Amended in Assembly March 11, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 515

Introduced by Assembly Member Dickinson

February 20, 2013

An act begin delete to amend Section 38 of, and to add Chapter 5.2 (commencing with Section 101) to Title 1 of Part 1 of, the Code of Civil Procedure, and end delete to amend Sections 21167.1, begin insert 21167.8, end insert begin delete 21167.9, and end delete 21168.9 begin insert , and 21177 end insert of, and to add Sections begin delete 21060.2 end delete begin insert 21166.5 end insert and 21167.15 to, the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL’S DIGEST

AB 515, as amended, Dickinson. Environmental quality: California Environmental Quality Act: judicial review.

The California Constitution vests the judicial power of the state in the Supreme Court, the courts of appeal, and the superior courts. Existing law establishes a superior court of one or more judges in each county and provides that the superior courts have original jurisdiction, except as provided in the Constitution. Existing law requires the presiding judge of each superior court to distribute the business of the court among the judges, and to prescribe the order of business, subject to the rules of the Judicial Council.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in 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. CEQA establishes a judicial review of determinations made by a public agency pursuant to CEQA and requires actions or proceedings brought pursuant to CEQA to be given preference over all other civil actions by a trial court. Existing law requires the superior courts in all counties with a population of more than 200,000 to designate one or more judges to develop expertise in CEQA and related land use and environmental laws, so that those judges will be available to hear, and quickly resolve, actions or proceedings brought pursuant to CEQA. If the court finds that a determination made by a public agency pursuant to CEQA violates the requirements of CEQA, CEQA requires the court to issue an order, in the form of a peremptory writ of mandate, specifying what action by the public agency is necessary to comply with CEQA.

This bill would begin delete provide for at least 2 end delete begin insert establish a end insert CEQA compliance begin delete court districts within the state, with the appropriate boundaries for the districts and locations for seating CEQA compliance courts to be determined by rule of court. The bill would establish a CEQA compliance court in every district, consisting of at least 3 judges. The bill would require the Governor to appoint judges to the CEQA compliance court based upon their expertise in CEQA and related land use and environmental laws end delete begin insert division of the superior court in a county in which the Attorney General maintains an office and would vest the division with original jurisdiction over actions of proceedings brought pursuant to CEQA and joined matters related to land use and environmental laws. The bill would require the Judicial Council to adopt rules for establishing, among other things, protocol to govern the administration and efficient operation of the division end insert , so that those judges begin insert assigned to the division end insert will be able to hear and quickly resolve those actions or proceedings. begin delete The bill would require the Chief Justice of California to designate one of the judges of each CEQA compliance court district as the presiding judge of that district. The bill would give the CEQA compliance court jurisdiction over actions or proceedings involving CEQA, as well as joined matters involving related land use and environmental laws. end delete The bill would provide that decisions of the CEQA compliance begin insert division of the superior end insert court may be begin delete appealed only to the Supreme Court end delete begin insert reviewed by way of a petition for an extraordinary writ end insert . The bill would require the CEQA compliance begin delete court end delete begin insert division end insert to issue a preliminary decision before the opportunity for oral argument is granted. If the CEQA compliance begin insert division of the superior end insert court finds that a determination of a public agency violated CEQA, the bill would require begin delete that end delete the begin delete court end delete begin insert court’s end insert order begin insert to end insert specify what action taken by the public agency was in error begin insert and what specific action by the public agency end insert begin insert is necessary to comply with CEQA. The bill would prohibit an action or proceeding pursuant to CEQA from being brought unless the alleged grounds of noncompliance were presented to the public agency with enough specificity that the public agency could reasonably respond to the alleged violation. The bill would prohibit a person from maintaining an action or proceeding pursuant to CEQA unless that person objected during the administrative process with specificity as to how the public agency’s response to the alleged violation is inadequate end insert .

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 21166.5 is added to the end insert begin insert Public Resources
Code end insert begin insert , to read: end insert

begin insert

begin insert 21166.5. end insert   

(a) There shall be a CEQA compliance division of
the superior court in a county in which the Attorney General
maintains an office.

(b) The CEQA compliance division shall have original
jurisdiction over actions or proceedings brought pursuant to this
division, as well as other matters related to land use and
environmental laws that may be joined with those actions or
proceedings.

