an updated population baseline and, in its environmental analysis 

of each impact category, takes this updated baseline into account and 

explains how it factors into and/or affects the environmental analysis and 

significant conclusions reached in the 2020 LRDP EIR and this SEIR.” 

(Italics added.) The final 2021 EIR also stated the SEIR addressed “the 

‘significant environmental impacts of unanticipated enrollment growth that 

has already occurred at UC Berkeley.’ ” Likewise, the Regents argued to 

Division Five of this court in its prior appeal, Save Berkeley I, that the appeal 

was moot because “[t]here is no effective relief that can be granted . . . . The

[SEIR] did exactly what [SBN] asks for and conducted supplemental CEQA 

review of amendments to the LRDP, which included an analysis of the 

impacts of increased enrollment.” 

7 On appeal, the Regents contend these concessions do not constitute a 

waiver or judicial admission because they only acknowledged the analysis of 

increased enrollment was subject to judicial review and not that it was part 

of the Upper Hearst Development project. What the Regents omit, however, 

is what type of judicial review is appropriate in light of their simultaneous 

argument that the trial court’s CEQA review was erroneous.
19

now argue otherwise. The trial court thus did not err in assessing the 

adequacy of the Regents’ CEQA analysis of increased enrollment.8

C. Validity of the Enrollment Increase Analysis Under CEQA

The Regents next challenge the trial court’s finding that the student 

enrollment analysis failed to comply with CEQA. Specifically, the Regents 

argue (1) SBN’s challenge to the student enrollment increase is moot due to 

certification of the 2021 EIR, (2) the remedies imposed by the trial court 

violate Senate Bill 118, and (3) the student enrollment analysis satisfied the 

requirements of CEQA. 

1. Mootness

In supplemental briefing, the Regents argue SBN’s challenge to the 

SEIR’s analysis of student enrollment increases is moot considering the

subsequently certified 2021 EIR. In response, SBN asserts the 2021 EIR 

does not supplant the analysis of increased campus population in the SEIR.

a. Additional Relevant Background

In 2021, the Regents issued a draft environmental impact report (2021 

draft EIR) that, in relevant part, “would replace UC Berkeley’s existing 

LRDP, which was evaluated in the certified EIR for a horizon year of 2020.” 

(Fn. omitted.) The 2021 draft EIR utilized a “buildout horizon year of the 

2036–37 academic year . . . to provide a basis for evaluating associated 

environmental impacts in this EIR.” While “[t]he proposed LRDP Update 

8 SBN also argues the trial court erred in denying its alternative claims 

for equitable and promissory estoppel regarding the increased enrollment 

analysis being part of the SEIR and subject to judicial review in this action. 

However, it notes, “If this Court affirms the trial court’s order that the legal 

sufficiency of the SEIR’s environmental evaluation of the Updated Campus 

Headcount is subject to judicial review in this action, . . . [SBN’s] equitable 

and promissory estoppel claims would be moot.” Accordingly, we find these 

claims moot.
20

does not determine future UC Berkeley enrollment or population, or set a 

future population limit for UC Berkeley,” the proposed LRDP update would 

“establish a maximum amount of net new growth in UC Berkeley’s space 

inventory during this time frame, which the UC Berkeley campus may not 

substantially exceed without amending the LRDP and conducting additional 

environmental review as necessary.” 

The 2021 draft EIR evaluated the potential environmental impact of 

the LRDP update on the areas of aesthetics, air quality, biological resources, 

cultural resources, energy, geology and soils, greenhouse gas emissions, 

hazards and hazardous materials, noise, population and housing, public 

services, parks and recreation, transportation, tribal cultural resources, 

utilities and service systems, and wildfire. In assessing the population 

increase at UC Berkeley, the 2021 draft EIR utilized the existing conditions 

as of 2018 as its baseline for assessing environmental impact. 

In July 2021, the Regents issued the final EIR for the approval and 

implementation of the proposed 2021 LRDP. In response to public comments, 

the 2021 EIR included “Master Response 17,” entitled “2005 LRDP EIR 

Population Projections.” The response sought to address requests by the City 

of Berkeley and others “that the EIR account for the ‘significant 

environmental impacts of unanticipated enrollment growth that has already 

occurred at UC Berkeley as well as impacts of additional future population 

growth proposed.’ ” Accordingly, the “response provides an evaluation of the 

program-level environmental impacts of the LRDP Update to address UC 

Berkeley population growth between 2007 (when the 2005 LRDP EIR student 

and total UC Berkeley population projections were first exceeded) and the 

2018–19 baseline population” used in the 2021 EIR. In doing so, the response 

“analyzes the effects of population growth using as a baseline the population 
21

level projected in the 2005 LRDP EIR, rather than the UC Berkeley 

population in the 2018–19 school year.” This analysis focused on seven 

categories: air quality, greenhouse gas emissions, noise, population and 

housing, public services, parks and recreation, and transportation.9

With regard to noise, the 2021 EIR focused exclusively on traffic noise 

as a result of the project. The 2021 EIR noted roadway volume, and the 

corresponding noise level, decreased between 2007 and 2018. As a result, it 

concluded the potential impact of increased traffic noise for the 2021 LRDP 

using the 2018 baseline would reflect a greater environmental impact than if 

analyzed using the 2007 baseline. 

