BILL ANALYSIS �
AB 320
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 320 (Hill) - As Introduced: February 9, 2011
As Proposed to be Amended
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA): REAL
PARTIES IN INTEREST
KEY ISSUE : SHOULD THE "REAL PARTIES IN INTEREST" THAT MUST BE
NAMED IN A CEQA LAWSUIT BE THOSE PARTIES IDENTIFIED IN THE LEAD
AGENCY'S CEQA APPROVAL?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill would amend California Environmental Quality Act
(CEQA) notice and judicial review procedures to (1) require the
relevant public agency - or the "lead" agency - to identify any
recipient(s) of the agency's project approval; and (2) clarify
that any party challenging the approval must name the identified
recipient(s) as the "real parties in interest" in its CEQA suit.
These requirements seek to eliminate inefficiencies in existing
law by clarifying who must be named as the real parties of
interest in the commencement of a CEQA suit. Existing law
requires that all "indispensible" parties must be named and
provides that failure to do so can lead to a categorical
dismissal of the suit. This existing requirement effectively
forces plaintiffs to name all conceivable parties in interest so
as not to have the suit dismissed for failure to name one of
them. Existing law, therefore, not only burdens the plaintiff;
it also burdens the unnecessarily named parties. This bill is
similar to AB 499 (Hill) of 2009, which was vetoed by Governor
Schwarzenegger. This bill is sponsored by the California
Planning and Conservation League and supported by the Imperial
County Board of Supervisors and several environmental groups.
The bill is opposed by the American Council of Engineering
Companies of California, who argue that this bill unfairly
shifts the burden to identify the relevant parties from the
plaintiff to the agency and will force real parties in interest
who are not named to participate through the rules of
AB 320
Page 2
intervention.
SUMMARY : Requires a lead agency to name any recipient(s) of
approval in any CEQA notice of approval or determination and
requires any party seeking to challenge the approval or
determination to name the identified recipient(s) as "real
parties in interest." Specifically, this bill :
1)Requires that whenever a public agency approves or determines
to carry out a project subject to CEQA, it must identify the
recipient or recipients of the agency's approval in its notice
of determination or exemption.
2)Provides that the recipient or recipients of project approval
identified by the lead agency are the real parties in interest
and must be named in, and served with, the petition or
complaint.
3)Provides that, upon motion of any interested party, the
petition or complaint is subject to dismissal if the
petitioner or plaintiff fails to serve the recipient or
recipients of approval as identified by the public agency.
4)Provides that the bill's revisions apply prospectively, and
therefore do not apply to CEQA lawsuits pending, or to public
agency decisions for which a notice was filed, on or before
December 31, 2011.
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 for this action, unless the
project is exempt from CEQA. (Public Resources Code section
21000 et seq.)
2)Requires a state agency to file a notice of its CEQA decision
with the Office of Planning and Research and requires a local
agency to file a notice of its decision with the appropriate
county clerk(s). (Public Resources Code section 21108 and
21152.)
3)Provides appeal procedures to challenge lead agency decisions,
including requiring the petitioner or plaintiff to name, and
AB 320
Page 3
serve, a real party in interest; provides that failure to name
potential parties, other than specified real parties in
interest, is not grounds for dismissal of the appeal. (Public
Resources Code section 21167.6.5.)
4)Provides that a person who is subject to service of process
and whose joinder will not deprive the court of jurisdiction
over the subject matter of the action shall be joined as a
party in the action if (1) in his absence complete relief
cannot be accorded among those already parties or (2) he
claims an interest relating to the subject of the action and
is so situated that the disposition of the action in his
absence may (i) as a practical matter impair or impede his
ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest. Requires any
complaint or cross-complaint to name such persons, if known,
or state reasons why persons are not joined. (Code of Civil
Procedure 389.)