(c) The judicial council shall adopt rules that do all of the
following:

(1) Establish standards for determining the appropriate superior
court with a CEQA compliance division in which an action or
proceeding brought pursuant to Section 21167, 21168, or 21168.5
may be filed.

(2) Establish protocol to govern the administration and efficient
operation of the CEQA compliance division to accomplish the
goals of Section 21167.1.

(3) Establish appropriate qualifications for the assignment of
judges to the CEQA compliance division based on the knowledge
and education of a judge in this division.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 21167.1 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

21167.1.  

(a) In all actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5, including the hearing of an
action or proceeding on appeal from a decision of a lower court,
all courts in which the action or proceeding is pending shall give
the action or proceeding preference over all other civil actions, in
the matter of setting the action or proceeding for hearing or trial,
and in hearing or trying the action or proceeding, so that the action
or proceeding shall be quickly heard and determined. The court
shall regulate the briefing schedule so that, to the extent feasible,
the court shall commence hearings on an appeal within one year
of the date of the filing of the appeal.

(b) To ensure that actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5 may be quickly heard and
determined begin delete in the lower courts, the superior courts in all counties
with a population of more than 200,000 shall designate one or
more end delete begin insert by end insert judges begin delete to develop end delete begin insert with end insert expertise in this division and related
land use and environmental laws, begin delete so that those judges will be
available to hear, and quickly resolve, end delete actions or proceedings
brought pursuant to Sections 21167, 21168, and 21168.5 begin insert shall be
heard by the CEQA compliance division of an appropriate superior
court, as determined by rules developed pursuant to subdivision
(c) of Section 21166.5 end insert .

(c) In an action or proceeding filed pursuant to this chapter that
is joined with any other cause of action, the court, upon a motion
by any party, may grant severance of the actions. In determining
whether to grant severance, the court shall consider such matters
as judicial economy, administrative economy, and prejudice to
any party.

begin insert

(d) Notwithstanding any other law, review of the decision of
the CEQA compliance division of the superior court shall be
pursuant to a petition for an extraordinary writ.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 21167.8 of the end insert begin insert Public Resources Code end insert begin insert , as
amended by Section 7 of Chapter 496 of the Statutes of 2010, is
amended to read: end insert

21167.8.  

(a) 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. The meeting shall be
scheduled and held not later than 45 days from the date of service
of the petition or complaint upon the public agency. The notice of
the settlement meeting shall be served by mail upon the counsel
for each party. If the public agency does not know the identity of
counsel for a party, the notice shall be served by mail upon the
party for whom counsel is not known.

(b) At the time and place specified in the notice filed with the
court, the parties shall meet and confer regarding anticipated issues
to be raised in the litigation and shall attempt in good faith to settle
the litigation and the dispute that forms the basis of the litigation.
The settlement meeting discussions shall be comprehensive in
nature and shall focus on the legal issues raised by the parties
concerning the project that is the subject of the litigation.

(c) The settlement meeting may be continued from time to time
without postponing or otherwise delaying other applicable time
limits in the litigation. The settlement meeting, or a mediation
proceeding that is conducted pursuant to Chapter 9.3 (commencing
with Section 66030) of Division 1 of Title 7 of the Government
Code, is intended to be conducted concurrently with any judicial
proceedings.

(d) If the litigation is not settled, the court, in its discretion, may,
or at the request of a party, shall, schedule a further settlement
conference before a judge of the begin delete superior court. If the petition or
complaint is later heard on its merits, the judge hearing the matter
shall not be the same judge conducting the settlement conference,
except in counties that have only one judge of the superior court end delete
begin insert CEQA compliance division end insert .

(e) The failure of a party, who was notified pursuant to
subdivision (a), to participate in the litigation settlement process,
without good cause, may result in an imposition of sanctions by
the court.

(f) Not later than 30 days from the date that notice of
certification of the record of proceedings was filed and served in
accordance with Section 21167.6, the petitioner or plaintiff shall
file and serve on all other parties a statement of issues that the
petitioner or plaintiff intends to raise in a brief or at a hearing or
trial. Not later than 10 days from the date on which the respondent
or real party in interest has been served with the statement of issues
from the petitioner or plaintiff, each respondent and real party in
interest shall file and serve on all other parties a statement of issues
which that party intends to raise in a brief or at a hearing or trial.