In connection with population and housing, the 2021 EIR acknowledged 

using the 2007 baseline would increase the population seeking off-campus 

housing, and “the local direct and increased population growth projected 

under the LRDP Update . . . would be a significant impact.” The response 

further noted, however, the impact “would be less than significant with the 

implementation of Mitigation Measure POP-1.”10 It concluded “[t]he 

increased population evaluated in this master response would not create any 

additional impacts not evaluated in the [2021] Draft EIR.” 

As to public services, the response first noted, “since 2007 [the 

University of California Police Department] has not physically expanded its 

9 Because the trial court found the SEIR deficient as to housing, public 

services, and noise, we only address the 2021 EIR’s discussion of those 

categories rather than all seven categories.

10 “Mitigation Measure POP-1” states: “UC Berkeley would provide an 

annual summary of LRDP enrollment and housing production data, including 

its LRDP enrollment projections and housing production projections, to the 

City of Berkeley and [the Association of Bay Area Governments] for 

projection purposes, ensuring that local and regional projections are prepared 

with knowledge of UC Berkeley enrollment and housing projections.” 
22

facilities” and “according to City of Berkeley fiscal reports between 2008 and 

2019, the [Berkeley Police Department] did not expand its physical facilities 

as a result of the increased UC Berkeley population during this time period.” 

The response thus concludes, “Because the exceeded population that occurred 

in 2007 did not result in new or physically altered police facilities that would 

have potentially resulted in environmental impacts, this population did not 

impact police services beyond what was addressed in the [2021] Draft EIR.” 

Second, the response reached a similar conclusion as to fire protection 

services. It noted the increased population did not result in impacts to the 

Berkeley Fire Department because it “did not expand its physical facilities as 

a result of the increased UC Berkeley population [between 2008 and 2019].” 

b. Analysis

“ ‘Because “ ‘the duty of . . . every . . . judicial tribunal . . . is to decide 

actual controversies by a judgment which can be carried into effect, and not 

to give opinions upon moot questions or . . . to declare principles or rules of 

law which cannot affect the matter in issue in the case before it[,] [i]t 

necessarily follows that when . . . an event occurs which renders it impossible 

for [the] court, if it should decide the case in favor of plaintiff, to grant him 

any effectual relief whatever, the court will not proceed to a formal judgment 

. . . .’ [Citations.]” [Citation.] The pivotal question in determining if a case is 

moot is therefore whether the court can grant the plaintiff any effectual 

relief. [Citations.] If events have made such relief impracticable, the 

controversy has become “overripe” and is therefore moot. [Citations.] [¶] . . . 

When events render a case moot, the court, whether trial or appellate, should 

generally dismiss it.’ ” (Parkford Owners for a Better Community v. County of 

Placer (2020) 54 Cal.App.5th 714, 722; see also Golden Gate Land Holdings 

LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 366 [“ ‘[A] 
23

case becomes moot when a court ruling can have no practical effect or cannot 

provide the parties with effective relief.’ ”].) “General principles for 

determining whether an appeal is moot have been applied to CEQA cases.” 

(Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 

1547–1548.) However, courts have held the subsequent preparation and 

certification of an EIR does not necessarily moot a prior appeal. (Save Tara 

v. City of West Hollywood (2008) 45 Cal.4th 116, 127.) Instead, courts must 

look at whether the project has “undergone irreversible physical or legal 

changes” that render the relief sought unavailable. (Ibid.)

SBN first argues the 2021 EIR does not moot the current appeal 

because it does not address the flaws in the SEIR or replace the 2005 EIR. It 

contends the 2021 EIR uses 2018 as its baseline for analyzing the impacts of 

increased enrollment on population, housing, and public services. SBN 

further asserts this court can provide it with effective relief by ruling in 

SBN’s favor on the inadequacy of the SEIR and require the Regents “to 

adequately analyze [the] effects of the Updated Campus Headcount.” We 

disagree.

Contrary to SBN’s position, the 2021 EIR specifically states it replaces 

the 2005 EIR. The draft 2021 EIR notes the 2005 EIR “requires updating” 

and “[t]he proposed LRDP Update analyzed in this EIR would replace the 

current LRDP . . . .” Likewise, the final 2021 EIR states the updated LRDP 

would “replace UC Berkeley’s existing LRDP.” The SEIR’s analysis of 

student enrollment increases, which “supplement[ed] the 2005 EIR’s 

analysis” thus addresses an EIR that is no longer in effect.

