BILL ANALYSIS
AB 499
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 499
AUTHOR: Hill
AMENDED: June 18, 2009
FISCAL: Yes HEARING DATE: June 22, 2009
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1) Requires a notice of determination (NOD) to be filed by a
state or local agency approving or determining to carry out
a project that is subject to CEQA, and authorizes a notice
of exemption (NOE) to be filed by a state or local agency
approving or determining to carry out a project. State
agencies file the notices with the Office of Planning and
Research and local agencies file notices with the county
clerk.
2) Requires a petitioner or plaintiff to name, as a real party
in interest, any recipient of an approval that is the
subject of an action or proceeding brought pursuant to
certain provisions of CEQA, and to serve the petition or
complaint on that real party in interest no later than 20
business days following service of the petition or
complaint on the public agency.
3) Provides that failure to name potential persons, other than
those real parties in interest identified above, is not
grounds for dismissal.
4) Provides definitions for certain terms.
This bill :
1) Requires any recipient of approval to be identified in a
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NOD or NOE.
2) Authorizes a court to dismiss the petition or complaint if
the petitioner or plaintiff fails to serve a recipient of
approval as identified in the NOD or NOE. The court must
issue an order providing additional time for, and specify
the manner of, service of the recipient of approval if the
petitioner or plaintiff demonstrates to the court's
satisfaction that a good faith effort to effect service to
the recipient of approval has been made.
3) Clarifies that failure to name potential persons (rather
than parties), other than those real parties in interest
identified above as identified by the public agency in its
NOD or NOE, is not grounds for dismissal.
4) Defines "recipient of approval" to be the project applicant
on the date of final public agency action as identified in
the public agency's record of proceedings.
5) Provides that the above amendments do not apply to a
proceeding for judicial review filed pursuant to certain
CEQA requirements and pending on or before December 31,
2009, or to an action for which a NOD or NOE was filed on
or before December 31, 2009, and the applicable law in
effect on that date must continue to apply to that
proceeding.
6) Makes related technical and clarifying amendments.
COMMENTS :
1) Purpose of Bill . According to the author, "In 2007, the
Court of Appeal declared in County of Imperial v. Superior
Court 152 Cal. App. 4th 13, that any person who, years
after project approval, claims to be a recipient of
approval can be considered an 'indispensable party' who
needed to be named in a CEQA lawsuit brought within 30 days
of project approval; failure to have named the party within
that 30-day period requires categorical dismissal of the
lawsuit. Such dismissal is required, the Court held in
interpreting existing section 21167.6.5 of the Public
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Resources Code, 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'."
The author notes that "This bill would eliminate the current
inefficiencies by specifying that only those parties
actually identified in the lead agency's CEQA approval as a
recipient of that approval must be named. If parties not
so named want to nonetheless participate in the litigation,
existing law allows them to intervene on their own
initiative."
2) Brief background on CEQA . 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, the lead agency must prepare an 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 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 of the proposed project.
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3) Background on Public Resources Code 21167.6.5 . SB 1393
(Kuehl) Chapter 1121, Statutes of 2002, made various
revisions to CEQA, 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 ( i.e. ,
recipient of approval, certain agencies) is not grounds for
dismissal.
AB 2814 (Simitian) Chapter 522, Statutes of 2004, clarified
that failure to name potential parties, other than those
identified real parties in interest (i.e., recipient of
approval), is not grounds for dismissal.
SB 68 (Kuehl) of 2008 revised these procedures to require the
petitioner or plaintiff to name as a real party in
interest, any recipient of an approval as identified by the
public agency in its NOD or NOE. If the petitioner or
plaintiff fails to serve any recipient of an approval
identified in the public agency's NOD or NOE, the petition
or complaint must be subject to dismissal on the motion of
any party interested in the proceeding. Failure to name
potential persons other than those identified (i.e.,
recipient of approval), as identified in the NOD or NOE, is
not grounds for dismissal. In vetoing SB 68, Governor
Schwarzenegger indicated that "it provides no clarification
on the meaning of [recipient of approval] and it is unclear
as to how lead agencies would comply with the requirements
of this bill."
4) Responding to Governor's concerns . AB 499 seeks to respond
to the Governor's SB 68 veto message by: a) amending
Public Resources Code 21108 and 21152 to require that
NODs and NOEs name the recipient of approval, b) defining
"recipient of approval," and c) clarifying the dismissal
provisions.
SOURCE : Planning and Conservation League
SUPPORT : California Council for Environmental and
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Economic Balance, California League of
Conservation Voters, California Native Plant
Society, California State Parks Foundation,
Clean Water Action, Environmental Defense Fund,
Natural Resources Defense Council, Sierra Club
California
OPPOSITION : None on file