(g) This section shall remain in effect only until January 1, 2016,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2016, deletes or extends that date.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 21167.8 of the end insert begin insert Public Resources Code end insert begin insert , as
added by Section 8 of Chapter 496 of the Statutes of 2010, is
amended to read: end insert

21167.8.  

(a) 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. The meeting shall be
scheduled and held not later than 45 days from the date of service
of the petition or complaint upon the public agency. The notice of
the settlement meeting shall be served by mail upon the counsel
for each party. If the public agency does not know the identity of
counsel for any party, the notice shall be served by mail upon the
party for whom counsel is not known.

(b) At the time and place specified in the notice filed with the
court, the parties shall meet and confer regarding anticipated issues
to be raised in the litigation and shall attempt in good faith to settle
the litigation and the dispute which forms the basis of the litigation.
The settlement meeting discussions shall be comprehensive in
nature and shall focus on the legal issues raised by the parties
concerning the project that is the subject of the litigation.

(c) The settlement meeting may be continued from time to time
without postponing or otherwise delaying other applicable time
limits in the litigation. The settlement meeting is intended to be
conducted concurrently with any judicial proceedings.

(d) If the litigation is not settled, the court, in its discretion, may,
or at the request of any party, shall, schedule a further settlement
conference before a judge of the begin delete superior court. If the petition or
complaint is later heard on its merits, the judge hearing the matter
shall not be the same judge conducting the settlement conference,
except in counties that have only one judge of the superior court end delete
begin insert CEQA compliance division end insert .

(e) The failure of any party, who was notified pursuant to
subdivision (a), to participate in the litigation settlement process,
without good cause, may result in an imposition of sanctions by
the court.

(f) Not later than 30 days from the date that notice of
certification of the record of proceedings was filed and served in
accordance with Section 21167.6, the petitioner or plaintiff shall
file and serve on all other parties a statement of issues which the
petitioner or plaintiff intends to raise in any brief or at any hearing
or trial. Not later than 10 days from the date on which the
respondent or real party in interest has been served with the
statement of issues from the petitioner or plaintiff, each respondent
and real party in interest shall file and serve on all other parties a
statement of issues which that party intends to raise in any brief
or at any hearing or trial.

(g) This section shall become operative on January 1, 2016.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 21167.15 is added to the end insert begin insert Public Resources
Code end insert begin insert , immediately following Section 24167.10, to read: end insert

begin insert

begin insert 21167.15. end insert   

To ensure the efficient use of the court’s time and
a focused discussion of the issues at oral arguments, the CEQA
compliance division of the superior court shall first issue a
preliminary decision before the opportunity for oral argument is
granted.

end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 21168.9 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

21168.9.  

(a) If a court finds, as a result of a trial, hearing, or
remand from an appellate court, that any determination, finding,
or decision of a public agency has been made without compliance
with this division, the court shall enter an order that includes one
or more of the following:

(1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part.

(2) If the court finds that a specific project activity or activities
will prejudice the consideration or implementation of particular
mitigation measures or alternatives to the project, a mandate that
the public agency and any real parties in interest suspend any or
all specific project activity or activities, pursuant to the
determination, finding, or decision, that could result in an adverse
change or alteration to the physical environment, until the public
agency has taken any actions that may be necessary to bring the
determination, finding, or decision into compliance with this
division.

(3) A mandate that the public agency take specific action as
may be necessary to bring the determination, finding, or decision
into compliance with this division.

(b)  begin delete Any end delete begin insert An end insert order pursuant to subdivision (a) shall include only
those mandates begin delete which end delete begin insert that end insert are necessary to achieve compliance
with this division and only those specific project activities in
noncompliance with this division. The order shall be made by the
issuance of a peremptory writ of mandate specifying begin insert what actions
were in error and end insert what begin insert specific end insert action by the public agency is
necessary to comply with this division. However, the order shall
be limited to that portion of a determination, finding, or decision
or the specific project activity or activities found to be in
noncompliance only if a court finds that (1) the portion or specific
project activity or activities are severable, (2) severance will not
prejudice complete and full compliance with this division, and (3)
the court has not found the remainder of the project to be in
noncompliance with this division. The begin delete trial end delete begin insert CEQA compliance
division of the superior end insert court shall retain jurisdiction over the
public agency’s proceedings by way of a return to the peremptory
writ until the court has determined that the public agency has
complied with this division.