Moreover, the 2021 EIR directly analyzes the past increases since 2007 

and is not, as SBN claims, limited to the increase in campus population 

between 2018 and 2037. The 2021 EIR contains a section entitled “Master 
24

Response 17. 2005 LRDP EIR Population Projections,” which “provides an 

evaluation of the program-level environmental impacts of the LRDP Update 

to address UC Berkeley population growth between 2007 (when the 2005 

LRDP EIR student and total UC Berkeley population projections were first 

exceeded) and the 2018–19 baseline population.” The 2021 EIR 

acknowledged “UC Berkeley addressed this issue in 2019 as part of the 

evaluation presented in the [SEIR],” but stated it was again addressing the 

population growth in response to various comments requesting such an 

analysis be included in the 2021 EIR. The 2021 EIR evaluated the 

environmental impacts of UC Berkeley’s population growth between 2007 

and 2018–2019 as to air quality, noise, parks and recreation, greenhouse gas 

emissions, population and housing, transportation, and public services. 

While we do not opine upon the adequacy of this analysis because challenges 

to the 2021 EIR are not part of this appeal, SBN is incorrect that an analysis 

of past student enrollment increases was not part of the 2021 EIR.

Finally, SBN asserts this court can provide effective relief by affirming 

the trial court’s rulings in SBN’s favor. However, as discussed below Senate 

Bill 118 precludes this court from doing so.11 Accordingly, SBN has failed to 

identify any effective relief this court can provide in light of the Regents’ 

11 SBN also argues this court should rule on the merits of its claims 

based on certain exemptions to technical mootness. Specifically, SBN claims 

the issues raised are likely to reoccur and are of public interest. We decline 

to apply such exemptions. First, the 2005 EIR has been replaced and thus 

challenges to it are unlikely to reoccur. Nor is it likely that public agencies 

will adopt and certify new EIR’s merely to avoid litigation; the lengthy and 

onerous process of certifying such EIR’s negates such a risk. Likewise, while 

the public may have an interest in the campus population at UC Berkeley, 

those interests—as noted by SBN—are presumably represented in the 

litigation involving the 2021 EIR.
25

certification of the 2021 EIR and passage of Senate Bill 118. We thus hold 

SBN’s challenge to the increased enrollment analysis in the SEIR is moot.

2. Senate Bill 118

Regarding SBN’s challenge to the student enrollment increase analysis, 

the judgment (1) voided “any decision or decisions [the Regents] may have 

made . . . to increase student enrollment in academic year 2022–2023 or later 

above the level of student enrollment at UC Berkeley in academic year 2020–

2021,” and (2) ordered the Regents “to suspend any further increases in 

student enrollment at UC Berkeley, in academic years 2022–2023 and later, 

above the level of student enrollment in academic year 2020–2021 until [the 

Regents] have demonstrated full compliance with this Judgment and Writ 

and the Court orders discharge of the Writ.” The Regents assert Senate Bill 

118 makes these two provisions unenforceable.12 

Senate Bill 118 modified section 21080.09 to alter the focus from 

enrollment to “campus population” and clarify that “Enrollment or changes in 

enrollment, by themselves, do not constitute a project” for purposes of CEQA. 

(§ 21080.09, subd. (d).) Senate Bill 118 also added subdivision (e), which 

limited the remedies available to the court if it finds deficiencies in the 

environmental review based on enrollment. Subdivision (e)(1) provides: “If a 

court determines that increases in campus population exceed the projections 

adopted in the most recent long-range development plan and analyzed in the 

supporting environmental impact report, and those increases result in 

significant environmental impacts, the court may order the campus or 

medical center to prepare a new, supplemental, or subsequent environmental 

12 The Regents also assert these two sections of the judgment and writ 

violate section 21168.9 and legislative expectations for the University of 

California system. We need not reach these issues because we conclude 

Senate Bill 118 applies and voids these provisions.
26

impact report. Only if a new, supplemental, or subsequent environmental 

impact report has not been certified within 18 months of that order, the court 

may . . . enjoin increases in campus population that exceed the projections 

adopted in the most recent long-range development plan and analyzed in the 

supporting environmental impact report.” (§ 21080.09, subd. (e)(1).) 

Subdivision (e)(2) then voids any preexisting injunctions or judgments: 

“Notwithstanding any other provision of this division, any injunction or 

judgment in effect as of the effective date of this subdivision suspending or 

otherwise affecting enrollment shall be unenforceable.” (§ 21080.09, 

subd. (e)(2).)

a. Validity of Senate Bill 118

SBN argues Senate Bill 118 violates the separation of powers doctrine 

because the provision abrogating freezes on enrollment or campus population 

unconstitutionally interferes with the court’s exercise of judicial powers. 

