Amended in Assembly January 6, 2014

Amended in Assembly March 11, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 515

Introduced by Assembly Member Dickinson

February 20, 2013

begin delete An act to amend Sections 21167.1, 21167.8, 21168.9, and 21177 of, and to add Sections 21166.5 and 21167.15 to, the Public Resources Code, relating to environmental quality. end delete begin insert An act to amend Section 21168.9 of the Public Resources Code, relating to environmental quality. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 515, as amended, Dickinson. Environmental quality: California Environmental Quality Act: begin delete judicial review. end delete begin insert writ of mandate. end insert

begin insert

(1) The California Environmental Quality Act requires the court, if the court finds that a public agency has violated the requirements of the act, to issue an order, in the form of a peremptory writ of mandate, specifying what actions by the public agency are necessary to comply with the requirements of the act.

end insert begin insert

This bill would require the writ to specify the time by which the public agency is to make an initial return of the writ containing specified information. Because a public agency would be required to file an initial return of a writ, this bill would impose a state-mandated local program.

end insert begin insert

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert

begin insert This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. end insert

begin delete

The California Constitution vests the judicial power of the state in the Supreme Court, the courts of appeal, and the superior courts. Existing law establishes a superior court of one or more judges in each county and provides that the superior courts have original jurisdiction, except as provided in the Constitution. Existing law requires the presiding judge of each superior court to distribute the business of the court among the judges, and to prescribe the order of business, subject to the rules of the Judicial Council.

end delete begin delete

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a judicial review of determinations made by a public agency pursuant to CEQA and requires actions or proceedings brought pursuant to CEQA to be given preference over all other civil actions by a trial court. Existing law requires the superior courts in all counties with a population of more than 200,000 to designate one or more judges to develop expertise in CEQA and related land use and environmental laws, so that those judges will be available to hear, and quickly resolve, actions or proceedings brought pursuant to CEQA. If the court finds that a determination made by a public agency pursuant to CEQA violates the requirements of CEQA, CEQA requires the court to issue an order, in the form of a peremptory writ of mandate, specifying what action by the public agency is necessary to comply with CEQA.

end delete begin delete

This bill would establish a CEQA compliance division of the superior court in a county in which the Attorney General maintains an office and would vest the division with original jurisdiction over actions of proceedings brought pursuant to CEQA and joined matters related to land use and environmental laws. The bill would require the Judicial Council to adopt rules for establishing, among other things, protocol to govern the administration and efficient operation of the division, so that those judges assigned to the division will be able to hear and quickly resolve those actions or proceedings. The bill would provide that decisions of the CEQA compliance division of the superior court may be reviewed by way of a petition for an extraordinary writ. The bill would require the CEQA compliance division to issue a preliminary decision before the opportunity for oral argument is granted. If the CEQA compliance division of the superior court finds that a determination of a public agency violated CEQA, the bill would require the court’s order to specify what action taken by the public agency was in error and what specific action by the public agency is necessary to comply with CEQA. The bill would prohibit an action or proceeding pursuant to CEQA from being brought unless the alleged grounds of noncompliance were presented to the public agency with enough specificity that the public agency could reasonably respond to the alleged violation. The bill would prohibit a person from maintaining an action or proceeding pursuant to CEQA unless that person objected during the administrative process with specificity as to how the public agency’s response to the alleged violation is inadequate.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 21168.9 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

21168.9.  

(a) If a court finds, as a result of a trial, hearing, or
remand from an appellate court, that any determination, finding,
or decision of a public agency has been made without compliance
with this division, the court shall enter begin delete an order that includes end delete begin insert a
judgment directing the issuance of a peremptory writ of mandate
specifying what action by the public agency is necessary to comply
with this division, including end insert one or more of the following:

(1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part.

(2) If the court finds that a specific project activity or activities
will prejudice the consideration or implementation of particular
mitigation measures or alternatives to the project, a mandate that
the public agency and any real parties in interest suspend any or
all specific project activity or activities, pursuant to the
determination, finding, or decision, that could result in an adverse
change or alteration to the physical environment, until the public
agency has taken any actions that may be necessary to bring the
determination, finding, or decision into compliance with this
division.

(3) A mandate that the public agency take specific action as
may be necessary to bring the determination, finding, or decision
into compliance with this division.

