BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 123 (Corbett)
As Amended April 4, 2013
Hearing Date: April 16, 2013
Fiscal: Yes
Urgency: No
BCP
SUBJECT
Environmental and land use court
DESCRIPTION
This bill would require the Judicial Council to direct the
creation of an environmental land use division within two or
more superior courts within each of the appellate districts of
the state to process civil proceedings brought pursuant to the
California Environmental Quality Act or in specified subject
areas, including air quality, biological resources, climate
change, hazards and hazardous materials, land use planning, and
water quality.
This bill would require the Judicial Council, by rule of court,
to identify statutes in those specified areas that would be
within the jurisdiction of the environmental and land use court
division.
This bill would require the Judicial Council to establish, by
rule of court, appropriate standards and protocols for the
environmental and land use court division to accomplish the
objectives of consistency, expediency, and expertise, including
educational requirements and other qualifications for
specialized judges assigned to the division.
BACKGROUND
Enacted in 1970, the California Environmental Quality Act (CEQA)
requires state and local agencies to follow a set protocol to
disclose and evaluate the significant environmental impacts of
(more)
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proposed projects and adopt feasible measures to mitigate those
impacts. CEQA itself applies to "projects" undertaken or
requiring approval by state and local agencies, and, if more
than one agency is involved, CEQA requires one of the agencies
to be the "lead agency." The subsequent environmental review
process required by CEQA consists of: (1) determining if the
activity is a project; (2) determining if the project is exempt
from CEQA; and (3) performing an initial study to identify the
environmental impacts and, depending on the findings, prepare a
Negative Declaration (no significant impacts), Mitigated
Negative Declaration (significant impacts but project is revised
to avoid or mitigate those impacts), or an Environmental Impact
Report (significant impacts).
To enforce the requirements of CEQA, a civil action may be
brought under several code sections to attack, review, set
aside, void or annul the acts or decisions of a public agency
for noncompliance with CEQA. Superior courts in all counties
with a population of more than 200,000 are required to designate
one or more judges to develop expertise in CEQA so that they
will be available to hear and quickly resolve CEQA actions
(which are given preference over all other civil actions).
(Pub. Res. Code Sec. 21167.1.)
In order to further expedite those proceedings and provide more
consistent rulings, this bill seeks to create at least twelve
environmental and land use divisions within the superior courts
to hear cases relating to CEQA, the environment, and land use.
This proposed creation of an environmental and land use court is
similar in concept to other environmental courts and tribunals
(ECTs), which are becoming increasingly common around the world.
In fact, a 2009 report published by the Access Initative of the
World Resources Institute entitled Greening Justice: Creating
and Improving Environmental Courts and Tribunals found over 350
ECTs in 41 different countries. That report further noted:
Environmental Courts and Tribunals are a species of
specialized courts and tribunals. Specialized courts,
tribunals, and judges are not new and have existed in
ancient and modern times. For example, in ancient Rome the
Praetor Urbanus adjudicated disputes between Roman citizens
while the Praetor Peregrinus adjudicated disputes between
foreigners (in Latin peregrini) and Roman citizens.
Ecclesiastical courts in Europe specialized in claims
against or by priests. In . . . Sri Lanka, the Dutch
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colonial government established Land Raads in the 17th
century - courts specializing in adjudicating land disputes.
Modern examples of specialized courts and tribunals are
workmen's compensation tribunals, landlord-tenant tribunals,
tax courts, commercial courts, labor tribunals,
anti-discrimination commissions, tribunals dealing with
compensation for victims of crime, planning commissions, and
electricity tribunals. . . . [T]he authors have identified
the value of establishing specialized tribunals [including]
efficiency and speed in the disposal of cases, harnessing
expertise relevant to the specialized field, reducing the
costs of dispute resolution, uniformity of decision-making,
visibility for the subject area, integrating related issues
and remedies, and increasing public participation and
confidence. (Pring & Pring, The Access Initiative, Greening
Justice: Creating and Improving Environmental Courts and
Tribunals (2009)
[as of Apr. 11,
2013], at p. xi.)
Accordingly, this bill would require the Judicial Council to
direct the creation of an environmental and land use division in
at least twelve superior courts in order to process civil
proceedings brought pursuant to either CEQA or one of six
specified environmental and land use subject areas. The bill
would additionally direct the Judicial Council to establish
appropriate standards and protocols for the division.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, vests judicial power
of this State in the Supreme Court, courts of appeal, and
superior courts. (Cal. Const., art. VI, Sec. 1.)
