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Potential recovery – or payment – of plaintiffs’ attorneys fees is always a factor to be considered in prosecuting and defending CEQA suits.  The stakes in this calculus just got a little higher with a recent decision making it easier for CEQA plaintiffs to recover fees and expanding the scope of proceedings for which fees can be recovered.  In a pithy opinion (typical of Presiding Justice Gilbert), the Second District Court of Appeal reversed a trial court’s order partially denying successful CEQA petitioners’ motion for attorneys’ fees under Code of Civil Procedure section 1021.5, the private attorney general statute.  (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312.)  In so doing, it held the trial court erred in finding (1) that fees incurred in administrative proceedings were not recoverable under the statute, and (2) that a nonpecuniary “personal stake” of petitioner in the outcome of the litigation could preclude a fee recovery.

Section 1021.5 provides in part:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:  (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement … are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.
Continue Reading Successful CEQA Petitioners May Recover Attorneys’ Fees For Administrative Proceedings And Are Not Disqualified By Nonpecuniary Stake

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.)
    Continue Reading Ten CEQA Litigation Mistakes To Avoid