BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 1248
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|Author: |Moorlach |
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|Version: |2/18/2016 |Hearing |4/20/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Joanne Roy |
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SUBJECT: Environmental quality: judicial challenge:
identification of contributors
ANALYSIS:
Existing law, under the California Environmental Quality Act
(CEQA),
1) Requires lead agencies with the principal responsibility for
carrying out or approving a proposed discretionary 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). (Public Resources Code
(PRC) §21000 et seq.)
2) Requires litigation under CEQA be handled under specified
time limits and criteria. (PRC §21167 et seq.)
This bill:
1) Requires a plaintiff or petitioner, in an action brought
pursuant to CEQA, to disclose specified information regarding
the plaintiff or petitioner in the complaint or petition or
in a subsequent notice.
2) Requires disclosure of the identity of a person or entity
that contributes more than $100, as specified, toward the
plaintiff's or petitioner's costs of an action.
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3) Provides that a failure to provide this disclosure is grounds
for dismissal of the action by the court or, if the failure
occurs during postjudgment proceeding, the denial of
attorneys' fees for a successful plaintiff or petitioner.
4) Requires the plaintiff or petitioner to identify any
pecuniary or business interest related to the project or
issues involved in the action of any person or entity named
as a plaintiff or petitioner or that contributes in excess of
$100 to the costs of the action, as specified.
Background
1) CEQA: Environmental review process.
CEQA provides a process for evaluating the environmental effects
of a project, and includes statutory exemptions as well as
categorical exemptions in the CEQA guidelines. If a project
is not exempt from CEQA, an initial study is prepared to
determine whether a 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, then the lead agency must prepare an
Environmental Impact Report (EIR).
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. Prior to approving any project that
has received an environmental review, an agency must make
certain findings. 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.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure must
be discussed but in less detail than the significant effects
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of the proposed project.
2) CEQA litigation: legal enforcement.
CEQA is a self-executing statute. Enforcement of CEQA is
primarily through a civil lawsuit challenging a project's
environmental review. Plaintiffs may include private
individuals, organizations, and public agencies. In
addition, the California Attorney General has the authority
to bring a suit for the purpose of enforcing compliance with
CEQA.
Examples of CEQA litigation issues include: whether an activity
is considered a "project" pursuant to the act if an exemption
applies to a project; the type of environmental review that
should be required - whether a "fair argument" can be made
that a project has potential significant impacts; adequacy of
an EIR such as inadequate analysis of an issue area or
cumulative impacts; and, procedural compliance like failure
to consult with a responsible agency.
In general terms, there are a few remedies available when a
court finds a CEQA violation. First, the court may order the
defendant agency to comply with the act. Second, the court
may void the agency action, or portions thereof. Lastly, the
court may suspend all agency and pertinent project actions
that could have an environmental impact until CEQA compliance
is completed.
3) Freedom of association.
Freedom of association is the right to become a member of or
depart from a group of a person's own choosing, and for the
group to take collective action to pursue the interests of
its members - freedom of association is considered both an
individual right and a collective right. The right to
associate is not an independent constitutional right but is
derived from the First Amendment guarantees of freedom of
speech and expression.
Freedom of association as a concept grew out of a series of
cases in the 1950s and 1960s in which certain states were
attempting to curb the activities of the National Association
for the Advancement of Colored People (NAACP). In NAACP v.
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Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.
Ed. 2d 1488 (1958), the U.S. Supreme Court held that a lower
court's order compelling members of the NAACP to disclose
records containing the names and addresses of its Alabama
members violated the group's right to associate freely. "It
is beyond debate that freedom to engage in association for
the advancement of beliefs and ideas is an inseparable aspect
of 'liberty' assured by the Due Process Clause of the
Fourteenth Amendment, which embraces freedom of speech?Of
course, it is immaterial whether the beliefs sought to be
advanced by association pertain to political, economic
religious or cultural matters, and state action which may
have the effect of curtailing the freedom to associate is
subject to the closest of scrutiny." (Ibid at 460-461). The
Court also held that "[e]ffective advocacy of both public and
private points of view, particularly controversial ones, is
undeniably enhanced by group association, as the Court has
more than once recognized by remarking upon the close nexus
between the freedoms of speech and assembly." (Ibid at 460).
