As predicted, Judge Miller’s decision enabled the university to “find” their way out of it, with minimal environmental commitments. (Those promises about stadium use, etc., should be recorded as were the UC commitments when they acquired the blind school for Clark Kerr.) I am a bit surprised that she (to use the Planet’s phrase) sliced and diced the costs; that is her discretion and proves, as does her final order, that she really believed that UC won the case as originally decided.
At least this time other plaintiffs still control the destiny of the litigation, in contrast to the unfortunate Long Range Development Plan outcome. They will need to file an appeal this coming week and simultaneously seek a writ of supersedeas and immediate stay from the Court of Appeal. This can easily be done by competent counsel; it’s been done before on one day’s notice. The immediate stay should be easy, to preserve the status quo while the court evaluates the claims for the writ (equivalent of a preliminary injunction). The potential appellants have a roadmap and in my view should follow it. Not only can they force reconsideration of the project; they could obtain all their costs and potential fees as well.
The City of Berkeley presents a sad example when it comes to litigation against UC. If you are going to war, you resolve to complete the task; now, not unlike Vietnam and Iraq, they are forced into a distasteful withdrawal because of poor foresight, planning, and resolve. Of course the comparison breaks down because the former were mistakes ab initio and post hoc, but in the stadium case there are several outcomes still possible much better for the university, the city and the community.
You don’t bring a case like this without expecting that your victory will need to come on appeal.
Antonio Rossmann is an environmental attorney who teaches land-use law at UC Berkeley’s law school.