BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 320|
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THIRD READING
Bill No: AB 320
Author: Hill (D)
Amended: 6/14/11 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 4-1, 6/20/11
AYES: Simitian, Hancock, Kehoe, Lowenthal
NOES: Strickland
NO VOTE RECORDED: Blakeslee, Pavley
SENATE JUDICIARY COMMITTEE : 3-2, 6/28/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 46-27, 5/12/11 - See last page for vote
SUBJECT : Environmental Quality Act: determination:
disputes
SOURCE : Author
DIGEST : This bill clarifies the persons who must be
named as a real party in interest in complaints for
specified violations of California Environmental Quality
Act by removing reference to "any recipient of approval,"
and, instead, require a petitioner or plaintiff to name, as
a real party in interest, any person or persons identified
by the public agency in its notice of determination, or
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notice of exemption, that is filed with the Office of
Planning and Research. This bill requires those notices to
list the person or persons whose activity fell under the
definition of "project." If no notice is filed, the
petitioner or plaintiff shall name the same persons that
are reflected in the agency's record of proceedings for the
project, as specified.
ANALYSIS : To enforce the requirements of California
Environmental Quality Act (CEQA), a civil action may be
brought under several code sections to attack, review, set
aside, void or annul the acts or decisions of a public
agency for noncompliance with CEQA. In that action,
existing law requires the plaintiff or petitioner to name
and serve, as a real party in interest, any "recipient of
an approval" that is the subject of the action or
proceeding. Failure to name potential parties, other than
the recipients of an approval, is not ground for dismissal
pursuant to the Code of Civil Procedure section relating to
necessary and indispensible parties. Since those actions
must generally be filed within 30 days after approval of a
project, failure to name a recipient of approval that is a
necessary and indispensable party within that 30 day period
may result in dismissal of the action. (See County of
Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 40.)
Enacted in 1970, CEQA requires state and local agencies to
follow a set protocol to disclose and evaluate the
significant environmental impacts of proposed projects and
adopt feasible measures to mitigate those impacts. CEQA
itself applies to "projects" undertaken or requiring
approval by state and local agencies, and, if more than one
agency is involved, CEQA requires one of the agencies to be
the "lead agency." The subsequent environmental review
process required by CEQA consists of: (1) determining if
the activity is a project; (2) determining if the project
is exempt from CEQA; and (3) performing an initial study to
identify the environmental impacts and, depending on the
findings, prepare a Negative Declaration (no significant
impacts), Mitigated Negative Declaration (significant
impacts but project is revised to avoid or mitigate those
impacts), or an Environmental Impact Report (significant
impacts).
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This bill:
1. Requires the lead agency to identify the recipient or
recipients of the agency's approval in its notice of
determination or exemption.
2. Provides that the recipient of project approval
identified by the lead agency is a real party in
interest that a petitioner or plaintiff must name, and
serve, in its petition or complaint.
3. Provides that the petition or complaint is subject to
dismissal if the petitioner or plaintiff fails to serve
any recipient of approval within the statute of
limitations period.
4. Provides that the bill's revisions apply only to public
agency decisions for which a notice was filed on or
before December 31, 2011.
Background
County of Imperial v. Superior Court . As noted above,
petitioner or plaintiffs must name "any recipient of an
approval" as a real party in interest in a CEQA action.
Existing law provides that failure to name potential
parties, other than a recipient of an approval, is not
grounds for dismissal under Section 389 of the Code of
Civil Procedure. That section, concerning necessary and
indispensable parties, requires the joinder of a person if:
(1) in his/her absence, complete relief cannot be
accorded; or (2) the person claims an interest relating to
the subject of the action and his/her absence may impair or
impede his/her ability to protect that interest, or, leave
any of the current parties subject to a substantial risk of
incurring inconsistent obligations. If the person cannot
be made a party, the court must determine whether to
proceed, or, dismiss the action without prejudice because
the absent person is "indispensable." This bill seeks to
respond to the arguable lack of clarity as to the
"recipient of approval" by providing a bright-line rule as
to which persons must be named in the CEQA complaint (which
must be filed within 30 days of specified actions by a
public agency). The author further asserts: "The
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ambiguity . . . lies in the fact that the real party in
interest is described as a 'recipient of approval.' Who
counts as a recipient of approval? This �is] the
deficiency that was exposed in the 2007 case of County of
Imperial v Superior Court . . ."
In that case, the Court of Appeal, Third Appellate
District, upheld the trial court's holding that two water
districts (Metropolitan and Coachella) were "recipients of
approval" and that the County of Imperial failed to add
them as indispensable parties within the limitations
period. The court noted that:
In comments before the Board at the time of the
protest dismissal, Metropolitan argued the Board would
not be considering approval of any action by
Metropolitan or Coachella . . . After withdrawing
their protests before the Board, Metropolitan and
Coachella ceased participating in the Board
proceeding. Neither party submitted any briefing or
exhibits, nor did either party participate in the
Board's public hearing. County of Imperial v.
Superior Court (2007) 152 Cal.App.4th at 22-23.