(b)  begin delete Any order end delete begin insert (1) end insert begin insert   end insert begin insert A writ issued end insert pursuant to subdivision (a) shall
include only those mandates begin delete which end delete begin insert that end insert are necessary to achieve
compliance with this division and begin insert shall address end insert only those specific
project activities in noncompliance with this division. begin delete The order
shall be made by the issuance of a peremptory writ of mandate
specifying what action by the public agency is necessary to comply
with this division. However, the order end delete

begin insert (2) end insert begin insert   end insert begin insert The writ end insert shall be limited to that portion of a determination,
finding, or decision or the specific project activity or activities
found to be in noncompliance only if a court finds begin delete that (1) the end delete begin insert all
of the following: end insert

begin insert (A) end insert begin insert   end insert begin insert The end insert portion or specific project activity or activities are
begin delete severable, (2) severance end delete begin insert severable. end insert

begin insert (B) end insert begin insert   end insert begin insert Severance end insert will not prejudice complete and full compliance
with this begin delete division, and (3) the end delete begin insert division. end insert

begin insert (C) end insert begin insert   end insert begin insert The end insert court has not found the remainder of the project to be
in noncompliance with this division. begin delete The trial court shall retain
jurisdiction over the public agency’s proceedings by way of a
return to the peremptory writ until the court has determined that
the public agency has complied with this division. end delete

begin insert

(3) The writ shall include the time by which the public agency
shall make an initial return of the writ.

end insert begin insert

(4) The trial court shall retain jurisdiction over the public
agency’s proceedings by way of a return to the peremptory writ
until the court has determined that the public agency has complied
with this division.

end insert begin insert

(c) An initial return of the writ shall describe all of the
following:

end insert begin insert

(1) The actions the public agency will take to come into
compliance with the writ and this division.

end insert begin insert

(2) A schedule for these actions.

end insert begin insert

(3) In the case of a negative declaration, mitigated negative
declaration, or environmental impact report found not to be in
compliance with this division, the public comment period
applicable to the agency’s revision of the document.

end insert begin delete

(c) Nothing in this section authorizes

end delete

begin insert (d) end insert begin insert   end insert begin insert This section does not authorize end insert a court to direct begin delete any end delete begin insert a end insert public
agency to exercise its discretion in any particular way. Except as
expressly provided in this section, begin delete nothing in end delete this section is begin insert not end insert
intended to limit the equitable powers of the court.

begin insert

(e) This section does not affect the authority of a court to allow
those determinations, findings, or decisions of a public agency
that are not found to be in violation of this division to proceed, if
allowing the public agency to proceed does not, in any manner,
prejudice complete and full compliance with this division.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end insert

begin delete

SECTION 1.  

Section 21166.5 is added to the Public Resources
Code, to read:

21166.5.  

(a) There shall be a CEQA compliance division of
the superior court in a county in which the Attorney General
maintains an office.

(b) The CEQA compliance division shall have original
jurisdiction over actions or proceedings brought pursuant to this
division, as well as other matters related to land use and
environmental laws that may be joined with those actions or
proceedings.

(c) The judicial council shall adopt rules that do all of the
following:

(1) Establish standards for determining the appropriate superior
court with a CEQA compliance division in which an action or
proceeding brought pursuant to Section 21167, 21168, or 21168.5
may be filed.

(2) Establish protocol to govern the administration and efficient
operation of the CEQA compliance division to accomplish the
goals of Section 21167.1.

(3) Establish appropriate qualifications for the assignment of
judges to the CEQA compliance division based on the knowledge
and education of a judge in this division.

SEC. 2.  

Section 21167.1 of the Public Resources Code is
amended to read:

21167.1.  

(a) In all actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5, including the hearing of an
action or proceeding on appeal from a decision of a lower court,
all courts in which the action or proceeding is pending shall give
the action or proceeding preference over all other civil actions, in
the matter of setting the action or proceeding for hearing or trial,
and in hearing or trying the action or proceeding, so that the action
or proceeding shall be quickly heard and determined. The court
shall regulate the briefing schedule so that, to the extent feasible,
the court shall commence hearings on an appeal within one year
of the date of the filing of the appeal.

(b) To ensure that actions or proceedings brought pursuant to
Sections 21167, 21168, and 21168.5 may be quickly heard and
determined by judges with expertise in this division and related
land use and environmental laws, actions or proceedings brought
pursuant to Sections 21167, 21168, and 21168.5 shall be heard by
the CEQA compliance division of an appropriate superior court,
as determined by rules developed pursuant to subdivision (c) of
Section 21166.5.

(c) In an action or proceeding filed pursuant to this chapter that
is joined with any other cause of action, the court, upon a motion
by any party, may grant severance of the actions. In determining
whether to grant severance, the court shall consider such matters
as judicial economy, administrative economy, and prejudice to
any party.