Existing law , the California Constitution, requires the
Legislature to divide the State into districts each containing a
court of appeal with one or more divisions. (Cal. Const., art.
VI, Sec. 3.) The Constitution further requires a superior court
of one or more judges to be in each county, and provides that in
each superior court there is an appellate division. (Cal.
Const., art. VI, Sec. 4.)
Existing law requires the judges of each superior court having
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three or more judges to choose a presiding judge, and, subject
to the rules of the Judicial Council, the presiding judge is
required to distribute the business of the court among the
judges, and prescribe the order of business. (Gov. Code Sec.
69508.)
This bill would require the Judicial Council to direct the
creation of an environmental and land use division within two or
more superior courts within each of the appellate districts of
the state to process the following civil proceedings:
Civil proceedings brought pursuant to the California
Environmental Quality Act (CEQA); and
Civil proceedings brought in any of the following subject
areas: air quality, biological resources, climate change,
hazards and hazardous materials, land use planning, and water
quality.
This bill would require the Judicial Council, by rule of court,
to identify those statutes within the above enumerated subject
areas that are within the jurisdiction of the environmental and
land use court division.
This bill would permit a civil proceeding that would be subject
to the proposed environmental and land use court to be filed at
a superior court within the county in which the claim arises,
but require the civil proceeding to be transferred to the
nearest superior court within the same appellate district that
has established an environmental and land use division.
This bill would require the Judicial Council, by rule of court,
to establish appropriate standards and protocols for the
environmental and land use court division to accomplish the
objectives of consistency, expediency, and expertise, including
educational requirements and other qualifications for
specialized judges assigned to the division.
This bill would codify various findings and declarations
relating to: (1) the prevalence of courts specializing in
environmental issues; (2) the complex nature of environmental
issues; (3) that environmental land use court cases should be
decided by specialized judges trained in environmental and land
use law; (4) the importance of an unbiased judicial selection
process; and (5) that the creation of an environmental and land
use court can maximize judicial competence and the speed of
decision making.
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This bill would codify the intent of the Legislature to
establish an environmental and land use division to expedite
civil proceedings within the jurisdiction of the division, with
more consistent rulings and better outcomes for all parties of
interest.
COMMENT
1. Stated need for the bill
According to the author:
The expertise required and increased complexity of the
issues in environmental and land-use laws has put a burden
on the court system which has led to significant delays in
ruling on cases, and an increase in inconsistent rulings and
unpredictability. The delays and uncertainty can have a
detrimental impact on the viability of development projects
that would otherwise be welcomed by the local jurisdictions
by creating new jobs and economic opportunity.
[. . .]
This bill would create a new specialty court division with
jurisdiction over [claims under the California Environmental
Quality Act (CEQA)] and other related land use and
environmental claims as defined in the bill and authorizes
the Judicial Council to establish appropriate standards and
protocols to determine which claims will be heard within the
division consistent with the bill and the qualifications
required for judges that will be assigned to this new
division.
The author further notes that "[w]hile new to California, this
idea has already been implemented to varying degrees in 13
other states, including Washington, Vermont, Colorado, Georgia
and Mississippi. Given California's diverse and complex
environment, a well-designed court system that promotes
efficiency and expertise would be an asset, as well."
2. Establishment of an environmental and land use division
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This bill would require the Judicial Council<1> to direct the
creation of an environmental and land use division within two or
more superior courts of each of the appellate districts. Given
that there are currently six appellate districts, that direction
would result in environmental and land use divisions in at least
12 of the 58 counties in this state that would hear actions
brought pursuant to either CEQA or one of six enumerated subject
areas, as identified by the Judicial Council. When a civil
proceeding is filed in a superior court that is within the
jurisdiction of the environmental and land use division, the
proceeding must be transferred to the nearest superior court
within the same appellate district that has established an
environmental and land use division.
