Recent Amendments to the California Environmental Quality Act Address Settlement, Mediation, Frivolous Claims, Tiered Environmental Impact Reports, and Expedited Review

February 10, 2011 | Bulletin No. 961019.1

Governor Schwarzenegger signed three bills that bring change to the California Environmental Quality Act ("CEQA"). The bills both amend existing provisions and add new sections to CEQA.

h3>Assembly Bill 231

AB 231 addresses overriding considerations. CEQA requires a lead agency to prepare and certify an environmental impact report ("EIR") for projects that may have a significant effect on the environment. If the project will not have a significant effect on the environment, the lead agency must adopt a negative declaration. Pursuant to CEQA, a lead agency must prepare a mitigated negative declaration for a project if revisions to the project "would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment." If the environmental impact of a project cannot be mitigated, a lead agency may find "that specified overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment." If an EIR has been certified, "a lead agency is required to use a tiered EIR for a later project if the lead agency determines that the later project is consistent with the program, plan, policy, or ordinance, and satisfies other criteria."

AB 231 authorizes a lead agency for a later project that utilizes a tiered EIR to use a previous finding of overriding considerations if certain requirements are met. AB 231 provides that if a prior EIR has been prepared and certified and contains a finding of overriding consideration, the lead agency for a later project that uses a tiered environmental impact report from that project may incorporate by reference the finding of overriding consideration if the following conditions are met: (1) the lead agency finds significant impacts of the project "on the environment are not greater than or different from those identified" in the previous EIR; (2) the lead agency integrates "into the later project all the applicable mitigation measures identified" by the previous EIR; (3) the lead agency's "prior finding of overriding considerations was not based on a determination that mitigation measures should be identified and approved in a subsequent environmental review;" (4) the prior EIR "was certified not more than three years before the date findings are made pursuant to Section 21081 for the later project;" and (5) the lead agency has found the mitigation measures or alternatives that were determined to be infeasible in the prior EIR "remain infeasible based on the criteria set forth in that section."

AB 231 took effect in September 2010 and will remain in effect until January 1, 2016.

Assembly Bill 1846

AB 1846 expedites the environmental review process for projects that involve installation of equipment that reduces greenhouse gas emissions. Pursuant to CEQA, specified state agencies must perform "at the time of adoption of a rule or regulation requiring the installation of pollution control equipment or a performance standard or treatment requirement, an environmental analysis of the reasonably foreseeable methods of compliance." A focused EIR may be used where a project consists "solely of the installation of pollution control equipment required by the specified state agencies." AB 1846 requires that this environmental analysis must "be performed for a rule or regulation that requires the installation of pollution control equipment or a performance standard or treatment requirement adopted pursuant to the California Global Warming Solutions Act of 2006." This includes rules and regulations that require the installation of pollution control equipment that have been adopted by the California Public Utilities Commission and the State Energy Resources Conservation and Development Commission.

AB 1846 authorizes the use of a focused EIR if a project "consists solely of the installation of pollution control equipment or other components that are necessary to complete the installation of that equipment that reduces greenhouse gas emissions in compliance with a rule or regulation adopted pursuant to the California Global Warming Solutions Act of 2006."

Senate Bill 1456

SB 1456 also addresses use of a tiered EIR. As discussed above, CEQA requires a lead agency to either prepare and certify an EIR or adopt a negative declaration. A lead agency may use a tiered EIR if a prior EIR has been prepared and certified and a later project meets certain requirements. Prior to the passage of SB 1456, it was not necessary for the report on the later project "to examine those effects that the lead agency determines were, among other things, examined at a sufficient level of detail in the prior environmental impact report." SB 1456 provides that where a lead agency finds the prior EIR adequately addresses a cumulative effect, "that cumulative effect is not required to be examined in a later environmental impact report, mitigated negative declaration, or negative declaration."

SB1456 also has provisions that address settling and mediating CEQA claims. Prior to passage of SB 1456, CEQA provided that a settlement meeting is intended to be conducted concurrently with any judicial proceedings. SB 1456 provides mediation proceedings are also intended to be conducted concurrently with any judicial proceedings.

SB 1456 adds section 21167.8 to the Public Resources Code. This section provides, in part, "Not later than 20 days from the date of service upon a public agency of a petition or complaint brought pursuant to Section 21167, the public agency shall file with the court a notice setting forth the time and place at which all parties shall meet and attempt to settle the litigation." At the meeting the parties must discuss the issues anticipated to be raised in the litigation and the parties must attempt to settle the dispute. If the parties fail to settle the matter, "the court, in its discretion, may, or at the request of any party, shall schedule a further settlement conference before a judge of the superior court." If the litigation continues, the judge who conducted the settlement conference may not preside over the litigation.

SB 1456 adds section 21167.10 to the Public Resources Code. This section authorizes a person who wishes to bring a proceeding or action pursuant to CEQA to file with the lead agency a notice requesting mediation. Within five days of receiving a request for mediation, the lead agency may accept the request for mediation. A request for mediation is deemed denied if the lead agency fails to respond within five business days. The limitation period is tolled until completion of the mediation.

SB 1456 also adds section 21169.11 to the Public Resources Code. This section provides that after a petition is filed in a CEQA action "but at least 30 days before the hearing on the merits, a party may file a motion requesting the court to impose a sanction for a frivolous claim made in the course of an action brought pursuant to this division." "Frivolous" is defined by this section as "totally and completely without merit." If a court finds that a claim is frivolous, it may impose a sanction of up to $10,000 "upon the attorneys, law firms, or parties responsible for the violation."

Also added to the Public Resources Code is section 21177, which provides that a CEQA action or proceeding shall not be brought "unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." Section 21177 further provides, "A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of notice of determination pursuant to Sections 21108 and 21152."

The bill also amended CEQA to provide that in an action or proceeding that alleges noncompliance with CEQA "the Attorney General may file a motion with the court seeking an expedited schedule for resolution of the case upon the grounds that it would be in the public interest to do so." This provision, however, "does not affect the rights of any party under existing law to seek an expedited schedule for resolution of the case."

SB 1456 was designated as an urgency statute and therefore it took effect immediately after it was signed by the Governor in September, 2010. It will remain in effect until January 1, 2016.

Questions

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Jeffrey L. Massey or Daniel J. O'Hanlon | 916.321.4500