The Court recognized freedom of association as an adjunct to
the NAACP's free speech rights and held that the freedom to
associate for the advancement of beliefs and ideas is
inseparable from the freedom of speech.
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Comments
1) Purpose of Bill.
According to the author:
Transparency is a hallmark of good government. This bill
would prevent those who seek an unfair business competition
advantage or have ulterior motives, from improperly hiding
behind [CEQA] to block a project through litigation.
Simply, this bill would require full disclosure of all
participating parties in CEQA litigation and remove
anonymity from those who file under the pseudonyms of
unincorporated associations. This bill will also require
disclosure of any party that has financially contributed to
CEQA litigation, as is required in attorney fee motions and
amicus filings and similar to campaign finance disclosure
laws.
State law allows wide discretion for environmental lawsuits
with private-party litigation alleging improper analyses
and approval processes. Inasmuch as these kinds of
lawsuits may have a legitimate basis, many litigants have
non-environmental reasons for suing on a project under CEQA
and will sue on projects that are designed to advance
California's rigorous environmental goals.
A recent study showed that about half of CEQA lawsuits are
on taxpayer projects with no "business" interests. For
CEQA lawsuits targeting construction projects, 80% of them
are on infill projects. Plaintiffs who challenge projects
under CEQA typically file "kitchen-sink" complaints that
include every conceivable legal theory or cause of action
that could provide a basis for a judge to set aside a
project. In many instances, plaintiffs may organize under
an umbrella group to remain anonymous in their litigation
as to not be identified in the process.
CEQA was designed to "Ensure that the long-term protection
of the environment, consistent with the provision of a
decent home and suitable living environment for every
Californian, shall be the guiding criterion in public
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decisions." It fails when even the smallest of irrelevant
lawsuits with ulterior motives can delay or stop the
building of homes and businesses in our communities.
2) Fundamental right: Freedom of association: Does this bill
conflict?
Almost 60 years ago in NAACP v. Patterson, the U.S. Supreme
Court observed how "effective advocacy of both public and
private points of view, particularly controversial ones, is
undeniably enhanced by group association." In that case, the
Court struck down an effort by the State of Alabama to
require the NAACP to disclose its membership lists, noting
that it was "hardly a novel perception that compelled
disclosure of affiliation with groups engaged in advocacy may
constitute [an] effective restraint on freedom of
association," and along with it freedom of speech.
In regards to this bill, questions arise - Would the mandatory
disclosure of membership lists by groups who seek redress in
the courts similarly undermine the public's ability to freely
take part in the CEQA review process? Would neighbors become
fearful of speaking out against projects they opposed if they
thought they could be individually identified and subjected
to pressure by project proponents? This is a dangerous
prospect, and one that should be avoided.
3) Does focusing on the "who" take away from the "what"?
Calls by some reformers for "transparency" in the CEQA process
want to require parties who file CEQA lawsuits to identify
who they are, what their interests are, and attest that they
are not using CEQA to advance some ulterior motive. However,
this bill could create more problems than it solves by
potentially creating an incentive for defendants to spend
time and money to pick apart a petitioner's motives rather
than focus on the matter at hand - whether they complied with
the law. Also, does this bill create an intimidation tactic
to discourage individuals from opposing a project? The
committee may wish to consider that although this bill may be
well-intentioned, SB 1248 could fundamentally undermine
public participation in the review process.
4) Basis of this bill.
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The author bases this bill on information from a study, In the
Name of the Environment , by Holland & Knight law firm.
However, concern has been raised that "the report uses
questionable methodology to support conclusions that cannot
be substantiated." (Shute, Mihaly & Weinberger, LLP, "Setting
the Record Straight on CEQA," 2016).