3. Goal of consistent rulings and better outcomes for CEQA and
environmental and land use cases
Pursuant to this bill, CEQA actions would be within the
jurisdiction of the environmental and land use division and be
heard by specialized judges who have met the educational
requirements and satisfied other qualifications to be determined
by the Judicial Council. As a result, the stated goal of moving
those cases is to provide more consistent rulings and better
outcomes for all parties. In further support of the need for
consistency, the author notes:
Recent examples such as the holdings in Sunnyvale West
Neighborhood Ass'n v. Sunnyvale (2010) 190 Cal.App.4th 1351,
Madera Oversight Coalition, Inc. v. County of Madera (2011)
199 Cal.App.4th 48, and Neighbors for Smart Rail v.
Exposition Metro Line Construction Authority (2012) 205
Cal.App.4th 552, with their varying approaches to a proper
baseline for impact analyses are illustrative of the
unpredictable nature of this complex area of law. Another
example is the holding in Ballona Wetlands Land Trust v.
City of Los Angeles (2011) 201 Cal.App.4th 455, finding that
there is no requirement to analyze the impact of the
environment on the project itself, in contradiction to the
longstanding questions in CEQA Guidelines Appendix G asking
agencies to consider those impacts.
In addition to CEQA actions, the environmental and land use
---------------------------
<1> The Judicial Council of California is the policymaking body
of the courts and regretfully opposes SB 123 for the reasons
stated below.
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division could have jurisdiction over civil proceedings in any
of the following subject areas: air quality, biological
resources, climate change, hazards and hazardous materials, land
use planning, and water quality. The Judicial Council, by rule
of court, would be required to identify the statutes within the
above areas that are within the jurisdiction of the
environmental and land use division.
From a policy standpoint, uniformity in judicial decisions
arguably creates confidence in the judicial system by reducing
the likelihood that a decision is perceived as arbitrary and,
potentially, reducing the number of appeals. Despite the
benefits of uniformity, it should be noted that there are limits
to action that the Legislature may take to promote uniformity in
court decisions due to the separation of powers and the strong
policy of ensuring an independent Judicial Branch.
4. Access to justice
Access to justice is a vital part of our democracy because it
allows aggrieved individuals to protect their rights,
obligations and responsibilities. Specific to environmental
courts and tribunals, the above-cited report found that access
to justice: " . . . strengthens freedom of information,
allowing civil society to press governments for information they
were otherwise denied[, and] allows citizens the means to ensure
that they participate meaningfully and are appropriately
included in decisionmaking on environmental matters. Access to
justice also levels the playing field by empowering groups that
may not have influence in the legislative process or may not
have the ear of government ministries to seek redress in the
courts and other forums. Finally access to justice increases the
public's ability to seek redress and remedy for environmental
harm." (Pring & Pring, The Access Initiative, Greening Justice:
Creating and Improving Environmental Courts and Tribunals (2009)
[as of
Apr. 11, 2013], at p. xi.)
While the stated goal of this bill is to provide more consistent
rulings and better outcomes for all parties of interest, as a
matter of public policy, it is important to ensure that the new
environmental and land use divisions are set up in a way that
effectuates that intent. The opposition raises several concerns,
discussed below, about the impact of requiring the transfer of
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actions to the new division and the overall impact on the
court's ability to provide access to justice.
a. Transfer of actions to nearest division
As noted above, this bill would allow civil proceedings
subject to the new environmental and land use divisions to be
filed in any superior court, but, would provide that the
proceeding shall be transferred to the nearest superior court
within the same appellate district that has established an
environmental and land use division.
Staff notes that the Judicial Council has broad discretion to
determine which non-CEQA environmental and land use actions
would be required to be heard by the new division. Given that
discretion, it is important that any actions identified by the
Judicial Council as being within the jurisdiction of the new
division are ones that are unlikely to impose a significant
burden on the plaintiff should the action be transferred to a
nearby county where the environmental and land use division is
located. For example, if a sick homeowner discovers that a
nearby factory has contaminated their well and they want to
bring an action for relief - the policy question that arises
is whether it would be appropriate to move that action to the
proposed environmental and land use division. One the one
hand, moving the case may make it impossible for the homeowner
to continue to pursue the action if the homeowner must travel
a great distance to the assigned court, but, that transfer may
also move the action to a court with specific expertise in the
issue. The Rural Counties Representatives of California
(RCRC), in opposition, further asserts:
While SB 123 may be well intended, and there may be
advantages to having CEQA and land use cases handled by
well-trained specialist judges, the provisions of SB 123
would require many rural local governments to litigate
cases in a distant urban venue, placing small rural
counties at a distinct disadvantage. SB 123 would
increase litigation costs for those rural counties
located far from the appellate district superior court
with an environmental land use division, and may well
force some counties to rely more heavily on costly
outside counsel.