(d) Notwithstanding any other law, review of the decision of
the CEQA compliance division of the superior court shall be
pursuant to a petition for an extraordinary writ.

SEC. 3.  

Section 21167.8 of the Public Resources Code, as
amended by Section 7 of Chapter 496 of the Statutes of 2010, is
amended to read:

21167.8.  

(a) Not later than 20 days from the date of service
upon a public agency of a petition or complaint brought pursuant
to Section 21167, the public agency shall file with the court a
notice setting forth the time and place at which all parties shall
meet and attempt to settle the litigation. The meeting shall be
scheduled and held not later than 45 days from the date of service
of the petition or complaint upon the public agency. The notice of
the settlement meeting shall be served by mail upon the counsel
for each party. If the public agency does not know the identity of
counsel for a party, the notice shall be served by mail upon the
party for whom counsel is not known.

(b) At the time and place specified in the notice filed with the
court, the parties shall meet and confer regarding anticipated issues
to be raised in the litigation and shall attempt in good faith to settle
the litigation and the dispute that forms the basis of the litigation.
The settlement meeting discussions shall be comprehensive in
nature and shall focus on the legal issues raised by the parties
concerning the project that is the subject of the litigation.

(c) The settlement meeting may be continued from time to time
without postponing or otherwise delaying other applicable time
limits in the litigation. The settlement meeting, or a mediation
proceeding that is conducted pursuant to Chapter 9.3 (commencing
with Section 66030) of Division 1 of Title 7 of the Government
Code, is intended to be conducted concurrently with any judicial
proceedings.

(d) If the litigation is not settled, the court, in its discretion, may,
or at the request of a party, shall, schedule a further settlement
conference before a judge of the CEQA compliance division.

(e) The failure of a party, who was notified pursuant to
subdivision (a), to participate in the litigation settlement process,
without good cause, may result in an imposition of sanctions by
the court.

(f) Not later than 30 days from the date that notice of
certification of the record of proceedings was filed and served in
accordance with Section 21167.6, the petitioner or plaintiff shall
file and serve on all other parties a statement of issues that the
petitioner or plaintiff intends to raise in a brief or at a hearing or
trial. Not later than 10 days from the date on which the respondent
or real party in interest has been served with the statement of issues
from the petitioner or plaintiff, each respondent and real party in
interest shall file and serve on all other parties a statement of issues
which that party intends to raise in a brief or at a hearing or trial.

(g) This section shall remain in effect only until January 1, 2016,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2016, deletes or extends that date.

SEC. 4.  

Section 21167.8 of the Public Resources Code, as
added by Section 8 of Chapter 496 of the Statutes of 2010, is
amended to read:

21167.8.  

(a) Not later than 20 days from the date of service
upon a public agency of a petition or complaint brought pursuant
to Section 21167, the public agency shall file with the court a
notice setting forth the time and place at which all parties shall
meet and attempt to settle the litigation. The meeting shall be
scheduled and held not later than 45 days from the date of service
of the petition or complaint upon the public agency. The notice of
the settlement meeting shall be served by mail upon the counsel
for each party. If the public agency does not know the identity of
counsel for any party, the notice shall be served by mail upon the
party for whom counsel is not known.

(b) At the time and place specified in the notice filed with the
court, the parties shall meet and confer regarding anticipated issues
to be raised in the litigation and shall attempt in good faith to settle
the litigation and the dispute which forms the basis of the litigation.
The settlement meeting discussions shall be comprehensive in
nature and shall focus on the legal issues raised by the parties
concerning the project that is the subject of the litigation.

(c) The settlement meeting may be continued from time to time
without postponing or otherwise delaying other applicable time
limits in the litigation. The settlement meeting is intended to be
conducted concurrently with any judicial proceedings.

(d) If the litigation is not settled, the court, in its discretion, may,
or at the request of any party, shall, schedule a further settlement
conference before a judge of the CEQA compliance division.

(e) The failure of any party, who was notified pursuant to
subdivision (a), to participate in the litigation settlement process,
without good cause, may result in an imposition of sanctions by
the court.

(f) Not later than 30 days from the date that notice of
certification of the record of proceedings was filed and served in
accordance with Section 21167.6, the petitioner or plaintiff shall
file and serve on all other parties a statement of issues which the
petitioner or plaintiff intends to raise in any brief or at any hearing
or trial. Not later than 10 days from the date on which the
respondent or real party in interest has been served with the
statement of issues from the petitioner or plaintiff, each respondent
and real party in interest shall file and serve on all other parties a
statement of issues which that party intends to raise in any brief
or at any hearing or trial.