“The separation of powers doctrine holds that one branch of the 

government cannot exercise essential powers that our state Constitution has 

delegated to another branch. [Citation.] ‘A core function of the Legislature is 

to make statutory law . . . . A core function of the judiciary is to resolve 

specific controversies between parties.’ [Citation.] Thus, ‘[w]hen cases 

become final for separation of powers purposes, the Legislature may not . . . 

bind the courts with an after-the-fact declaration of legislative intent.’

[Citation.] As the United States Supreme Court has explained in the context 

of the parallel federal separation of powers doctrine, ‘[w]hen retroactive 

legislation requires its own application in a case already finally adjudicated, 

it does no more and no less than “reverse a determination once made, in a 

particular case.” ’ ” (Smart Corner Owners Assn. v. CJUF Smart Corner LLC

(2021) 64 Cal.App.5th 439, 465–466 (Smart Corner Owners).)
27

“However, ‘[s]eparation of powers principles do not preclude the 

Legislature from amending a statute and applying the change to both 

pending and future cases, though any such law cannot “readjudicat[e]” or 

otherwise “disregard” judgments that are already “final.” ’ [Citation.] 

‘Because the judicial branch consists of a hierarchy of courts—from district 

courts and appellate courts to the Supreme Court itself—a judgment has no 

conclusive effect for separation of powers purposes until the time for appeal 

has passed, or an appeal has been pursued and the review process is 

completed. Therefore, separation of powers principles are not implicated, and 

a lower court decision has not been unconstitutionally altered, when a 

reviewing court applies a new retroactive statute to cases still pending on 

appeal.’ [Citation.] ‘[O]nly those decisions that represent “the final word of 

the [judicial] department as a whole,” as expressed by “the last court in the 

hierarchy that rules on the case” ’ are constitutionally protected from the 

effects of retroactive legislation.” (Id. at p. 466, italics omitted.)

Here, the judgment and writ issued by the trial court was not “final” for 

separation of powers purposes. Rather, the Regents were entitled to, and did, 

appeal to this court. During that time, the Legislature passed Senate 

Bill 118. Accordingly, its application to this matter does not run afoul of the 

separation of powers doctrine.13

Moreover, courts have rejected separation of powers challenges to 

legislation that alters the prospective effect of an injunction. For example, in 

in Mendly v. County of Los Angeles (1994) 23 Cal.App.4th 1193 (Mendly), the 

plaintiffs initially filed suit challenging the adequacy of the county’s general 

13 SBN argues the rule requiring that judgments be final relates to a 

prohibition on readjudicating finally resolved causes of action. However, 

SBN fails to cite any authority imposing such an interpretation.
28

assistance grant and, with court approval, the parties entered into a 

stipulated judgment that set forth a formula for payments for the next five 

years. (Id. at p. 1202.) One year into the five-year period, the Legislature 

passed urgency legislation which found that several counties had entered into 

stipulated judgments requiring the payment of general assistance at certain 

levels and that, due to an unanticipated fiscal emergency throughout the 

state, those counties would suffer serious consequences if forced to maintain 

those levels. (Id. at pp. 1200–1201.) Accordingly, the Legislature declared its 

intent to “abrogate the provisions of existing agreements, including courtordered stipulated judgments, that require counties to provide general 

assistance grants above the current levels” and further “declared the 

provisions of any such agreement or court-ordered stipulated judgment ‘null 

and void.’ ” (Id. at p. 1201.) The plaintiffs thereafter moved to enforce the 

stipulated judgment, arguing in part that the legislation “ ‘represents an 

impermissible legislative encroachment upon judicial authority in 

contravention of the separation of powers doctrine under the California 

Constitution,’ because the legislation discarded ‘a final judgment of a court.’ ” 

(Id. at pp. 1203, 1211.) The court disagreed, concluding that the Legislature 

had properly exercised its power to enact a law that prospectively abrogated 

the effect of a judicial decision and that the legislation did not amount to a 

modification of the judgment. (Id. at p. 1212.)

Similarly, in Sagaser v. McCarthy (1986) 176 Cal.App.3d 288 (Sagaser), 

the plaintiffs unsuccessfully challenged an EIR for the construction of a 

prison. While their appeal was pending, the Legislature introduced and the 

Governor signed a bill containing an urgency clause that had the effect of 

exempting the prison site from CEQA compliance. (Sagaser, at p. 298.) 

Finding the legislation valid and constitutional, the court rejected several 
29

challenges, including that the bill violated the separation of powers doctrine.

(Sagaser, at pp. 311–312.) Sagaser determined the prospective CEQA 

exemption “did not readjudicate or review the judgment in an attempt to 

determine whether the EIR was adequate.” (Sagaser, at p. 311.) The court 

explained the Legislature did not assume the judicial branch’s role; rather, 

the Legislature exercised its role in deciding that public policy reasons 

dictated that CEQA compliance was unnecessary for construction of the 

prison. (Sagaser, at pp. 311–312.)