RCRC further contends that covered cases are best dealt with
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by local judges because the "local decisions involve local
agency discretion and require both judicial deference and an
understanding of the community sensibilities underlying the
decisions." Similarly, the Judicial Council, in opposition,
expresses concern about potentially depriving parties of the
ability to have their case heard locally.
b. Impact on courts
While some of the opponents do acknowledge the potential
benefits of creating an environmental and land use division,
all of the opponents express concerns about the impact of this
bill on California's court system. As background, over the
past five years, California's judicial branch has experienced
ongoing budget reductions of $535 million and has diverted
around $1 billion in courthouse construction funds to support
court operations. (Cal. Courts, Fact Check: Judicial Branch
Budget and Proposals for Fiscal Year 2013-2014 (Feb. 2013)
[as of Apr. 11, 2013].)
Those catastrophic budget reductions have crippled
California's court system by, among other things, forcing the
closure of courts, self-help centers and delaying access to
justice for a large number of Californians.
The California Judges Association, in opposition, states that
while they "understand the need for the prompt and fair
resolution of environmental and land use disputes, the
California Judges Association is very concerned about the
creation of any new specialty courts in the current fiscal
environment." The California Chamber of Commerce, Associated
Builders and Contractors of California, American Council of
Engineering Companies, California, and the California
Manufacturers and Technology Association, in opposition,
express concern that:
SB 123 will divert valuable resources from existing
courts to run this new land-use division. A new court
division would require new infrastructure and overhead
costs that would divert resources, even if courts ended
up with a lighter case-load. More importantly, though,
even if a funding mechanism were provided to make up for
this, the California Courts have sustained millions of
dollars in cuts over the past several years due to budget
shortfalls, jeopardizing the handling of cases in all
areas of the law that affect our members. If new money
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is directed to the courts in 2013, we believe it should
first go towards restoring court funding necessary to
adequately run the existing system, not to establish a
new division within that system.
The author, in response to the above concerns, asserts that
"[w]e recognize that absent a funding mechanism these policy
proposals would likely undermine, rather than support, the
stated policy goals of achieving the consistent and efficient
resolution of environmental and land use claims. While the
full details of the funding proposal are currently being
drafted, some general concepts can be shared at this time.
The funding concept is intended to provide a significant
dedicated revenue stream to support the new divisions' costs
such as the time spent by judges assigned to the division,
dedicated support staff, such as staff attorneys assigned to
provide research and administrative record review assistance,
and annual trainings on the latest legislation and case law
for assigned judges and staff."
The Judicial Council, in opposition, further notes that they
have "a long history of opposition to bills that mandate the
creation of specialty courts, including most recently tax
courts and business courts. Courts need to have flexibility to
manage their own calendars, especially in the current budget
climate when courts are struggling under severe budget
reductions to operate with staff layoffs, reductions in
services and hours of operation, and insufficient judicial
resources. Shifting the caseload from the 58 superior courts
to as few as 12 courts would provide some limited relief to
the non-designated courts. However, the overall caseload would
remain the same, and would have to be absorbed by the courts
with the new designated environmental and land use divisions.
Requiring these already overly stressed courts to dedicate
limited staff and judicial resources to these cases at this
time would further tie their hands and limit their ability to
manage their workload in what they believe to be the most
effective and efficient manner."
In response to the above concerns, the author notes that the
"current version of the bill was drafted to maximize the
court's management authority while ensuring the policy goals
of the bill are still achieved. The requirement to create two
or more divisions in each appellate district is intended to
leave as many resource management decisions to the Judicial
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Council as feasible. The bill would mandate the creation of at
least two environmental and land use divisions in each of the
state's six appellate districts, leaving to the Judicial
Council decisions regarding the superior court locations,
whether to create more than two divisions, and how many judges
to assign calendar time to the division based upon their
determinations of overall capacity, resources and calendaring
needs."
Staff notes that, if approved by this Committee, SB 123 will
be referred to the Senate Appropriations Committee for a full
and complete evaluation of the funding issues. Furthermore,
as the potential funding mechanism is developed, as a matter
of public policy, it is important to consider the impact of
any new fee on the ability for Californians to access justice.
Although court user fees have been used to increase revenue to
some extent in recent years, there has been increasing concern
that further reliance on those fees will turn the courts into
a fee-for-service institution.
5. Judicial Council to establish appropriate standards and
protocols
In addition to the creation of an environmental and land use
division, this bill would require the Judicial Council to
establish appropriate standards and protocols for the division
to accomplish the objectives of consistency, expediency, and
expertise, including educational requirements and other
qualifications for specialized judges assigned to the division.