(g) This section shall become operative on January 1, 2016.

SEC. 5.  

Section 21167.15 is added to the Public Resources
Code, immediately following Section 24167.10, to read:

21167.15.  

To ensure the efficient use of the court’s time and
a focused discussion of the issues at oral arguments, the CEQA
compliance division of the superior court shall first issue a
preliminary decision before the opportunity for oral argument is
granted.

SEC. 6.  

Section 21168.9 of the Public Resources Code is
amended to read:

21168.9.  

(a) If a court finds, as a result of a trial, hearing, or
remand from an appellate court, that any determination, finding,
or decision of a public agency has been made without compliance
with this division, the court shall enter an order that includes one
or more of the following:

(1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part.

(2) If the court finds that a specific project activity or activities
will prejudice the consideration or implementation of particular
mitigation measures or alternatives to the project, a mandate that
the public agency and any real parties in interest suspend any or
all specific project activity or activities, pursuant to the
determination, finding, or decision, that could result in an adverse
change or alteration to the physical environment, until the public
agency has taken any actions that may be necessary to bring the
determination, finding, or decision into compliance with this
division.

(3) A mandate that the public agency take specific action as
may be necessary to bring the determination, finding, or decision
into compliance with this division.

(b) An order pursuant to subdivision (a) shall include only those
mandates that are necessary to achieve compliance with this
division and only those specific project activities in noncompliance
with this division. The order shall be made by the issuance of a
peremptory writ of mandate specifying what actions were in error
and what specific action by the public agency is necessary to
comply with this division. However, the order shall be limited to
that portion of a determination, finding, or decision or the specific
project activity or activities found to be in noncompliance only if
a court finds that (1) the portion or specific project activity or
activities are severable, (2) severance will not prejudice complete
and full compliance with this division, and (3) the court has not
found the remainder of the project to be in noncompliance with
this division. The CEQA compliance division of the superior court
shall retain jurisdiction over the public agency’s proceedings by
way of a return to the peremptory writ until the court has
determined that the public agency has complied with this division.

(c) Nothing in this section authorizes a court to direct any public
agency to exercise its discretion in any particular way. Except as
expressly provided in this section, nothing in this section is
intended to limit the equitable powers of the court.

SEC. 7.  

Section 21177 of the Public Resources Code, as
amended by Section 11 of Chapter 496 of the Statutes of 2010, is
amended to read:

21177.  

(a) An action or proceeding shall not be brought
pursuant to Section 21167 unless the alleged grounds for
noncompliance with this division were presented to the public
agency orally or in writing by any person during the public
comment period provided by this division or prior to the close of
the public hearing on the project before the issuance of the notice
of determination with enough specificity that the public agency
could reasonably respond to the alleged violation.

(b) A person shall not maintain an action or proceeding unless
that person objected to the approval of the project orally or in
writing during the public comment period provided by this division
or prior to the close of the public hearing on the project before the
filing of the notice of determination pursuant to Sections 21108
and 21152.

(c) A person shall not maintain an action or proceeding unless
the person objected during the administrative process with
specificity as to how the public agency’s response to the alleged
violation is inadequate under this division.

(d) This section does not preclude any organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivisions (a) and (b). The grounds for noncompliance may have
been presented directly by a member or by a member agreeing
with or supporting the comments of another person.

(e) This section does not apply to the Attorney General.

(f) This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise
those objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.

(g) This section shall remain in effect only until January 1, 2016,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2016, deletes or extends that date.

SEC. 8.  

Section 21177 of the Public Resources Code, as added
by Section 12 of Chapter 496 of the Statutes of 2010, is amended
to read:

21177.  

(a) An action or proceeding shall not be brought
pursuant to Section 21167 unless the alleged grounds for
noncompliance with this division were presented to the public
agency orally or in writing by any person during the public
comment period provided by this division or prior to the close of
the public hearing on the project before the issuance of the notice
of determination with enough specificity that the public agency
could reasonably respond to the alleged violation.

(b) A person shall not maintain an action or proceeding unless
that person objected to the approval of the project orally or in
writing during the public comment period provided by this division
or prior to the close of the public hearing on the project before the
filing of notice of determination pursuant to Sections 21108 and
21152.

(c) A person shall not maintain an action or proceeding unless
the person objected during the administrative process with
specificity as to how the public agency’s response to the alleged
violation is inadequate under this division.

(d) This section does not preclude any organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivision (b).

(e) This section does not apply to the Attorney General.

(f) This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise
those objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.

(g) This section shall become operative on January 1, 2016.

end delete