SBN asserts the dissent, rather than the majority opinion, in Mendly

“provides the correct analysis” because nullifying judgments infringes on the 

judiciary. SBN also seeks to distinguish Mendly because the judgment 

“arguably intrude[d] upon[] the Legislature’s exercise of one of its core 

legislative powers: i.e., adopting a budget.” We disagree. In Mendly, the 

dissent took issue with the majority’s opinion by emphasizing the stipulated 

judgment was a final judgment that involved a financial component; it was

not merely an injunction requiring the state to comply with a statute. 

(Mendly, supra, 23 Cal.App.4th at pp. 1250–1251 (dis. opn. of Johnson, J.).) 

These points of distinction are not relevant here, where the judgment is 

neither final nor involves a financial payment. Rather, the order at issue

constitutes the type of injunction the dissent acknowledges is subject to 

amendment by the Legislature. (Id. at p. 1250 [“Had [the] judgment merely 

enjoined the county to conduct the types of studies and otherwise comply with 

[the applicable statute], it would have fit the model of a ‘declaratory 

judgment and injunctive decree.’ ”].) 

SBN does not dispute the Legislature is entitled to amend CEQA to 

meet changing policy goals. (See Saltonstall v. City of Sacramento (2014) 

231 Cal.App.4th 837, 854 [“ ‘CEQA remains a legislative act, subject to 
30

legislative limitation and legislative amendment’ ”].) And SBN has not cited 

any authority suggesting the Legislature cannot prioritize access to education 

via enrollment levels over certain environmental concerns. Accordingly, we 

find Senate Bill 118 constitutional and applicable to the trial court’s 

judgment.

b. Application of Senate Bill 118 to the Judgment

In evaluating whether Senate Bill 118 renders the trial court’s order 

unenforceable, we apply well-established principles of statutory 

interpretation. “ ‘We consider first the words of a statute, as the most 

reliable indicator of legislative intent.’ [Citation.] In doing so, we give the 

words ‘their usual and ordinary meaning,’ viewed in the context of the statute 

as a whole. [Citation.] As part of this process, ‘ “ ‘[every] statute should be 

construed with reference to the whole system of law of which it is a part so 

that all may be harmonized and have effect.’ ” ’ [Citation.] [¶] When the 

language of a statute is ambiguous—that is, when the words of the statute 

are susceptible to more than one reasonable meaning, given their usual and 

ordinary meaning and considered in the context of the statute as a whole—we 

consult other indicia of the Legislature’s intent, including such extrinsic aids 

as legislative history and public policy.” (Union of Medical Marijuana 

Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184.)

Here, subdivision (e)(2) of section 21080.09 makes any “injunction or 

judgment in effect . . . suspending or otherwise affecting enrollment . . . 

unenforceable.” Thus, the plain language of the statute renders 

unenforceable the trial court’s order voiding any decisions by the Regents to 
31

increase student enrollment and suspending any further increases in student 

enrollment.14

Moreover, section 21080.09, subdivision (e)(1) limits any court from 

entering a future order limiting UC Berkeley’s campus population due to 

shortcomings in the SEIR. While courts are permitted to “enjoin increases in 

campus population that exceed the projections adopted in the most recent 

long-range development plan and analyzed in the supporting environmental 

impact report,” subdivision (e)(1) requires the court to (1) “determine[] that 

increases in campus population exceed[ed] the projections adopted in the 

most recent long-range development plan and analyzed in the supporting 

environmental impact report”; (2) determine “those increases result in 

significant environmental impacts”; (3) “order the campus or medical center 

to prepare a new, supplemental, or subsequent environmental impact report”;

and (4) find “a new, supplemental, or subsequent environmental impact 

report has not been certified within 18 months of that order.” (§ 21080.09, 

subd. (e)(1).) Here, the Regents have already satisfied the fourth step by

preparing and certifying the 2021 EIR, which addressed the increased 

campus population at UC Berkeley. Accordingly, section 21080.09 prohibits 

courts from granting the relief imposed in connection with SBN’s challenge to 

the SEIR’s increased enrollment analysis and precludes any further 

injunction as to enrollment or campus population at this time.

These two changes—certification of the 2021 EIR and passage of 

Senate Bill 118—present a unique set of circumstances which, as a result, 

restrict this court from “ ‘provid[ing] the parties with effective relief.’ ” 

14 Because we conclude section 21080.09, subdivision (e) voids the 

enrollment pause remedy in the trial court’s judgment and writ, we need not 

address the parties’ remaining arguments as to this issue. 
32

(Golden Gate Land Holdings LLC v. East Bay Regional Park Dist., supra, 

215 Cal.App.4th at p. 366.) We thus conclude SBN’s challenge to the 

increased enrollment analysis in the SEIR is moot.