(c) Nothing in this section authorizes a court to direct any public
agency to exercise its discretion in any particular way. Except as
expressly provided in this section, nothing in this section is
intended to limit the equitable powers of the court.

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 21177 of the end insert begin insert Public Resources Code end insert begin insert , as
amended by Section 11 of Chapter 496 of the Statutes of 2010, is
amended to read: end insert

21177.  

(a) An action or proceeding shall not be brought
pursuant to Section 21167 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 begin insert with enough specificity that the public agency
could reasonably respond to the alleged violation end insert .

(b) 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 the notice of determination pursuant to Sections 21108
and 21152.

begin insert

(c) A person shall not maintain an action or proceeding unless
the person objected during the administrative process with
specificity as to how the public agency’s response to the alleged
violation is inadequate under this division.

end insert begin delete

(c)

end delete

begin insert (d) end insert  This section does not preclude any organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivisions (a) and (b). The grounds for noncompliance may have
been presented directly by a member or by a member agreeing
with or supporting the comments of another person.

begin delete

(d)

end delete

begin insert (e) end insert  This section does not apply to the Attorney General.

begin delete

(e)

end delete

begin insert (f) end insert  This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise
those objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.

begin delete

(f)

end delete

begin insert (g) end insert  This section shall remain in effect only until January 1, 2016,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2016, deletes or extends that date.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 21177 of the end insert begin insert Public Resources Code end insert begin insert , as added
by Section 12 of Chapter 496 of the Statutes of 2010, is amended
to read: end insert

21177.  

(a) An action or proceeding shall not be brought
pursuant to Section 21167 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 begin insert with enough specificity that the public agency
could reasonably respond to the alleged violation end insert .

(b) 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.

begin insert

(c) A person shall not maintain an action or proceeding unless
the person objected during the administrative process with
specificity as to how the public agency’s response to the alleged
violation is inadequate under this division.

end insert begin delete

(c)

end delete

begin insert (d) end insert  This section does not preclude any organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivision (b).

begin delete

(d)

end delete

begin insert (e) end insert  This section does not apply to the Attorney General.

begin delete

(e)

end delete

begin insert (f) end insert  This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise
those objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.

begin delete

(f)

end delete

begin insert (g) end insert  This section shall become operative on January 1, 2016.

begin delete

SECTION 1.  

Section 38 of the Code of Civil Procedure is
amended to read:

38.  

Unless the provision or context otherwise requires, a
reference in a statute to a judicial district means:

(a) As it relates to a court of appeal, the court of appeal district.

(b) As it relates to a superior court, the county.

(c) As it relates to a CEQA compliance court, the CEQA court
district.

SEC. 2.  

Chapter 5.2 (commencing with Section 101) is added
to Title 1 of Part 1 of the Code of Civil Procedure, to read:

 

Chapter  5.2. Environmental Court

 

101.  

For the purposes of this chapter, “CEQA” means the
California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code).

102.  

(a) There shall be at least two CEQA compliance court
districts within the state. The appropriate boundaries for the
districts and locations for seating CEQA compliance courts shall
be determined by rule of court.

(b) In every district there is a CEQA compliance court, which
shall consist of at least three judges. The Governor shall appoint
judges to the CEQA compliance court based upon their expertise
in CEQA and related land use and environmental laws, so that
those judges will be able to hear and quickly resolve those actions
or proceedings. The Chief Justice of California shall designate one
of the judges of each CEQA compliance court district as the
presiding judge of that district.

103.  

(a) In each district, no more than three judges shall
participate in a hearing or decision. The presiding judge of the
district shall designate the three judges who shall participate.

(b) The concurrence of two judges of the CEQA court is
necessary to render the decision in every case, and to transact any
other business except business that may be done at chambers by
the presiding judge of the district. The presiding judge shall also
supervise its business and transact any business that may be done
at chambers.

(c) The CEQA compliance court shall have jurisdiction over
actions or proceedings involving CEQA, as well as joined matters
involving related land use and environmental laws.

(d) Notwithstanding any other law, the decisions of the CEQA
compliance court may be appealed only to the Supreme Court.

