BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 499|
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THIRD READING
Bill No: AB 499
Author: Hill (D)
Amended: 6/18/09 in Senate
Vote: 21
SENATE ENV. QUALITY COMMITTEE : 5-2, 6/22/09
AYES: Simitian, Corbett, Hancock, Lowenthal, Pavley
NOES: Runner, Ashburn
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 47-30, 5/28/09 - See last page for vote
SUBJECT : California Environmental Quality Act: dispute
SOURCE : Planning and Conservation League
DIGEST : This bill revises California Environmental
Quality Act (CEQA) judicial review procedures to clarify
that only the recipients of a project approval identified
by the lead agency are the real parties in interest that
must be named by the plaintiff in an appeal of the lead
agency's decision.
ANALYSIS : Existing law, under the 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
CONTINUED
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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
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
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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
According to the author's office, "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
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."
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
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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.
Background on Public Resources Code Section 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.,
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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."
Responding to Governor's concerns . This bill seeks to
respond to the Governor's SB 68 veto message by: a)
amending Public Resources Code Sections 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/29/09)
Planning and Conservation League (source)
California Council for Environmental and 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
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Coto, Davis, De La Torre, De Leon, Eng, Feuer, Fong,
Fuentes, Furutani, Galgiani, Hayashi, Hernandez, Hill,
Huffman, Jones, Krekorian, Lieu, Bonnie Lowenthal, Ma,
Mendoza, Monning, Nava, John A. Perez, V. Manuel Perez,
Portantino, Price, Ruskin, Salas, Saldana, Skinner,
Solorio, Swanson, Torlakson, Torres, Torrico, Yamada,
Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
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Villines
NO VOTE RECORDED: Chesbro, Evans, Hall
TSM:nl 6/29/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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