COMMENTS : This bill requires lead agencies to list "recipients
of approval" for a particular project in their notice of
determination or exemption. Additionally, this measure
clarifies that a petition or complaint challenging the agency's
CEQA determination or approval will be dismissed for failure to
identify any named recipient or recipients as the real party in
interest. Existing law permits dismissal for failure to name
any "indispensible party," but it does not require a lead agency
to identify any indispensible party in its notice of
determination or exemption. As the sponsor of this bill, the
Planning and Conservation League, explains:
To prevent important cases from being dismissed,
petitioners in CEQA lawsuits are forced to over-name and
serve parties who might or might not be considered
indispensable to ensure they have not missed anyone. This
is extremely burdensome not only to the petitioners, but
also to those who have been named as real parties in
interest by the petitioners simply out of an abundance of
caution in light of the result in the County of Imperial
case. �See case description below.]
A "real party in interest" is a person affected by litigation,
other than the plaintiff or the defendant, and whose absence may
AB 320
Page 4
impede a complete and equitable resolution of the matter. The
"indispensable party rule" generally requires the naming of, and
adequate service of notice to, a person who is deemed to be an
indispensible party. (Code of Civil Procedure 389.)
Background : Enacted in 1970 as Public Resources Code Sections
21000-21177, the California Environmental Quality Act (CEQA)
applies to projects undertaken, funded or requiring an issuance
of a permit by a public agency. CEQA requires a lead agency,
the principal public agency ensuring CEQA compliance, to prepare
an analysis of any project that may have a significant effect on
the environment. The analysis of a project usually takes the
form of an Environmental Impact Report, Environmental Impact
Statement, Negative Declaration, or Environmental Assessment.
CEQA also requires the lead agency to file a notice of approval
or a notice of determination containing specified information
with the Office of Planning Research or the county clerk of each
county in which the project is located. CEQA provides the
procedure by which a party may file a lawsuit against the
continuance of a project thought to harm the environment. In
order to file a lawsuit, however, the party must name all the
individuals involved in the project for the suit to withstand
dismissal.
As recently declared by the Court of Appeal in County of
Imperial v. Superior Court (2007) 152 Cal. App. 4th 13, any
person who claims to be a recipient of approval can be
considered an "indispensable party" and therefore a party that
is required to be named in a CEQA lawsuit. However, a CEQA
lawsuit must be brought within 30 days of project approval, and
failure to name all indispensable parties within that 30-day
period results in categorical dismissal of the lawsuit. The
court upheld the dismissal of this lawsuit 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."
AB 499 Veto Message : This bill is nearly identical to AB 499
(Hill) of 2009, which was vetoed by Governor Schwarzenegger, for
the following reasons:
This bill makes several changes to the California
Environmental Quality Act (CEQA) under the guise of CEQA
streamlining. Unfortunately, it appears to simply be a
AB 320
Page 5
back-door attempt to lessee the legal requirements for
those who seek to challenge projects under CEQA.
Current CEQA law requires the dismissal of a lawsuit if
the plaintiff fails to name a real party in interest.
This bill eliminates that dismissal and instead requires
the court to grant the petitioner additional time to find
a real party in interest and give them notice. By doing
so, it gives plaintiffs multiple bites at the apple to
file CEQA lawsuits.
The bill also requires a lead agency to list only the
project applicant in its notice. I vetoed a similar bill
in 2008 due to my concerns that it placed upon the lead
agency a new liability for actions not directly related to
its review of a project.
Additionally, simply listing the project applicant omits
other parties who may have legal standing and could
infringe upon their constitutional right to due process.
Although the Governor's veto message raises understandable
concerns about potentially imposing new burdens on lead agencies
or infringing upon rights of due process, the Committee
respectfully disagrees as to the likely results of this bill.
First, this bill does not require the lead agency to name "only"
the "project applicant;" rather, as proposed to be amended, this
bill requires the lead agency to "name the recipient or
recipients of the agency's approval, if any." Existing law does
not currently require the agency to name any applicant or
recipient, placing the burden entirely upon the challenging
petitioner to identify all recipients and name them as the real
parties in interest. By requiring the lead agency to identify
the recipient or recipients, this bill merely ensures that the
petitioner or plaintiff will name the relevant party and
eliminate the need for the inefficient shotgun approach of
naming all potential parties in interest. With due respect to
Governor Schwarzenegger, requiring a lead agency to identify any
recipients of approval - since these are the parties who have
applied for and received approval - does not seem overly
burdensome, especially given that an innocent failure to name a
peripheral party can lead to a complete dismissal of an
otherwise meritorious challenge.