Despite lack of participation, the court of appeal agreed
with the trial court that the two water districts were
"recipients of approval," indispensible parties, and that
"�t]he trial court carefully balanced the various factors
and determined, on balance, that equity was best served by
dismissing the action for failure to name Coachella and
Metropolitan." (Id. at 14.) By removing references to
"recipients of approval," and, instead, requiring specified
persons to be named as real parties in interest, the
provisions of this bill would appear to provide a definite
list of persons who must be named as real parties in
interest under CEQA.
From a policy standpoint, it appears preferable to provide
as much certainty as possible to plaintiffs regarding who
is required to be named under CEQA. A coalition of
environmental organizations, in support, assert that:
To prevent important cases from being dismissed, CEQA
practitioners are forced to over-name and serve
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parties who might or might not be considered
indispensable to ensure they have not missed anyone.
In some cases, project proponents use project managers
who are designated as the "project applicant" but are
not always the actual recipient of approval. This
practice makes it extremely difficult, even for those
who participated in the CEQA process, to know who must
be included in a CEQA lawsuit. . . . AB 320 is an
extremely important and common sense measure which
will help bring clarity to the question of which
parties must be named in CEQA litigation.
Prior attempts to address the issues of the bill . Several
different versions of the present proposal have been
approved by the Legislature but subsequently vetoed. Most
recently, AB 499 (Hill), 2009 Session, would have required
the notice of determination or exception to name the
recipient of approval, defined "recipient of approval," and
clarified the dismissal provisions. In vetoing that bill,
Governor Schwarzenegger stated:
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 back-door attempt to lessen 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
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process.
SB 68 (Kuehl), 2008 Session, a related bill, was vetoed by
Governor Schwarzenegger due to concerns that:
This bill would shift responsibility to lead agencies,
under the California Environmental Quality Act (CEQA),
for determining the real parties in interest in a
potential legal challenge to a CEQA decision.
Under current law, the phrase "real party in interest"
in a CEQA appeal is described as "any recipient of an
approval." This bill is meant to indirectly address
this ambiguity, but it falls short of doing so because
it provides no clarification on the meaning of the
phrase and is unclear as to how lead agencies would
comply with the requirements of this bill.
Rather than resolving this ongoing issue, this bill
places upon the lead agency a new liability for
actions not directly related to its review of a
project.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 7/12/11)
Association of California Water Agencies
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 : (Verified 7/12/11)
American Council of Engineering Companies of California
ARGUMENTS IN SUPPORT : This bill is supported by the
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Imperial County Board of Supervisors and numerous
conservation and environmental advocacy groups that often
are parties of interest to CEQA legal proceedings and who
want to ensure their ability to participate in those
proceedings.
According to the author, "the main thrust of this bill is
to prevent groups and individuals from being dragged into
lawsuits in which they �do not] want any part. The naming
of a "recipient of approval" does not simply mean that this
party gets a letter in the mail explaining the situation.
These groups or individuals, pursuant to Section 21167.8,
are to meet, and failure to do so may result in sanctions
by the court. These groups, such as landowners who had
agreed to sell contingent on project approval, will not in
actuality need to prepare a legal defense, as they will be
dismissed, not needing or wanting to be a party to the
proceeding. This is a pointless exercise resulting from
both the 2007 case and the inability of previous versions
of this bill to get a Governor's signature. Within this
question of who should be named is the oft-neglected
question of who shouldn't be named."
ARGUMENTS IN OPPOSITION : The American Council of
Engineering Companies of California (ACEC California), in
opposition, states that they "do not believe that AB 320 is
a viable solution to the problem, if in fact it's even a
real problem, to impose joinder and service obligations on
plaintiffs and petitioners in CEQA review actions. We do
not believe that it is fair or appropriate to shift the
burden of determining who is to be named and served in the
lawsuit from the plaintiff or petitioner to the public
agencies. . . . �W]e believe there is a basic unfairness
in omitting from the service provisions for CEQA review
actions some of the real parties in interest whose rights
will be affected in the section." That opposition letter,
dated March 30, 2011, referred to a similar but
substantively different version of this bill that would
have required the public agency to actually name the
recipient of their approval.
In response to the above concerns, the author asserts, "The
philosophical problem is, given that the law does not
define the term 'recipient of approval,' it is not the
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petitioner but the court which determines who is to be
named, and the court can only make that determination after
the naming has taken place. This rolling of the dice may
appear to induce uncertainty into the petitioner's case and
serve as barrier to the introduction of CEQA lawsuits, but
adding names to a list is no barrier at all. This bill in
no way limits a company's ability to intervene in a case it
wants to be in, though it does limit a company's "right" .
. . be dragged into a proceeding where it would rather
not."
ASSEMBLY FLOOR :
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Campos, Carter, Chesbro, Davis, Dickinson, Eng,
Feuer, Fong, Fuentes, Furutani, Gatto, Gordon, Hall,
Hayashi, Roger Hern�ndez, Hill, Hueso, Huffman, Lara,
Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan,
Perea, V. Manuel P�rez, Skinner, Solorio, Swanson,
Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Grove, Hagman, Halderman, Harkey,
Huber, Jeffries, Jones, Knight, Logue, Mansoor, Miller,
Morrell, Nestande, Nielsen, Norby, Olsen, Silva, Smyth,
Valadao, Wagner
NO VOTE RECORDED: Charles Calderon, Cedillo, Galgiani,
Garrick, Gorell, Portantino, Torres
DLW:do 7/13/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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