Some CEQA practitioners think the sheer volume of published CEQA opinions demonstrates the need for reform – res ipsa loquitur, so to speak. Recently a litigation mentor of mine, a brilliant man who was at the forefront of CEQA litigation more than 20 years ago when he left my firm to teach law, asked me: “What’s with this Berkeley Hillside Preservation case? Are EIRs really now required for single family homes?” (Note: The Supreme Court has now granted review of that case.) Another leading CEQA practitioner and author views recent legislative efforts at CEQA streamlining and litigation reform as largely ineffectual, and sees no meaningful reforms on the horizon. I tend to share these views, as indicated at the conclusion of a May 22, 2012 post I co-authored with Nadia Costa, on the Fifth District’s Consolidated Irrigation District (“CID”) decision, “Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out.” This is the “follow-up” post explaining why that case struck a “CEQA reform” chord with me.
CID involved a CEQA administrative record dispute. The content of administrative records in CEQA actions has become a fertile litigation battlefield. The significance of the record in CEQA cases is obvious, as it is generally the only evidence the court may consider in ruling on the petition for writ of mandate. The statute prescribing the record’s content – Public Resources Code § 21167.6(e) – has expansive language that courts have described as “contemplat[ing] that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development” (County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8), while they have also reigned in the record’s scope by holding the statute does not abrogate or impliedly repeal the law of privilege. (California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217, 1221.)
In addition to the option of requesting that the lead agency prepare the record, and despite the fact that the lead agency and real party have the most to lose from an inadequate or underinclusive record (e.g., Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 372-373), the statute allows the petitioner to elect to prepare the record itself – subject to the lead agency’s statutory duty and authority to review and certify the record for completeness and accuracy. (Pub. Resources Code, § 21167.6(b)(2).) The record preparation process leading to certification is supposed to occur on an expedited schedule – 60 days from service of the petitioner’s request or election to prepare unless extended by Court order or stipulation (§ 21167.6(b)(1),(c)) – as part of CEQA’s statutory design to prevent “financial prejudice and disruption” from cases “drag[ging] on to the potential serious injury of the real party in interest.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 50.) However, extensions of up to 60 days each are to be “liberally granted by the court when the size of the record … renders infeasible compliance with th[e] time limit.” (§ 21167.6(c).) The “real parties” who suffer serious injury from delay are, of course, the recipients of the challenged project approvals (or, for newer cases, at least the ones named in the agency’s Notice of Determination or Notice of Exemption). (§21167.6.5(a); see my 10/11/11 post.)
But Petitioners have obvious incentive to delay and multiply CEQA litigation to try to kill development projects through delay and increased expense. Some have employed the following procedure toward that end: To elect to prepare the record themselves and then to drag their feet, essentially request that the agency provide “the record” through Public Records Act requests, and then create disputes about the adequacy of the responses and documents they’ve been provided, claiming they’ve been “disabled” from preparing a complete and timely record. Coupled with trial courts’ typically busy schedules (and possible disinclination to deal with matters perceived as trivial), such procedural maneuvers of petitioners may succeed in lengthening and escalating the costs of what are by law supposed to be extremely expedited CEQA proceedings. (But see St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989, 1013-1019 [affirming award of $26,362.50 in record preparation costs to City against non-prevailing CEQA Petitioner who had elected to prepare the record, but whose actions in forcing City to respond to broad unrestricted and apparently nonessential PRA discovery demands reflected complete abandonment of statutory duty to strive to prepare record at reasonable cost].)
And, unfortunately, the record’s certification may be the tip of the iceberg: The trial courts must still resolve disputes about the right to conduct or limit discovery, and also any disputes over record content by ruling on motions to augment or strike, with those trial court decisions themselves being reviewable by the Courts of Appeal under the standard rules, with no deference paid to the lead agency’s certification decisions. (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 64-65, discussed in my 1/5/12 post.)
The bottom line is that these tensions, inherent in CEQA’s current process, foment disputes between lead agencies, real parties, and petitioners over the scope and content of administrative records, often substantially increasing the length and expense of CEQA litigation.
This situation both frustrates and injures lead agencies and real parties (especially the latter), who – unlike Petitioners (see my 11/7/11 post) – are generally unable to recover any of their attorney’s fees even when they completely prevail. Recent efforts at CEQA litigation reform fall short. Authorizing up to $10,000 in sanctions for the assertion of a frivolous claim in the course of a CEQA action (§ 21167.11; see my 9/20/11 post) or catapulting $200 million “Leadership Project” litigation into the Court of Appeal’s original jurisdiction on an expedited schedule (AB 900; see my 9/27/11 post) are undoubtedly well-intentioned, but are still only “band aid” measures of limited or questionable efficacy as a practical matter. (The latter law has been assailed as both unconstitutional in terms of its intrusion into the Courts’ jurisdiction, and unrealistic and unworkable in terms of its 175-day schedule.) Other issues are posed by difficulties in qualifying for the CEQA “streamlining” exemptions, and the potentially diminished usefulness of CEQA categorical exemptions in general after Berkeley Hillside Preservation (as to which, see my 5/23/12 post re the Supreme Court’s grant of review, and my and Nadia Costa’s 2/23/12 post, “CEQA Categorical Exemptions Defeated By More ‘Fair Argument’ of Impact, First District Holds”).
Getting back to my musings on the administrative record litigation battlefield, what really might help the situation would be for the Legislature to remove, altogether, the statutory option for petitioners to prepare the record – which was probably originally intended primarily as a cost-saving measure for petitioners who already had the documents largely in their possession, and could prepare it more cheaply – and to replace it with a standardized procedure and cost caps for agency/real party record preparation. This would preserve the option’s perceived “cost savings” benefits, while removing its potential for abuse by petitioners who seek to delay, or worse, sabotage the record’s contents. Further, tightening up enforcement of the currently “liberal” standard for record preparation extensions due to size, and mandating that motions to augment or strike not be allowed to delay the merits briefing schedule, also would help put CEQA cases back on the expedited scheduling track that the Legislative intended.
With no meaningful legislative reform on the horizon, however, and with overworked trial courts often seemingly unwilling or unable to enforce CEQA’s expedited litigation scheduling provisions, the battles will rage on in CEQA’s litigation trenches for the foreseeable future.
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.