BILL ANALYSIS Ó
AB 320
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Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 320 (Hill) - As Amended: April 12, 2011
Policy Committee: Natural
ResourcesVote:6-3
Judiciary 6-4
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill requires a California Environmental Quality Act (CEQA)
lead agency to identify the recipient of the agency's approval
in its notice of determination or exemption and designates that
recipient as a "real party in interest." Specifically, this
bill:
1)Requires the lead agency to identify the recipient or
recipients of the agency's approval in its notice of
determination or exemption.
2)Provides that the recipient of project approval identified by
the lead agency is a real party in interest that a petitioner
or plaintiff must name, and serve, in its petition or
complaint.
3)Provides that the petition or complaint is subject to
dismissal if the petitioner or plaintiff fails to serve any
recipient of approval within the statute of limitations
period.
4)Provides that the bill's revisions apply only to public agency
decisions for which a notice was filed on or before December
31, 2011.
FISCAL EFFECT
Negligible costs.
COMMENTS
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1)Rationale . A "real party in interest" is a person affected by
litigation other than the plaintiff or the defendant.
Equitable principles, reflected in the "indispensable party
rule," seek to assure that a person who will actually be
affected by litigation is adequately notified so he or she can
participate in the litigation. CEQA's judicial review
procedures specify which persons are indispensable parties and
must be named and served in litigation.
To prevent important cases from being dismissed, petitioners
in CEQA lawsuits are forced to over-name and serve parties who
might be considered indispensable to ensure they have not
missed anyone. The author contends that this over-naming
burdens not only petitioners, but also those who have been
named as real parties in interest by the petitioners out of
caution.
The author intends to remedy this situation by (a) requiring
the lead agency to name the recipients of the lead agency's
notice of CEQA determination or exemption, and (b) specifying
that the recipient of project approval identified by the lead
agency is the real party in interest that a petitioner or
plaintiff must name, and serve, in its petition or complaint.
2)Background. Adopted in 1970 and incorporated in the Public
Resources Code §§21000-21177, the California Environmental
Quality Act (CEQA) applies to projects undertaken, funded or
requiring an issuance of a permit by a public agency. CEQA
requires a lead agency, the principal public agency ensuring
CEQA compliance, to prepare an analysis of a project that may
have a significant effect on the environment. The analysis of
a project usually takes the form of an Environmental Impact
Report, Environmental Impact Statement, Negative Declaration,
or Environmental Assessment.
CEQA also requires the lead agency to file a notice of
approval or a notice of determination containing specified
information with the Office of Planning Research or the county
clerk of each county in which the project is located. CEQA
provides the procedure by which a party may file a lawsuit
against the continuance of a project thought to harm the
environment. In order to file a lawsuit, however, the party
must name all the individuals involved in the project for the
suit to withstand dismissal.
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As recently declared by the Court of Appeal in County of
Imperial v. Superior Court (2007) 152 Cal. App. 4th 13, any
person who, years after project approval, claims to be a
recipient of approval can be considered an "indispensable
party" and therefore required to be named in a CEQA lawsuit.
However, a CEQA lawsuit must be brought within 30 days of
project approval, and failure to name all indispensable
parties within that 30-day period results in categorical
dismissal of the lawsuit. The court upheld the dismissal of
this lawsuit even though the party not named had asserted in
both the administrative proceeding and in court that it did
not need the approval in question and did not claim to be
"indispensable."
3)Related Legislation.
a) AB 499 (Hill, 2010), substantially identical to this
bill, passed the Assembly 49-28 and the Senate 22-15 but
was vetoed by the governor, who cited concerns about
burdening lead agencies and complicating the CEQA
litigation process.
b) SB 68 (Kuehl, 2008), similar to this bill, passed
the Assembly 46-32 but was later vetoed.
c) AB 2814 (Simitian) Chapter 522, Statutes of 2004,
provided that failure to name potential parties, other
than the recipient of an approval, is not grounds for
dismissal.
d) SB 1393 (Kuehl) Chapter 1121, Statutes of 2002,
revised CEQA in several ways, including requirements for
naming a real party in interest, serving the petition or
complaint, and providing certain agencies with notice of
the action or proceeding. This provision also provides
that failure to name potential parties, other than those
specified is not grounds for dismissal.
1)Support. This bill is supported by the Imperial County Board
of Supervisors and numerous conservation and environmental
advocacy groups that often are parties of interest to CEQA
legal proceedings and who want to ensure their ability to
participate in those proceedings.
2)Opposition . This bill is opposed by the American Council of
Engineering Companies of California, who claim the bill
unfairly shifts to the public agency the burden of identifying
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real parties in interest to a CEQA proceeding and will
diminish the ability of real interested parties to participate
in CEQA proceedings.
Analysis Prepared by : Jay Dickenson / APPR. / (916) 319-2081