Vernon Law, famed Pittsburgh Pirates pitcher, once said: “Experience is a hard teacher because she gives the test first, the lesson afterward.” The same rings true regarding CEQA litigation, where traps for the unwary abound, and mistakes can be painful, costly and even fatal to a client’s claims or action. Based on nearly 25 years of personal experience litigating CEQA cases in California trial and appellate courts, as well as extensively writing and speaking on the topic, I offer for consideration the following ten mistakes all CEQA litigators should be sure to avoid.
- Don’t fail to exhaust your administrative remedies and obtain standing. If you fail to raise an issue you want to litigate during the CEQA public comment period or prior to the close of the lead agency’s public hearing on the project, you will forfeit it, and if you fail to object during that timeframe you will fail to obtain standing to sue at all under CEQA. (Pub. Resources Code, §21177; Central Delta Water Agency v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 245, 273-274.)
- Don’t miss the CEQA statute of limitations. The CEQA statutes of limitation are ordinarily quite short, and unforgiving. (Pub. Resources Code, §21167; Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 39 [30 days after filing of NOD]; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 [35 days after filing of NOE].)
- Don’t fail to comply with all applicable non-CEQA statutes of limitation, even if you have complied with CEQA’s shorter limitations period. Never forget CEQA claims are always a “means to an end” (i.e., challenging project approvals or entitlements based on faulty environmental review), rather than an end in themselves. Therefore, other statutes of limitation may apply and non-compliance with their technical requirements may result in dismissal of your CEQA claims. (E.g. Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 754 [CEQA claims challenging decisions under the Subdivision Map Act dismissed as time-barred despite timely service of petition in compliance with CEQA statute of limitations because petitioner failed to also serve summons on respondents within 90 days of filing petition as required by Map Act’s statute of limitations, Gov. Code, §66499.37].)
- Don’t fail to file a written request for hearing within 90 days of filing a CEQA action. Numerous cases squarely hold that if you fail to jump through this unique CEQA procedural hoop, as required by Public Resources Code §21167.4(a), your action will be dismissed with prejudice as a mandatory matter. (E.g., County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943.)
- Don’t fail to protect your attorney-client privileged/work product protected communications in a joint defense situation. Remember that Public Resources Code §21167.6, defining the contents of the administrative record in a CEQA action, does not abrogate any privilege or impliedly repeal the law of privilege, and that the common interest doctrine of non-waiver codified in Evidence Code §912(d) protects respondent/real party attorney client communications necessary to further the litigants’ interest in a matter of joint concern i.e. producing a legally sufficient CEQA process and EIR and then defending them in litigation. (California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217.)
- Don’t forget that all actions or approvals are not “project approvals” subject to CEQA. Whether as part of strategizing a CEQA challenge, or raising a defense to one, keep in mind that CEQA applies only to discretionary approvals of a project, not ministerial actions (no matter that they approve a project with impacts), and not to actions which fall short of a project “approval”. While the published cases presenting permutations of this important concept are many, this threshold question poses an issue of law susceptible to resolution on demurrer. (The CEB treatise, Practice Under the Environmental Quality Act, written by Mike Zischke and Steve Kostka at Chapter 4, has an excellent discussion of the authorities.)
- Consider the standard of review before litigating or counseling a client. Though it may seem basic or obvious to experienced CEQA practitioners, litigation clients care about the cost of CEQA compliance and litigation, and the chances of successfully defending approvals based on the environmental document prepared by the local agency. The type of document will vary in expense to prepare, and will determine the all-important standard of judicial review, as well. Carefully consider, for example, whether the cost savings associated with trying to shoehorn CEQA review into a lengthy and complex mitigated negative declaration (subject to challenge based on the low threshold “fair argument” test) will really be worth foregoing the presumption of validity and more deferential “substantial evidence” standard that would be applicable to a challenge to a full EIR.
- Don’t forget to name all real parties in interest. Failure to join an indispensible party under Code of Civil Procedure §389(b) prior to the running of CEQA’s short statute of limitations period is another mistake which will result in dismissal of a CEQA lawsuit. (E.g., County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 28.)
- Don’t forget to protect your record with substantial evidence. With few exceptions, mandamus actions raising CEQA claims are “tried” solely on evidence consisting of the administrative record. If possible, coordinate with entitlement advocacy counsel handling the proceedings at the administrative level to ensure sufficient “substantial evidence” (i.e. evidence that is reasonable, credible and of solid value, qualified expert opinions, etc.) is placed into the administrative record on contested points. An EIR’s no impact conclusions and its conclusions regarding the feasibility of mitigation measures, for example, must be supported by substantial evidence in the record to withstand judicial challenge.
- Don’t assert frivolous claims! While many attorneys (especially inexperienced CEQA practitioners) seem to believe that a viable lawsuit challenging a project approval can be made under CEQA in every case, that is simply not true. The legislature has recently addressed this issue by enacting Public Resources Code §21169.11, an urgency measure statute designed to curb frivolous claims made in CEQA actions, and authorizing sanctions of up to $10,000 to be imposed upon the attorneys, law firms or parties responsible for the violation. So think twice before raising a meritless CEQA claim, lest you, your firm or your clients be sanctioned under this new statute.
CEQA litigators who avoid the above mistakes will place themselves and their clients in the best position to succeed in CEQA litigation.