BILL ANALYSIS �
AB 320
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 320
AUTHOR: Hill
AMENDED: June 14, 2011
FISCAL: Yes HEARING DATE: June 20, 2011
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 that is not
subject to CEQA. State agencies file the notices with the
Office of Planning and Research and local agencies file
notices with the county clerk. (Public Resources Code
��21108 and 21152).
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. (�21167.6.5(a)).
3) Provides that failure to name potential parties, other than
those real parties in interest identified above, is not
grounds for dismissal. (�21167.6.5(e)).
4) Defines "project" to be an activity that may cause either a
direct physical change in the environment or a reasonably
forseeable indirect physical change in the environment and
that is any of the following: a) an activity directly
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undertaken by any public agency; b) an activity undertaken
by a person that is supported by certain sources from one
or more public agencies; or c) an activity involving the
issuance to a person of a lease, permit, license,
certificate, or other entitlement for use by one or more
public agencies. (�21065).
This bill :
1) Requires the person or persons referenced in the definition
of project (#4 b) or c) above), as reflected in the
agency's record of proceedings, to be identified in a NOD
or NOE. (��21108 and 21152).
2) Requires the petitioner or plaintiff to name, as real party
in interest, the person or persons (rather than recipients
of approval) identified in its NOD or NOE or, if no notice
is filed, the person or persons referenced in the
definition of "project," as reflected in the agency's
record of proceedings. (�21167.6.5(a)).
3) Clarifies that failure to name potential "persons" (rather
than "parties"), other than those real parties in interest
identified above, is not grounds for dismissal.
(�21167.6.5(e)).
4) 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,
2011, or to an action for which a NOD or NOE was filed on
or before December 31, 2011, and the applicable law in
effect on that date must continue to apply to that
proceeding.
5) 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 claims -
even years after project approval - to be a recipient of
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approval can be considered an 'indispensable party' who
needed to be named in a CEQA lawsuit; 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 throughout the administrative proceeding 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 the persons who must be
named in a petition challenging a lead agency's decision
are those undertaking the publicly-funded project or
receiving the permit, as reflected in the record of
proceedings and identified in the NOD or NOE. 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
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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.
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) is not grounds for dismissal.
AB 2814 (Simitian) Chapter 522, Statutes of 2004, clarified
that failure to name potential parties, other than those
"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."
AB 499 (Hill) of 2009-10 sought 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,"
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and c) clarifying the dismissal provisions. AB 499 also
included a provision requiring the court to issue an order
providing additional time for service if the petitioner or
plaintiff demonstrates to the court's satisfaction that
there was a good faith effort to effect service to the
recipient of project approval. Governor Schwarzenegger
vetoed AB 499, asserting that this additional provision
"gives plaintiffs multiple bites at the apple to file CEQA
lawsuits" and that AB 499 "requires a lead agency to list
only the project applicant in the notice."
4) Trying again . AB 320 strikes the provision that concerned
Governor Schwarzenegger, and references "person or persons"
- thereby also addressing Governor Schwarzenegger's concern
over possibly listing "only the project applicant . . . "
SOURCE : Assemblymember Hill
SUPPORT : Association of California Water Agencies,
California League of Conservation Voters,
California Native Plant Society, California
State Parks Foundation, Clean Water Action,
Environmental Defense Fund, Natural Resources
Defense Council, Planning and Conservation
League, Sierra Club California
OPPOSITION : American Council of Engineering Companies
(based on introduced version of AB 320)