As the bill vests considerable discretion with the Judicial
Council to accomplish those goals, it is not clear what
standards or protocols would be developed, but, as a policy
matter, that discretion is arguably appropriate given that the
Judicial Branch is a separate, co-equal branch of government.
It should be noted that the concept of developing expertise in
the area of environmental and land use laws is not unique to
this bill. Under existing law, the superior courts in all
counties with a population of more than 200,000 are required to
designate one or more judges to develop expertise in CEQA and
related environmental and land use laws, so that those judges
will be available to hear, and quickly resolve, actions or
proceedings. The Judicial Council, in opposition, argues that
given the requirement to designate a judge with land use and
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environmental expertise, and the existing calendar preference
for CEQA cases, it is unclear why SB 123 is needed. The author,
in response, contends:
The current court requirements are helpful to some extent,
but these policies do not fully address the issues addressed
by this bill. The two policies identified include designated
CEQA judges and calendar preferences. First, the designated
CEQA judges are only required in about one-half of the
state's counties. This leaves the other half without any
mechanism of ensuring judges hearing these cases are trained
in this evolving and complex area of law. Second, calendar
preferences have proven insufficient given the financial
crisis the courts are facing, generally, and the still
common experience of cases taking [1.5]-2 years and
sometimes longer to reach a conclusion.
This bill does two things not addressed by the current
policies: (1) it consolidates the number of divisions to
better correlate with the actual volume of cases filed while
maintaining sensitivity to the need to provide access to the
courts, particularly in rural areas; and (2) once the
funding mechanism is added, provides for continuing
education to ensure those judges assigned to the division
are well-versed in this area of law and have access to some
additional staff resources to assist in the expeditious
review of these cases. The first is significant because
training alone, absent the opportunity to apply it on a
regular basis, is insufficient to develop a strong
expertise. A reasonable amount of consolidation will allow
for judges assigned to the division to develop expertise by
hearing cases more often than many communities typically do
individually. The second recognizes that the success of
consolidation is predicated on the new divisions having
sufficient training and resources so as not to overburden
the superior courts assigned to take on the additional
caseload. This bill, through forthcoming dedicated funding
and consolidation of cases into at least twelve divisions
around the state, will provide the staff resources and
judicial expertise, both in training and its application,
necessary to help facilitate fast and consistent resolution
of claims.
6. Delayed enactment date
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Considering the logistical steps that need to occur in order for
an environmental and land use division to be setup in at least
12 superior courts, it is essential that this bill include a
delayed-enactment date to allow some time for those steps to
occur. Accordingly, at a minimum, a six-month delayed enactment
date is suggested to allow for all the necessary steps to occur.
The author should continue working with interested parties to
determine whether more time is necessary to get the new
divisions up and running (with the required training and
procedures in place).
Suggested amendment:
On page 4, line 6, after the period insert:
69545. This article shall become operative on July 1, 2014.
7. Technical amendment
The author offers the following technical amendment to correct a
drafting error in the findings and declarations:
Technical amendment :
On page 3, lines 2 through 3, strike "each superior" and
insert:
the superior courts selected by the Judicial Council
Support : American Planning Association, California Chapter;
East Bay Municipal Utility District; Enhanced CEQA Action Team
Opposition : American Council of Engineering Companies,
California; Associated Builders and Contractors of California;
California Chamber of Commerce; California Judges Association;
California Manufacturers and Technology Association; Judicial
Council of California; Rural County Representatives of
California
HISTORY
Source : Author
Related Pending Legislation : AB 515 (Dickinson, 2013) would
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establish a CEQA compliance 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.
Prior Legislation :
AB 900 (Buchanan and Gordon, Chapter 354, Statutes of 2011),
enacted the Jobs and Economic Improvement Through Environmental
Leadership Act of 2011, and established specified judicial
review procedures for the judicial review of the environmental
impact report and approvals granted for a leadership project
related to the development of a residential, retail, commercial,
sports, cultural, entertainment, or recreational use project, or
clean renewable energy or clean energy manufacturing project.
SB 292 (Padilla, Chapter 353, Statutes of 2011), established
expedited judicial review procedures and required implementation
of specified traffic and air quality mitigation measures under
CEQA for the proposed downtown Los Angeles football stadium and
convention center project.
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