BILL ANALYSIS Ó
AB 2026
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Date of Hearing: April 18, 2016
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 2026
(Hadley) - As Amended March 18, 2016
SUBJECT: California Environmental Quality Act: judicial
challenge: identification of contributors
SUMMARY: Requires plaintiffs in California Environmental
Quality Act (CEQA) lawsuits to identify every person or entity
who contributed, or committed to contribute, $1,000 or more to
support the lawsuit.
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 (EIR) for this action, unless the
project is exempt from CEQA (CEQA includes various statutory
exemptions, as well as categorical exemptions in the CEQA
guidelines).
2)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR doesn't comply with CEQA,
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must be filed in the Superior Court within 30 days of filing
of the notice of approval. The courts are required to give
CEQA actions preference over all other civil actions.
3)Authorizes a trial court to order a party, the party's
attorney, or both to pay the reasonable expenses, including
attorney's fees, incurred by another party as a result of
bad-faith actions or tactics that are frivolous or solely
intended to cause unnecessary delay.
THIS BILL:
1)Requires the plaintiff or petitioner in a CEQA lawsuit to
identify every person or entity who made a monetary
contribution of $1,000 or more, or committed to contribute
$1,000 or more, for the preparation of the petition and
subsequent action or proceeding.
2)Requires the plaintiff or petitioner to continue throughout
the course of the proceeding to identify any person or entity
that has made a single or multiple contributions or
commitments, the sum of which is $1,000 or more, and that were
intended to fund the action or proceeding.
3)Requires the above disclosures to also include the identity of
any pecuniary or business interest that the person or entity
has related to the proposed project.
4)Permits a court to withhold the public disclosure of a
contributor if it finds that the public interest in keeping
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that information confidential clearly outweighs the public
interest in disclosure, upon request of a plaintiff or
petitioner.
5)Permits a court to take any action necessary to compel
compliance with these disclosure requirements, up to and
including dismissal of the action or proceeding.
6)Provides that an individual contributing funds to file a CEQA
lawsuit in his or her individual capacity, and not as a
representative for an organization or association, has the
right to limit disclosure of his or her personal information
to an in-camera review by the court.
7)Permit a court to use the information disclosed to determine
whether the financial burden of private enforcement supports
the award of attorneys' fees.
FISCAL EFFECT: Non-fiscal
COMMENTS:
1)Background. CEQA provides a process for evaluating the
environmental effects of applicable projects undertaken or
approved by public agencies. If a project is not exempt from
CEQA, an initial study is prepared to determine whether the
project may have a significant effect on the environment. If
the initial study shows that there would not be a significant
effect on the environment, the lead agency must prepare a
negative declaration. If the initial study shows that the
project may have a significant effect on the environment, the
lead agency must prepare an EIR.
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Generally, an EIR must accurately describe the proposed
project, identify and analyze each significant environmental
impact expected to result from the proposed project, identify
mitigation measures to reduce those impacts to the extent
feasible, and evaluate a range of reasonable alternatives to
the proposed project. If mitigation measures are required or
incorporated into a project, the agency must adopt a reporting
or monitoring program to ensure compliance with those
measures.
CEQA actions taken by public agencies can be challenged in
Superior Court once the agency approves or determines to carry
out the project. CEQA appeals are subject to unusually short
statutes of limitations. Under current law, court challenges
of CEQA decisions generally must be filed within 30 to 35
days, depending on the type of decision. The courts are
required to give CEQA actions preference over all other civil
actions.
2)Author's statement:
CEQA was established to allow environmentally minded individuals
and organizations to review the environmental impacts of
potential projects and to work with all parties to reduce the
negative effects on the environment those projects might create.
Although well intentioned, over the past four years, only 32%
of all CEQA cases were filed by individuals (19%) or
environmental advocacy groups (13%). Instead, CEQA lawsuits can
be filed anonymously with the true filer unknown to the judge,
defending agency, or the public. Today, 45% of CEQA lawsuits
are filed anonymously. Individuals and groups file anonymously
for many reasons; to slow down a competitor's project, to
leverage for bargaining agreements, to maintain access to a
'free' commodity like water, wind or sun, or to stop a plan for
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non-environmental reasons.
According to KPBS San Diego, as of May 2015 one lawyer and his
law firm had sued on behalf of more than 30 so called
"charitable nonprofits", almost all of which he and his family
helped create, and all but two share the same mailing address as
the law firm. This tactic is known as "greenmail." California
courts have already established a process by which parties that
file amicus briefs identify their financial supporters. AB 2026
adopts that procedure without changes. Should the court find
that the public interest in keeping this information
confidential clearly outweighs the public interest in disclosure
in any particular case, AB 2026 allows the plaintiffs to keep
the records of their contributors sealed.
3)Amicus disclosure rules serve a different purpose. Amicus
curiae are not the same as plaintiffs. Though the author
cites the amicus disclosure rules as precedent in support of
this bill, the primary purpose of those rules is to enable
courts to ensure that the amicus process is not being used to
circumvent limits on briefing by the parties (i.e., by
covertly funding amicus briefs to support their position).
And, unlike this bill, the amicus rules apply to both sides.
The amicus disclosure requirement [California Rules of Court
8.200(c)] was adopted in 2008 based on the recommendation of
the Judicial Council Appellate Advisory Committee. The
Committee's report states:
To help (the United States Supreme Court) ensure that the
amicus process is not being used to circumvent limits on
briefing by the parties and also to help the court better
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identify the source of amicus briefs, United States Supreme
Court Rules, rule 37.6 provides that:
Except for briefs presented on behalf of amicus curiae
listed in Rule 37.4 (i.e., the Solicitor General and
certain other government entities) a brief filed under
this Rule shall indicate whether counsel for a party
authored the brief in whole or in part and whether such
counsel or a party made a monetary contribution intended
to fund the preparation or submission of the brief, and
shall identify every person other than the amicus curiae,
its members, or its counsel, who made such a monetary
contribution. The disclosure shall be made in the first
footnote on the first page of text.
Amending rules 8.200, 8.520, and 8.882 to require that
applications to file an amicus brief in a California
appellate court to provide this same information will
similarly ensure that amicus process in the California
courts is not being used to circumvent limits on briefing
by the parties and will help the courts better identify the
source of amicus briefs.
4)Bill seems inequitable by design. This bill seems inequitable
for two reasons. First, it applies disclosure requirements
only to plaintiffs and not to other parties. Second, the bill
only applies to plaintiffs who have accepted monetary
contributions, in effect exempting self-financed plaintiffs
and targeting organizations and individuals who must raise
funds to support their advocacy. Adding to this discrepancy,
the bill specifically permits a self-financed individual
plaintiff to shield his or her personal information from the
public.
5)And unnecessary to address the purported problem. The courts
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have authority under current law to sanction parties who
pursue claims in bad faith or for improper purposes. If the
identity or motives of a plaintiff are in question, a court
can not only compel the party to identify itself, but issue
sanctions if the court finds that the party's actions or
tactics are frivolous.
6)Double referral. This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
Central Coast Forest Association
Civil Justice Association of California
Torrance Area Chamber of Commerce
Opposition
California League of Conservation Voters
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Sierra Club California
State Building and Construction Trades Council
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092