BILL ANALYSIS Ó
AB 320
Page 1
Date of Hearing: March 21, 2011
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 320 (Hill) - As Amended: February 9, 2011
SUBJECT : Environmental quality: California Environmental
Quality Act (CEQA): determination: dispute
SUMMARY : Prevents a CEQA lawsuit from being dismissed for not
naming indispensible parties if the plaintiff names all real
parties in interest as identified in the lead agencies notice of
determination (NOD) or notice of exemption (NOE).
EXISTING LAW :
1)Requires lead agencies with the principal responsibility for
carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or
environmental impact report for this action, unless the
project is exempt from CEQA.
2)Requires a lead state agency to file an NOD with the Office of
Planning and Research and requires a lead local agency to file
an NOD with the appropriate county clerk(s). A state and
local agency may file an NOE if it determines that a project
is exempt from CEQA.
3)Establishes statute of limitations for an action to challenge
acts or decisions of a public agency on the grounds that they
violate CEQA. In general, the filing of an NOD triggers a 30
day limitations period, the filing of an NOE triggers a 35 day
limitation period, and if there is no notice there is a 180
day limitation period triggered by the commencement of the
project.
4)Requires the plaintiff to name, as a real party in interest,
any recipient of an approval challenged through a CEQA
lawsuit. Failure to name a recipient of approval that is an
indispensible party can be grounds for dismissal. If
dismissal occurs after the statute of limitation expires, the
court will generally not allow leave to amend.
THIS BILL :
AB 320
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1)Requires state agencies and local governments, when filing an
NOD or NOE, to name the recipient of the agency's approval, if
any.
2)Requires the plaintiff in a CEQA action to name in its
complaint, as a real party in interest, a recipient of an
approval as identified by the public agency in its NOD or NOE.
3)Establishes that failure to name potential persons, other than
those real parties in interest as identified by the public
agency in its NOD or NOE, is not grounds for dismissal.
FISCAL EFFECT : Unknown
AB 320
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COMMENTS :
Under CEQA civil procedure laws, if a lawsuit does not name a
recipient of an approval, the court must determine whether "in
equity and good conscience the action should proceed among the
named parties, or should be dismissed without prejudice, the
absent person being thus regarded as indispensable."
Often when a lawsuit is dismissed for failure to name an
indispensible party, the plaintiff can cure the deficiency by
amending the complaint to include the absent party. However,
because of the particularly short statute of limitations in CEQA
cases--30 days in many cases--it is unlikely that a plaintiff
will have an opportunity to amend the complaint before the
statute of limitations run.
This problem with indispensible parties and CEQA's short
statutes of limitations is illustrated in County of Imperial v.
Superior Court (2007) 152 Cal. App. 4th 13. In this case, the
Imperial Irrigation District (Imperial) and San Diego County
Water Authority (San Diego) entered into an agreement to
transfer 200,000 acre-feet of water per year from Imperial to
San Diego and conserve 100,000 acre-feet of water per year for
possible future acquisition by the Metropolitan Water District
of Southern California (Metro) and Coachella Valley Water
District (Coachella). The State Water Resources Control Board
(Board) approved the transfer. The County of Imperial (County)
filed actions challenging various aspects of the Board's
decision under CEQA. The County only named Imperial and San
Diego in these actions since they were the contracting parties.
The California Court of Appeal found that Metro and Coachella
were indispensible parties because, among other reasons, they
would potentially lose 100,000 acre-feet per year of water
intended for them. This finding authorized dismissal of the
case. Since the statute of limitations had run, the County was
not granted leave to amend and its case died.
According to the author's office, CEQA practitioners are now
forced to over-name and serve parties who might or might not be
considered indispensible to ensure no one is missed and that
important cases are not dismissed. This is extremely burdensome
not only to the petitioners, but also to those who have been
named as real parties in interest by the petitioners simply out
of an abundance of caution.
AB 320
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This bill intends to prevent the dismissal of important and
meritorious CEQA cases and the over-naming of parties by
requiring a lead agency to name the recipient of its approval in
its NODs and NOEs. This would allow a plaintiff in a CEQA
action to easily ascertain the real parties in interest so
he/she knows who to name and not name in the lawsuit. This bill
would establish that the plaintiff's failure to name a party,
other than those identified by a lead agency in an NOD or NOE,
is not grounds for dismissal pursuant to the indispensible party
rules. As such, if a lead agency mistakenly omits a name on an
NOD or NOE, it will not be to the detriment of the plaintiff.
Similar bills, SB 68 (Kuehl) in 2008 and AB 499 (Hill) in 2010
were approved by the Legislature but vetoed by Governor
Schwarzenegger, who objected to giving CEQA plaintiffs "multiple
bites at the apple" and making lead agencies responsible for
determining who the "real parties in interest" are. AB 320 is
specifically designed to ensure that all necessary parties are
properly named in a lawsuit so a plaintiff will only need "one
bite at the apple" to have his/her case judged on the merits.
Additionally, since lead agencies are the most appropriate party
to determine who is in a receipt of its approval, it seems
reasonable and non-burdensome that they include this information
to the public in the NOD and NOE.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092