A CEQA reform bill (SB 1451) introduced and authored by seven (7) Democrats (Senators Correa, Galgiani, Hill, Hueso, Roth, and Steinberg, and Assembly Member Mullin) would amend Public Resources Code § 21177 to heighten standing requirements for CEQA plaintiffs by requiring them to raise issues of alleged CEQA noncompliance much earlier in the administrative process to avoid forfeiting the right to later sue on such issues.
The proposed law is aimed primarily at eliminating “late hit” document dumps – i.e., would-be CEQA plaintiffs’ all-too-common strategic tactic of bypassing CEQA’s public comment period and withholding all their objections, issues, and supporting documents and evidence until an agency’s final hearing on approval of a development project. This tactic, which is judicially frowned upon but acknowledged under current law as sufficient to preserve claims for litigation, unfairly presents lead agencies with a dilemma – either act on the project without adequate review of the administrative record to ensure the necessary findings are made and supported, or delay action until a continued future hearing so that the “late hit” materials can be properly reviewed and digested. In either event, the late hit produces a “win/win” for project opponents seeking to delay and derail projects, and a “lose/lose” situation for project developers and lead agencies.
Public Resources Code § 21177(a)(1) currently provides that a CEQA action may not be bought “unless the alleged grounds for noncompliance … were presented to the public agency orally or in writing by any person during the public comment period provided [on the EIR or Negative Declaration by CEQA] … or prior to the close of the public hearing on the project[.]” (Emph. added.) SB 1451 would qualify and severely limit the availability of the latter option – i.e., presentation of the objections beyond the comment period and at any time up until the close of the final public hearing on the project – so that it would be available to preserve issues for later litigation only “if the alleged grounds for noncompliance were not known and could not have been known with the exercise of reasonable diligence during the public comment period or if no public comment period was provided by [CEQA.]”
CEQA provides for public comment periods on EIRs and Negative Declarations, and that lead agencies must consider the public comments received (and, in the case of EIRs, respond in writing to any timely significant environmental comments); accordingly, project opponents challenging such CEQA documents would (if SB 1451 were to pass in its current form) no longer be able to tactically withhold from the lead agency until the “eleventh hour” their CEQA objections and issues on which they intend to sue. At the same time, the proposed law provides a reasonable “safety valve” for plaintiffs who could not with the exercise of reasonable diligence have known of the CEQA noncompliance issue during the public comment period. For example, an issue giving rise to claim that a Final EIR’s responses to comments are legally inadequate obviously could not with reasonable diligence be known until after the close of the public comment period on the Draft EIR, and would thus properly be raised at or prior to the close of the final public hearing on the project. SB 1451’s changes proposed above would not apply to projects for which the public comment has expired but approval has not been granted on or before January 1, 2015.
In addition to the above proposed changes, SB 1451 would also make clear that persons objecting to a project and intending to raise in litigation issues raised by others during the comment period would themselves have to object during the public comment period, unless no such period was provided by CEQA (e.g., where a CEQA exemption is being considered), in which case they could permissibly object at or before the close of the final public hearing on the project. (Proposed Pub. Resources Code, § 21177(b).) Finally, SB 1451 would eliminate section 21177’s current January 1, 2016 sunset date, and thus extend its amended (and other) provisions indefinitely. Significantly, under those other provisions, an organization formed after the approval of a project would have standing to bring a CEQA action, but only if one of its members had satisfied all of the statute’s requirements to obtain individual standing to bring the action, as discussed above.
In my view, SB 1451 is a positive step toward CEQA standing reform. It would, if enacted, provide for a more orderly and efficient CEQA administrative process by eliminating unnecessary delays and disruptive litigation tactics, while promoting greater and more meaningful public participation on genuine environmental issues. While the bill doesn’t address all CEQA standing issues in need of reform, it is a thoughtful incremental Legislative reform effort that should be welcomed and supported by both lead agencies and project proponents.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.