While the findings and judgment in connection with the increased 

enrollment analysis are moot and superseded by Senate Bill 118, the same is 

not necessarily true as to the Upper Hearst Development project. 

Accordingly, we consider the issues raised in SBN’s cross-appeal to assess 

whether the Regents’ certification of the Upper Hearst Development project 

runs afoul of CEQA in connection with any of SBN’s nonenrollment-based 

challenges.

D. The Cross-appeal

To the extent SBN’s cross-appeal challenges the trial court’s findings in 

connection with the increased enrollment analysis, those issues are moot for 

the reasons stated above. However, SBN also challenges certain aspects of 

the SEIR addressing the Upper Hearst Development project. Specifically, 

SBN argues (1) the SEIR’s project description violates CEQA, (2) the SEIR 

failed to properly identify mitigation measures for significant impacts on 

historic resources, and (3) the SEIR failed to consider increased aesthetic 

impacts from increased enrollment.

1. The Project Description

SBN argues the “uncertain” project description “subverted public 

comment.” SBN asserts the notice of preparation stated the SEIR would 

conduct environmental review of student enrollment increases, whereas the 

SEIR itself claimed such review was merely part of an “ ‘updated population 

baseline’ ” and did not constitute a project under CEQA. SBN claims these 

statements were confusing because the “ ‘project description’ ” must include 
33

activities that may cause environmental impact, and an incomplete project 

description undermines a full analysis of project impacts. 

“An accurate description of the proposed project is ‘the heart of the EIR 

process.’ [Citation.] ‘An accurate project description is necessary for an 

intelligent evaluation of the potential environmental effects of a proposed 

activity. [Citation.]’ [Citation.] ‘ “A curtailed or distorted project description 

may stultify the objectives of the reporting process. Only through an 

accurate view of the project may affected outsiders and public decisionmakers balance the proposal’s benefit against its environmental cost, 

consider mitigation measures, assess the advantage of terminating the 

proposal . . . and weigh other alternatives in the balance. An accurate, stable 

and finite project description is the sine qua non of an informative and legally 

sufficient EIR.” ’ ” (Rio Vista Farm Bureau Center v. County of Solano (1992) 

5 Cal.App.4th 351, 369–370.) We review the adequacy of a project description 

de novo. (Washoe Meadows Community v. Department of Parks & Recreation

(2017) 17 Cal.App.5th 277, 287.)

“To further the objectives of CEQA, the term ‘project’ is defined broadly 

as any ‘activity which is being approved and which may be subject to several 

discretionary approvals by governmental agencies.’ A project encompasses 

‘the whole of an action, which has a potential for resulting in a physical 

change in the environment, directly or ultimately . . . .’ ([Cal. Code Regs., 

tit. 14], § 15378, subds. (a), (c); [citation].)” (Rio Vista Farm Bureau Center v. 

County of Solano, supra, 5 Cal.App.4th at p. 370, fn. omitted.) 

However, section 21080.09, as amended by Senate Bill 118, clarified 

“[e]nrollment or changes in enrollment, by themselves, do not constitute a 

project as defined in Section 21065.” (§ 21080.09, subd. (d).) Thus, 
34

section 21080.09 supports the SEIR’s omission of a direct reference to student

enrollment increases in the project description. 