(e) Except as otherwise provided in this article, the law generally
applicable to civil actions shall apply to actions subject to this
article.

104.  

(a) The presiding judge shall convene the CEQA court
when necessary.

(b) The CEQA compliance court may transact business at any
time. Adjournments from day to day, or from time to time, are to
be construed as recesses in the sessions, and shall not prevent the
CEQA compliance court from sitting at any time.

SEC. 3.  

Section 21060.2 is added to the Public Resources Code,
to read:

21060.2.  

“CEQA compliance court” means the court
established pursuant to Chapter 5.2 (commencing with Section
101) of Title 1 of Part 1 of the Code of Civil Procedure.

SEC. 4.  

Section 21167.1 of the Public Resources Code is amended
to read:

21167.1.  

(a) In all actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5, including the hearing of an
action or proceeding on appeal from a decision of a lower court,
all courts in which the action or proceeding is pending shall give
the action or proceeding preference over all other civil actions, in
the matter of setting the action or proceeding for hearing or trial,
and in hearing or trying the action or proceeding, so that the action
or proceeding shall be quickly heard and determined. The court
shall regulate the briefing schedule so that, to the extent feasible,
the court shall commence hearings on an appeal within one year
of the date of the filing of the appeal.

(b) To ensure that actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5 may be quickly heard and
determined by judges with expertise in this division and related
land use and environmental laws, actions or proceedings brought
pursuant to Sections 21167, 21168, and 21168.5 shall be heard by
the CEQA compliance court.

(c) In an action or proceeding filed pursuant to this chapter that
is joined with any other cause of action, the court, upon a motion
by any party, may grant severance of the actions. In determining
whether to grant severance, the court shall consider such matters
as judicial economy, administrative economy, and prejudice to
any party.

SEC. 5.  

Section 21167.9 of the Public Resources Code is
amended to read:

21167.9.  

An action brought in the CEQA compliance court
relating to this division may be subject to a mediation proceeding
conducted pursuant to Chapter 9.3 (commencing with Section
66030) of Division 1 of Title 7 of the Government Code.

SEC. 6.  

Section 21167.15 is added to the Public Resources
Code, to read:

21167.15.  

To ensure the efficient use of the court’s time and
a focused discussion of the issues at oral arguments, the CEQA
compliance court shall first issue a preliminary decision before
the opportunity for oral argument is granted.

SEC. 7.  

Section 21168.9 of the Public Resources Code is
amended to read:

21168.9.  

(a) If the CEQA compliance court finds, as a result
of a trial, hearing, or remand from the Supreme Court, that a
determination, finding, or decision of a public agency has been
made without compliance with this division, the court shall enter
an order that includes one or more of the following:

(1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part.

(2) If the CEQA compliance court finds that a specific project
activity or activities will prejudice the consideration or
implementation of particular mitigation measures or alternatives
to the project, a mandate that the public agency and any real parties
in interest suspend any or all specific project activity or activities,
pursuant to the determination, finding, or decision, that could result
in an adverse change or alteration to the physical environment,
until the public agency has taken any actions that may be necessary
to bring the determination, finding, or decision into compliance
with this division.

(3) A mandate that the public agency take specific action as
may be necessary to bring the determination, finding, or decision
into compliance with this division.

(b) An order pursuant to subdivision (a) shall include only those
mandates which are necessary to achieve compliance with this
division and only those specific project activities in noncompliance
with this division. The order shall be made by the issuance of a
peremptory writ of mandate specifying what action was in error
and what specific action by the public agency is necessary to
comply with this division. However, the order shall be limited to
that portion of a determination, finding, or decision or the specific
project activity or activities found to be in noncompliance only if
a court finds that (1) the portion or specific project activity or
activities are severable, (2) severance will not prejudice complete
and full compliance with this division, and (3) the court has not
found the remainder of the project to be in noncompliance with
this division. The CEQA compliance court shall retain jurisdiction
over the public agency’s proceedings by way of a return to the
peremptory writ until the court has determined that the public
agency has complied with this division.

(c) This section does not authorize the CEQA compliance court
to direct a public agency to exercise its discretion in any particular
way. Except as expressly provided in this section, this section is
not intended to limit the equitable powers of the court.

end delete