For example, the author notes that for CEQA lawsuits targeting
construction projects, 80% of them are infill projects. The
report defines infill projects as "private and public sector
projects located entirely within one of California's 482
cities, or located immediately adjacent to existing developed
areas in an unincorporated county." Sean Hecht, co-executive
director of the Emmett Institute on Climate Change and the
Environment, UCLA School of Law, states, "The report's
analysis of CEQA's impact on infill is thus so flawed as to
be useless?[T]his report considers any project, of any type,
located within the boundaries of any California city, or next
to development outside a city, to be an 'infill project.'
Under this definition, it is unsurprising that most CEQA
cases would involve 'infill.' In fact, it would be
surprising if any significant number did
not!...Unsurprisingly, the definition includes projects that
virtually no one would recognize as 'infill' under any common
definition." (Sean Hecht, "Anti-CEQA Lobbyists Turn to
Empirical Analysis, But Are Their Conclusions Sound?" Legal
Planet: Insight & Analysis: Environmental Law and Policy,
September 28, 2015).
Professor Hecht further states, "The report assembles a
nearly-complete census of virtually all CEQA cases filed in
California trial courts during the three-year period 2010
through 2012, and concludes - in heavy-handed rhetoric - that
CEQA is typically not used to protect the environment, but
actually harms the environment (and the economy). But
despite the impressive quantity of data amassed for the
report, my major takeaway is that the report's own
dataset?does not support its conclusions. This report should
not be used to inform future policy."
5) CEQA litigation.
It is not unusual for certain interests to blame CEQA lawsuits
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for causing problems to a project. However, it should be
noted that the only tool for enforcing CEQA is litigation.
Those citing CEQA litigation as a problem do not indicate the
result of that litigation. For example, were significant
impacts that were not evaluated in the initial document
ultimately addressed? What would have been the result if
those impacts had not been mitigated (e.g., flooding,
exposure of people to hazards, inadequate public services,
congestion)?
The total number of CEQA cases filed averages about 200 cases
per year statewide and make up approximately 0.02% of
1,100,000 civil cases filed annually in California.
The California Attorney General's office conducted a case study
of CEQA challenges in the City and County of San Francisco
from July 2011 through December 2011 and found that 18
lawsuits were filed out of 5,203 projects considered under
CEQA.
According to the Natural Resources Defense Council, a review of
CEQA challenges in the City of Los Angeles from January 2011
through July 20, 2012, shows that of 1,182 projects reviewed
under CEQA, 18 were challenged, which is a litigation rate of
1.5%.
In addition, a question arises as to how prevalent CEQA
litigation is among public works projects. For example, the
Department of Transportation (Caltrans) provided the
following numbers related to Caltrans projects subject to
CEQA and CEQA litigation:
Number of Caltrans projects subject to CEQA:
FY 11/12: 643 projects
FY 12/13: 566 projects
FY 13/14: 665 projects
FY 14/15: 725 projects
Types of environmental review required for Caltrans
projects:
Exempted from CEQA: 90% of projects
Negative Declaration(ND)/Mitigated ND: 8% of
projects
EIR: 2% of projects
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Number of Caltrans CEQA-related cases:
FY 11/12: 3 cases
FY 12/13: 2 cases
FY 13/14: 4 cases
FY 14/15: 0 cases
Although certain interests believe CEQA litigation to be a
swathing impediment to some projects, the numbers above seem
to indicate otherwise. And if a project is the subject of
litigation, perhaps the cause of action has merit and ensures
compliance with the law. The volume of CEQA litigation is
low considering the thousands of projects subject to CEQA
each year as well as the volume of civil litigation in
general statewide.
1) Conclusion.
As noted above, questions arise as to whether this bill
infringes on a person's fundamental right of freedom of
association, whether focusing on who is suing takes away from
enforcement efforts to comply with the law, and how prevalent
CEQA litigation actually is. Considering the issues raised
above, the Committee may wish to consider the need for this
bill.
DOUBLE REFERRAL:
If this measure is approved by the Senate Environmental Quality
Committee, the do pass motion must include the action to
re-refer the bill to the Senate Judiciary Committee.
SOURCE: Author
SUPPORT:
California Chamber of Commerce
Civil Justice Association of California
Readymix Concrete, Asphalt & Aggregate
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OPPOSITION:
California League of Conservation Voters
Sierra Club California
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