Moreover, the trial court concluded: “The SEIR describes the Upper 

Hearst Development as the relevant project. That project description does 

not shift from one part of the SEIR to another. The SEIR situates that 

project within its larger context of increasing student enrollment and 

discusses cumulative effects. The SEIR’s definition is clear enough that 

reasonable members of the public would not be misled about the scope of the 

project under review . . . .” We agree. The project described in both the draft 

and final SEIR is the Upper Hearst Development project. The “Project 

Summary” section of the SEIR contains three subsections: (1) “Proposed 

Project”; (2) “Environmental Analysis”; and (3) “Project Alternatives.” While 

the “Proposed Project” subsection discusses the Upper Hearst Development 

project, the “Environmental Analysis” subsection of the project summary 

states: “[T]he Draft SEIR also establishes an updated population baseline to 

reflect the existing campus headcount (which is greater than the projections 

in the [2005 EIR] . . . . [I]n its response to comments to the [2005 EIR], UC 

Berkeley made a commitment to the City of Berkeley that, if enrollment 

increased beyond the projections set forth in the [2005 EIR], it would 

undertake additional review under CEQA. [¶] Consistent with this 

commitment, the SEIR uses an updated population baseline and, in its 

environmental analysis of each impact category, takes this updated baseline 

into account . . . .” The project summary thus sets forth both the specific 

construction project being reviewed—i.e., the Upper Hearst Development 

project—and the scope of the environmental analysis being conducted—i.e., 

review of both the Upper Hearst Development project and the increased 

student enrollment.
35

SBN argues County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 

185 (Inyo) and City of Santee v. County of San Diego (1989) 214 Cal.App.3d 

1438 (Santee) support its position. We find those cases distinguishable. In 

Inyo, the court evaluated the adequacy of an EIR addressing groundwater 

extraction. (Inyo, at p. 189.) The court noted “the project concept expands 

and contracts from place to place within the EIR.” (Id. at p. 190.) It noted 

the EIR varied from a narrow project on groundwater, to a “ ‘reappraisal’ of 

the rate of water export” to a third “ ‘recommended project’ ” involving both 

groundwater extraction and management of certain water exports. (Id. at 

p. 197.) The court concluded “[t]he incessant shifts among different project 

descriptions . . . vitiate the city’s EIR process as a vehicle for intelligent 

public participation” and ran afoul of CEQA. (Inyo, at pp. 197, 200.) 

In Santee, the Fourth Appellate District evaluated an EIR addressing 

construction of a temporary expansion to existing detention facilities. 

(Santee, supra, 214 Cal.App.3d at p. 1443.) The court noted the EIR was 

ambiguous and contradictory as to how long the “temporary” expansion 

would be in use, with the EIR referencing both a three-year and a seven-year 

period. (Id. at p. 1451.) The court also noted it was reasonably foreseeable 

the expansion would be in use for longer than seven years. (Ibid.) The court 

thus found the EIR inadequate, explaining the lack of clarity regarding the 

length of its use was problematic and the EIR needed to address “the true 

scope of the project for intelligent weighing of the environmental 

consequences of the project.” (Id. at pp. 1454–1455.) 

Here, the SEIR was consistent in its discussion of the project and the 

scope of its environmental review. Likewise, while the SEIR discussed a 

project that was a component of a larger framework for UC Berkeley’s 

development and growth, the Regents had already adopted the programmatic 
36

EIR—i.e., the 2005 EIR—that was missing in Santee. As SBN acknowledges, 

“[t]he ultimate inquiry . . . is whether the EIR includes enough detail ‘to 

enable those who did not participate in its preparation to understand and to 

consider meaningfully the issues raised by the proposed project.’ ” (Sierra 

Club v. County of Fresno (2018) 6 Cal.5th 502, 516.) We conclude the SEIR 

properly did so.

2. Mitigation Measures for Significant Impacts to Historical 

Resources

The SEIR’s mitigation measure to reduce significant impacts on 

historic properties provides that “UC Berkeley shall retain a historic 

architect . . . to review plans for the proposed academic and residential 

buildings,” and that architect “shall provide input and refinements to the 

design team . . . to improve compatibility with neighboring historical 

resources and compliance with the Secretary of the Interior’s Standards.” 

SBN argues this approach improperly defers creation of the actual 

mitigation measure until after project approval, citing POET, LLC v. State 

Air Resources Bd. (2013) 218 Cal.App.4th 681 (POET). This situation is 

distinguishable from POET. In that matter, the State Air Resources Board 

noted certain potential environmental impacts (increased emissions of 

nitrogen oxide) and stated it believed such impacts “can be mitigated by 

adjustments to fuel specifications” without the adoption of any specific 

mitigation measure. (Id. at p. 734.) Here, the SEIR sets forth a specific 

mitigation measure—retaining an architect to provide input on the design.

However, SBN’s argument that the mitigation measure is insufficient 

has merit. “Partial effectiveness is necessary for the measure to be labeled a 

‘mitigation measure.’ While the extent of the mitigation may be uncertain, 

there must be some reductions or offsets for the label ‘mitigation measure’ to 

be accurate. The partial effectiveness requirement is derived from the 
37

mandatory language in our Supreme Court’s statement that ‘[m]itigation 

measures need not include precise quantitative performance standards, but 

they must be at least partially effective, even if they cannot mitigate 

significant impacts to less than significant levels.’ ” (King & Gardiner Farms, 

LLC v. County of Kern (2020) 45 Cal.App.5th 814, 865, italics added by King 

& Gardiner Farms.) Likewise, CEQA Guidelines allow “[t]he specific details 

of a mitigation measure” to be “developed after project approval . . . provided 

that the agency (1) commits itself to the mitigation, (2) adopts specific 

performance standards the mitigation will achieve, and (3) identifies the 

type(s) of potential action(s) that can feasibly achieve that performance 

standard and that will be considered, analyzed, and potentially incorporated 

in the mitigation measure.” (Cal. Code Regs., tit. 14 § 15126.4, 

subd. (a)(1)(B).)