AB 320
Page 6
As for the concern that this bill will omit parties who have
legal standing and thereby infringe upon their due process
rights, the Committee must again respectfully disagree. This
bill would simply require the lead agency to identify those
parties that must be named in a suit in order for the suit to
avoid categorical dismissal. Any interested parties who are not
named in the suit are still free, as they always have been, to
intervene in the litigation through well-established procedures.
To be sure this will require some watchfulness and initiative
on the part of those parties, but it does not exclude them from
the litigation simply because they were not named as a recipient
by the lead agency.
AUTHOR's AmendmentS . According to the author, this bill seeks
to require a lead agency to identify any "recipients" (plural)
of approval. However, the bill as drafted requires the agency
to name "the recipient" (singular). In other words, the
author's intent is that the agency should name all recipients
(i.e. persons or entities that were part of the application
process and have had their application approved) and that the
petitioner or plaintiff should name all of the recipients so
identified. This "technical" change is significant because the
existing bill language could be construed to imply that an
agency need only identify a single or primary recipient and thus
the petitioner or plaintiff need only name that single
recipient, even where the petitioner or plaintiff knows of other
recipients. In order to accommodate a situation in which there
is more than one recipient - and therefore more than one party
that must be named in the CEQA suit - the author wishes to amend
the bill to change "recipient" wherever it exists to "recipient
or recipients." Specifically, the amendments would be as
follows:
- On page 2 line 7 after "recipient" insert or recipients
- On page 3 line 1 after "recipient" insert or recipients
- On page 3 line 22 after "recipient" insert or recipients
- On page 3 line 37 after "recipient" insert or recipients
- On page 4 line 15 change "a" to "any" and after
"recipient" insert or recipients
- On page 4 line 24 after "recipient" insert or recipients
AB 320
Page 7
ARGUMENTS IN SUPPORT : According to the author, this bill
intends to resolve the situation in which CEQA plaintiffs must
either name and serve every conceivable party, or face the risk
their action may be dismissed. In order to avoid this dilemma
and make the process more efficient, this bill requires a lead
agency to name the recipients of approval in any notice of
approval or determination so that a party seeking to challenge
the agency's decision will know what parties must be named and
served. Other parties who are not named may intervene on their
own initiative. As the Planning and Conservation League states:
This clarity is especially important in CEQA cases since
they have extremely short statutes of limitation. Cases
must be filed, with all recipients of approval included in
the filing, within 30 days of project approval. That is
often not enough time for the lead agency to hand over the
entire Administrative Record in the case, which at least
contains information to suggest which entities might need
to be included in the lawsuit.
According to its supporters, the bill will thus improve the
efficiency of CEQA judicial review by addressing a burdensome
procedural complication without affecting the statute's intent
regarding notice and participation in CEQA litigation.
Supporters point out that it is unfair and unrealistic to force
the petitioner to name all conceivable parties in interest.
ARGUMENTS IN OPPOSITION : The American Council of Engineering
Companies of California (ACEC) contends that this bill would
unfairly shift the burden for identifying the real parties in
interests from the plaintiff or petitioner to the public agency.
In addition, ACEC argues that this bill will adversely affect
the right of real parties in interest to participate fully in
the action, since they "will either be excluded or will have to
seek to participate according to the rules of intervention."
Prior Related Legislation. AB 499 (Hill, 2009) was nearly
identical to this bill. The bill was vetoed for the reasons
stated above.
SB 68 (Kuehl, 2008), also similar to this bill, was vetoed by
the Governor, who objected to making lead agencies responsible
for determining the "real parties in interest."
AB 320
Page 8
AB 2814 (Simitian) Chapter 522, Statutes of 2004, provided that
failure to name potential parties, other than the recipient of
an approval, is not grounds for dismissal.
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, is not grounds
for dismissal.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO
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
Imperial County Board of Supervisors
Natural Resources Defense Council
Planning and Conservation League
Sierra Club California
Opposition
American Council of Engineering Companies of California
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334