SBN asserts the mitigation measure only “result[s] in 

recommendations” for UC Berkeley to “ ‘consider.’ ” We agree. The 

mitigation measure neither requires the Regents to comply with the 

Secretary of Interior’s Standards nor incorporates recommendations from the 

architect. Rather, it only requires the Regents to “retain a historic architect” 

to review the building plans. While the architect “shall provide input and 

refinements to the design team,” nothing in the mitigation measure requires 

the design team to accept or incorporate those recommendations.15

However, the lack of a meaningful mitigation measure does not 

necessarily doom the SEIR in light of the Regents’ conclusion that the impact 

of the project—regardless of whether it utilizes the mitigation measure—is 

15 The trial court found the mitigation measure “requires the 

University to adopt the Secretary of Interior’s Standards.” The Regents 

acknowledge the mitigation measure does not impose such a commitment. 
38

significant and unavoidable and no other mitigation measure is feasible. 

Rather, we must consider whether the Regents have adequately complied 

with statutory requirements for “significant and unavoidable” impacts. 

“A public agency may approve a project that will have a significant 

effect on the environment if the agency finds that: (1) ‘[s]pecific economic, 

legal, social, technological, or other considerations . . . make infeasible the 

mitigation measures or alternatives identified in the [EIR],’ and (2) the 

significant effects on the environment are outweighed by ‘specific overriding 

economic, legal, social, technological, or other benefits of the project.’ ” (Los 

Angeles Conservancy v. City of West Hollywood (2017) 18 Cal.App.5th 1031, 

1041.) Similarly, “[i]f the reductions and offsets achieved by feasible 

mitigation measures [are] insufficient to render the environmental impact 

insignificant, the lead agency still may approve the project if it adopts a 

statement of overriding considerations.” (King & Gardiner Farms, LLC v. 

County of Kern, supra, 45 Cal.App.5th at p. 852, citing § 21081, subd. (b).)

Here, the Regents found any mitigation effort would fail to reduce the 

project impact to insignificant levels due to, in relevant part, “incompatibility 

of scale and massing.” Due to this incompatibility, the Regents found “[t]he 

Project [(Upper Hearst Development project)] will degrade the integrity of 

feeling and setting of historical resources adjacent to the Project site, which 

will contribute to a significant and unavoidable cumulative impact on 

historical resources.” The Regents concluded “specific economic, legal, social, 

technological, or other considerations make it infeasible to reduce this impact 

to a less than significant level” because reducing the scale of the Upper 

Hearst Development project “would not fully meet objectives related to 

fulfilling the academic needs of the School’s program. . . . [and] would not 

fully meet objectives to provide housing on-site . . . .” Accordingly, the 
39

Regents found “the benefits of the Project outweigh the Project’s significant 

adverse environmental effects” for various reasons, including “to support a 

vital intellectual and engaged community,” to “provid[e] housing for UC

Berkeley faculty and staff that is easily accessible to campus,” and to 

“recruit[] and retain[] top-tier graduate and professional students, expert 

faculty and scholars, as well as ensuring the ongoing success and 

sustainability of the School’s programs.”

SBN argues the Regents abused its discretion in approving the project 

because the SEIR failed to explain the uncertainty regarding why the impact 

on historical resources could not be reduced to insignificant levels. 

Specifically, SBN argues the Regents did not clarify whether compliance with 

the Secretary of the Interior’s Standards would be insufficient to reduce 

impacts to less than significant, compliance with the standards would be 

infeasible, or compliance would be feasible and reduce impacts to less than

significant but reserved the right not to comply with those standards. As 

such, SBN argues this uncertainty violates CEQA. However, this argument 

overlooks the basis identified in the SEIR for ongoing significant impacts—

namely, the “incompatibility of scale and massing.” And the Regents 

concluded the only potential mitigation—a reduction in scale—was 

incompatible with the project goals. Accordingly, we cannot conclude the 

Regents abused their discretion in concluding there were no feasible 

mitigation measures to reduce the impact on historical resources to less than 

significant levels, and they appropriately adopted findings and a statement of 

overriding considerations as required by CEQA.

3. Impact from Increased Street Trash

SBN argues the SEIR failed to adequately analyze comments that 

increased enrollment caused significant aesthetic impacts from increased 
40

trash dumped by students living off campus. We need not reach the merits of 

this issue. As discussed in part II.C., ante, challenges related to the SEIR’s 

analysis of increased enrollment are moot due to the Regents’ certification of 

the 2021 EIR. This conclusion encompasses SBN’s challenge as to whether 

the SEIR adequately analyzed aesthetic impacts from increased enrollment 

beyond the levels set forth in the 2005 EIR.

III. DISPOSITION

The trial court’s judgment granting SBN’s writ petition is vacated, and 

the matter is remanded to the trial court to enter an order dismissing SBN’s 

petition. The parties shall bear their own costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(3).)
41

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SWOPE, J.*

A163810

Save Berkeley’s Neighborhoods v. Regents of University of California

 Judge of the San Mateo County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.